Allen Mendenhall is a staff attorney to Chief Justice Roy S. Moore of the Supreme Court of Alabama, an adjunct professor at Faulkner University Thomas Goode Jones School of Law, and managing editor of Southern Literary Review. His forthcoming book is Literature and Liberty. Visit his website at AllenMendenhall.com.

Introduction

Saying anything celebratory or positive about Oliver Wendell Holmes, Jr. will invariably provoke the ire of commentators on both the left and the right. Few jurists are as controversial or confusing. This essay avoids passing judgment on him or his jurisprudence and does not praise or condemn his judicial opinions and dissents; instead, it makes the case that Holmes’s jurisprudence reflects nomocracy as described in the “Editorial Statement” of this magazine. For one who endorses nomocracy or nomocratic constitutionalism, this proposition might seem welcome or unwelcome, depending on what one has read or heard about Holmes. Most educated…