In this episode, Jeffrey Rosen, president and CEO of the National Constitution Center, talks with C-SPAN’s Peter Slen about the life and career of Supreme Court Justice Oliver Wendell Holmes, Jr. The conversation is part of C-SPAN’s Books That Shaped America series, which explores key works from American history that have had a major impact on society. This discussion features Holmes’ The Common Law, written in 1881. You can find all segments from the C-SPAN series at c-span.org/booksthatshapedamerica.
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This episode was produced by Lana Ulrich, Bill Pollock, and the C-SPAN team. It was engineered by Bill Pollock. Research was provided by Samson Mostashari.
Participants
Peter Slen is senior executive producer and host at C-SPAN.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Oliver Wendell Holmes, “The Common Law,” (1881)
Excerpt from Interview: Jeff Rosen on Justice Oliver Wendell Holmes upholding laws he disliked due to principle of radical deference to majority decisions.
Jeffrey Rosen: Wonderful. So great. You were inspired by Louis Menand's book to learn more about Holmes. And, and two really important questions. Did he come up with the result and reason backward? I don't think that's quite fair to him. One of his greatest dissents. And check it out 'cause it's short in, it's inspiring. It's in the Lochner case. He's dissenting from the court's decision to strike down maximum hour laws in New York. And he says famously, "The Constitution does not enact Mr. Herbert Spencer's social statics," by which he means it's this arresting citation to a social Darwinist who thinks that laissez faire economics is correct. But Holmes says the Constitution is not meant to embody my ideas of good economics or any particular judges. It's made for people of fundamentally differing points of view.
And therefore, I think his basic instinct was to defer as long as he thought a reasonable person could embrace the result. So in Lochner, he says, "I may not agree with these maximum hour laws." In fact, he didn't. He himself was a fair guy, but because a reasonable legislator could believe that, then he would uphold it. In fact, Holmes was not a Jeffersonian majoritarian in the sense that he didn't think the majority would always come up with good results. He famously said to his sister "If my fellow citizens want to go to hell, I'll help them. It's my job." even as he went on at one point to say, "I loathe the thick fingered clowns, we call the people." I mean, he was a more extreme kind of aristocratic disdain for majorities, but he said the alternative was violence.
So that's a way of trying to answer your really important question to say generally, he thought, "I'm not gonna do what I think is the right answer. I'm gonna defer to majorities as long as a reasonable person could do it." And then he had another test, which is really memorable. He said, "I'll uphold a law unless it makes me puke." That's a vivid way of putting it, but it kind of summed up his idea that there were certain can't helps, as he put it. A judge can't help strike something down and, and he would do that, but nothing more. That leads to Buck v. Bell, which is, of course, such an important question as you suggest. It was an infamous decision upholding mandatory sterilization laws or eugenic laws mandating the sterilization of so-called imbecile. And far from being an imbecile, Carrie Buck in that case was wrongly identified as being mentally challenged and was sterilized without her knowledge or consent.
And the Supreme Court in a decision written by Holmes with a single dissenter, it was an eight to one decision, upholds these laws. The only dissenter was Justice Butler, a co- a conservative Catholic, who found that these laws offended his sense of natural law and morality. What's so striking and jarring about Holmes's decision is not only did he uphold the law, 'cause he disagreed with it, in this case, he actually agreed with the law. He wrote to his friend Harold Laski, the next day, "This morning, I upheld the law mandating the sterilization of imbeciles. Nothing I've done all week has given me so much pleasure." So when he said in those memorable infamous words, it's better for all the world, if instead of continuing to propagate their kind, we cut the fallopian tubes of imbecile, three generations of imbecile is enough. Something just shocking.
He himself was an enthusiastic eugenics. I'll just say one more thing, that in those days, eugenics was popular among many progressives of all stripes, including progressive religious denominations. It was a kind of techno positivism of its day. A good reminder that our beliefs about perfectability through technology often lead to results that future generations find shocking. But Holmes was a eugenicist, and he upheld those laws. The only thing to say in his defense as a justice is he upheld laws, he liked like the eugenic laws, or he upheld laws that he hated, like protections for so called anarchists and communists because of his general commitment to radical deference.
Jeffrey Rosen on how Justice Oliver Wendell Holmes' incitement test, endorsing raises challenges in the internet age, questioning the measurement of intent and the impact of technology not anticipated by the founders.
Jack: What would Holmes think about the internet where people are, in fact, looking for rooms full of people so they can get them all stirred up and then they yell fire to stir up a lot of anger?
Jeffrey Rosen: Great question. So important the question gets to the heart of Holmes's incitement test. And in the Abrams decision, he not only said that speech had to be strongly protected, but he endorsed a version of the test that Louis Brandeis would articulated. That speech can only be restricted if it's intended to, and likely to cause imminent violence. So it's not enough to say something that someone may be possibly in the future, might react badly to. It has to be intended to create imminent violence, and the violence has to be imminent and serious.
The Supreme Court embraced that test in the Brandenburg case in 1969, decades after Holmes and Brandeis articulated it. But you really are identified a central challenge of the internet age. First of all, how can you measure whether a speech spoken in one place is both intended to and likely to cause violence somewhere else? Is, is the likelihood of incitement ripening into violence greater in a virtual age? And also, what should the Constitution do about technologies the founders didn't anticipate? Holmes has an amazing opinion that we haven't talked about in the Olmsted case, where the Supreme Court upholds the use of wiretapping on the grounds that you need a physical trespass to trigger the Fourth Amendment, and you can tap someone's phones without trespassing in their homes.
Holmes descents like Brandeis, see, looks forward to the age of the electronic wires and insist that constitution shouldn't be frozen with a particular technology. And he also says that it's very uncivilized for the government to spy on citizens, and the framers wouldn't have liked that regardless of the technology. So he definitely would've been very open to the challenge of translating the Constitution into an internet age. And what he would've made at the incitement test, of course is remains to be seen.
Peter Slen: Holmes does not seem to be deferential in the ruling on the Shank case. Please comment on Holmes arguments and his position on Shank VUS 1919.
Jeffrey Rosen: Crucial question is very important. Why was it that at the end of his life, after having spent his decades essentially upholding laws that he liked and that he didn't like, and almost never striking down anything as long as a reasonable person could disagree might, might disagree with him? He writes, at the end of his life, "These libertarian free speech decisions that are among the greatest efforts to restrict government in all of American history." The reason he gives is the marketplace of ideas that basically ordinarily you assume that legislators have to have their will, because unless majorities can wreak their desires into law, open violence will result. But in exception to that comes in cases where the channels of democracy themselves are threatened to be choked off.
And if it's possible for a dominant majority to refuse to admit into the public square certain evidence, then you can't have properly functioning free marketplace of ideas. You can't be confident that good ideas will triumph over bad ones if people aren't able to hear all sides and make up their own minds. So there is a philosophical and constitutional consistency to his lack of deference in First Amendment cases, even though he's so much more deferential in almost every other case.
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