This poem first appeared in The Echo.
A box of cereal, stale, ants running
Up the side, two brown bananas that
He says cleanse the pores
(If rubbed thoroughly),
An unwrapped chocolate bar
And a plethora of cans, unopened:
In a locked pantry, Little Maddy sits
Plucking the stems
Off Granny-Smiths. Just ten more
Minutes. Maddy, weary, wondering
Just when daddy would come home.
Time: the pantry is unlocked
And out comes light
And apples and, lastly, Maddy.
Daddy reaches
For the two rotting bananas,
Notes can upon unopened can,
Unwraps the chocolate bar,
Smears chocolate on his fingers,
Stops, thinks how unlikely it is
For apples to lose their stems.
This article originally appeared here at LewRockwell.comand was reposted on this blog last year in July. I repost it here again this year for all those who are taking the bar exam this week and next week.
Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules — also known as black letter law — these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.
The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.
As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.
So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.
Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government — local, state, and federal — to gain it for them.”
The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status. The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.
The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.
At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.
Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well.
Bar exams have been around in America since the eighteenth century, but before the twentieth century they were relaxed and informal and could have been as simple as interviewing with a judge. At the zenith of the Progressive Era, however, they had become an exclusive licensing agency for the government. It is not surprising that at this time bar associations became, in some respects, as powerful as the states themselves. That’s because bar associations were seen, as they are still seen today, as agents and instrumentalities of the state, despite that their members were not, and are not, elected by the so-called public.
In our present era, hardly anyone thinks twice of the magnificent powers exercised and enjoyed by state bar associations, which are unquestionably the most unquestioned monopolies in American history. What other profession than law can claim to be entirely self-regulated? What other profession than law can go to such lengths to exclude new membership and to regulate the industry standards of other professions?
Bar associations remain, on the whole, as progressive today as they were at their inception. Their calls for pro bono work and their bias against creditors’ attorneys, to name just two examples, are wittingly or unwittingly part of a greater movement to consolidate state power and to spread ideologies that increase dependence upon the state and “the public welfare.” It is rare indeed to find the rhetoric of personal responsibility or accountability in a bar journal. Instead, lawyers are reminded of their privileged and dignified station in life, and of their unique position in relation to “members of the public.”
The thousands of men and women who will sit for the bar exam this month are no doubt wishing they didn’t have to take the test. I wish they didn’t have to either; there should be no bar exam because such a test presupposes the validity of an authoritative entity to administer it. There is nothing magical about the practice of law; all who are capable of doing it ought to have a chance to do it. That will never happen, of course, if bar associations continue to maintain total control of the legal profession. Perhaps it’s not just the exam that should go.
This essay originally appeared here in storySouth.
Nelle Harper Lee is in her eighties and spending her final years embroiled in lawsuits. For some time I’ve awaited the publication of a book she is rumored to have written about an Alabama salesman who got wealthy by murdering multiple wives and collecting the life insurance proceeds. My sources—all reliable people—insist the book is complete, but I don’t know whether it is or will be published.
One of my earliest memories is of a bookcase at my grandparents’ beach house in Destin, Florida, that held the films my grandparents considered classics: Dr. Zhivago, Patton, Gone With the Wind, and, among others, The Sound of Music. I remember one film above all because it was set off from the others, as if on display: To Kill a Mockingbird.
Few books have captivated me as has To Kill a Mockingbird. I first read it in elementary school. Too young to understand its complexities, I adored Atticus Finch and decided that I wanted to be a lawyer when I grew up. In high school, I named my dog Atticus. Then my sister got a cat. We named it Scout. Neither animal lived up to its namesake: Atticus was needy and pathetic, Scout skittish and brain-dead.
I was born into the book as others were born into money. My grandfather, Papa, was raised in Monroeville, Alabama, by way of Atmore, Alabama, where he was born in 1929. Because the Depression had hit Papa’s family especially hard, a charitable doctor in Atmore delivered Papa for free.
Shortly after Papa was born, Great-Granddaddy moved his family to Monroeville and worked for various car businesses, never earning much money. Papa, tall, strong, and handsome, was also something of an athlete. He earned a basketball scholarship to Auburn, left Monroeville for college, graduated, and then served in the U.S. Air Force. In 1955, he married his college sweetheart, Barbara Glenn Farish, my grandmother, whom I call “Nina.” Nina and Papa moved to Monroeville, where they lived until 1959. Their stay was short. Within a year, they left for Oklahoma and then returned to Alabama to live in Opelika until they made their final move to Atlanta. Papa’s Monroeville days were over, save for his visits to relatives.
Great-Granddaddy, however, lived in Monroeville until his death in 1991, the year his beloved Atlanta Braves made it to the World Series just one season after finishing with the worst record in baseball. I often visited Great-Granddaddy in his small, white-wood house with the gravel driveway and grass basketball court that was littered with pecans dropped from the trees above. Papa’s aunt, my Great Aunt Jewel, the only person I had known who was confined to a wheelchair—she had Polio—lived next door and owned one thousand cats. When I asked mom why Aunt Jewel lived near her brother for so long, mom said, “Health, sweetie.”
Monroeville was home to two of the 20th century’s greatest authors: Lee, the reclusive author of To Kill a Mockingbird, a Pulitzer Prize winner, and a recipient of the Presidential Medal of Freedom, who was born in Monroeville in 1926, and Truman Capote, Lee’s friend, schoolmate, and neighbor, who lived in Monroeville until the third grade, at which point he moved to New York City. He continued to summer in Monroeville with his aunts, whom Papa called “wild-haired” women. Lee was four years older than Papa. “She was,” he would say whenever he was probed about the age difference, “in the 12th grade when I was in the eighth grade.”
“Back then,” he used to say, referring to his childhood in Monroeville, “there was nothing to do, so kids had to use their imaginations.” He told me about how Lee and Capote had, despite their young ages and, in the case of Capote, lack of physical prowess, constructed a tree house with the assistance of Lee’s brother, Edwin. “They formed a club up there,” Papa said, “and to be in the club you had to do certain things.” Papa never said what those things were, but he did say that he had been admitted into the tree house.
†
I was in the third grade when I went to Great-Granddaddy’s funeral in Monroeville. I recall a few things clearly from that weekend: Great-Granddaddy’s open-casket, Swing-Low-Sweet-Chariot, and the endless pecans, which I gathered from the yard and placed into an old potato sack. Nina bought the pecans from me for one dollar. I thought I was rich, and in some ways, I was.
I also remember Papa telling stories about Lee and Capote that weekend. I delighted in these and shared them with my teachers, who seemed both impressed and skeptical. Papa said that Lee was a tomboy who wouldn’t wear dresses and was always in trouble. She would show up at the grass basketball court in his backyard and play with the boys. His descriptions of the girlhood Lee resemble her own portrayal of Scout Finch, whom the character Aunt Alexandra chastised for tomboyishness. The narrator of To Kill a Mockingbird says that Aunt Alexandra was “fanatical on the subject of [Scout’s] attire” and insisted that Scout “could not possibly hope to be a lady if [she] wore britches.” Whenever Scout declared that she “could do nothing in a dress,” especially not play, Aunt Alexandra would inform her that girls weren’t “supposed to be doing things that required pants.”
Papa’s attitude toward Capote was mixed. He took pride in him, but didn’t want to glorify him, either. If I asked Papa to describe the boyhood Truman, he would answer, flatly, “Capote was a weird boy.” I had to press him for details, perhaps because he did not want to admit that he and his friends had, as one might expect of seven and eight year old boys, teased Capote.
Capote was not like the other kids and did not fit in. He frequented the drug store with a satchel full of papers and pencils, wearing knickers, stockings, and a funny cap and talking with flute-like intonations. He would sit in the drug store for hours, drinking Coca-Cola and producing paper after paper from his satchel, scribbling lines of prose and stacking the finished pages until he’d made a paper tower stretching from the table to his chin.
“What are you doing in there, boy?” Papa and the other boys would ask.
To which Capote would say, “I’m writing a book.” Then Papa and the other boys would laugh because the notion that someone in Monroeville, Alabama, could write a whole book was, they thought, silly, if not downright preposterous.
Capote proved my grandfather wrong and wrote many books; Papa came to admire Capote.
Papa was not especially vocal about his relationship to Lee or Capote until he retired, but once he retired, it was hard to keep him quiet about it. When I went away for college, he made a name for himself at the local high school by lecturing in my cousins’ classrooms. He drawled on about Monroeville and Lee and To Kill a Mockingbird and specified the residents on whom Lee had based her characters. “Bubba,” Nina objected more than once—Papa didn’t like the nickname Bubba, and only Nina could call him that—“you best not tell all about the Monroeville folks. You’re likely to get sued.”
Papa laughed, kept giving lectures, and never got sued.
†
Open to the first few pages of To Kill a Mockingbird, and you’ll see a disclaimer: “This book is a work of fiction. Names, characters, places, and incidents are the product of the author’s imagination or are used fictitiously. Any resemblance to actual events, locales, persons, living or dead, is coincidental.” If you had asked Papa about this disclaimer, he would have told you it was hogwash.
When I graduated from college, having earned a degree in literature, I moved to Japan to teach English. Before leaving the States, I arranged to have supper with Papa so we could talk about Harper Lee.
He and I sat at his kitchen table, in Sandy Springs, Georgia, eating boiled shrimp and drinking Nina’s sweet tea, a bowl of cocktail sauce, a copy of The Monroe Journal (dated July 25, 2002, and headlined “A.C. Lee, the perfect ‘Atticus Finch’”), and three stacks of papers between us. On one piece of paper, Papa drew a map. On another, he listed Monroevillians and their corresponding characters from To Kill a Mockingbird. The list looked like this:
Scout Finch……….Harper Lee
Jem Finch…………Edwin Lee
Dill Harris………….Truman Capote
Atticus……………..A.C. Lee
Boo Radley……….Son Boulware
Aunts……………….Faulk sisters
Mr. Ewell…………..Mr. Ezell
Tom Robinson…….(Fiction)
Maudie……………..Grandmother Mosey Neighbor
Mr. Tate, Sheriff…..Sheriff Sawyer
Calpurnia…………..Georgianna
Mr. Radley…………Mr. Boulware
Maycomb…………..Monroeville Macon County…….Monroe County
“This,” he said, indicating a sloppy square on his map, “is the courthouse, and this is the post office.” He also indicated the jail, the drug store, the elementary school; Selma Street, Montgomery Street, and Mobile Street; and some homes labeled “my home,” “Grandmother (Maudie),” “Faulk,” “Harper Lee,” “Radley, Boo,” and “Dill.”
And so it went. Papa specified who lived where, why, and for how long. He explained how Amasa Coleman Lee, Harper’s father, served as the model for Atticus and how Edwin Lee, Harper’s brother, served as the model for Jem. He also explained how the “real” Boo Radley was Son Boulware.
The narrator of To Kill a Mockingbird introduces Boo as “a malevolent phantom” whom she had never seen but whose very breath caused azaleas to freeze “in a cold snap.” She describes the Radley house as adjoining the schoolyard and declares that a “baseball hit into the Radley yard was a lost ball and no questions asked.” Papa testified to the truth underlying this legend, saying that he and his friends would play baseball in the schoolyard and occasionally hit or throw a ball into Son Boulware’s yard. They would run up to the fence to see if Son would come out of the house to get the ball. He never did. But the ball would be back in the schoolyard the next morning. Papa swore that this was how Lee got the idea for the knothole in which Boo deposited gifts for Scout and Jem.
One day, when Papa was working for a Mr. Gardner, who ran a grocery store, Papa was called on to deliver a basket of groceries to Mrs. Boulware. He had told Mr. Gardner that he’d deliver groceries to anybody but the Boulwares, but Mr. Gardner would have none of it and ordered Papa to make the delivery. Papa, who had a bike with a big basket for carrying things to and from school, collected the groceries and set out for the Boulware home.
He rode up to the Boulware’s yard—which, he said, was tidy to the point of exhibitionism—and chanced his way through the gate of the picket fence, tottering up the steps to the front porch: the very porch, perhaps, that Jem had conquered to impress Scout and Dill. For some reason, Papa decided to go around to the back door; the porch, you see, stretched the length of the house. The groceries were heavy and slipping from his hands. When he turned the corner, he saw Son, or Boo, who hopped out of the porch swing and ran inside just as quickly as Papa could drop the groceries and jolt the other way. Papa always maintained that Son was “white as a sheet” that day. He rode his bike back to the grocery store and announced to Mr. Gardner that he would never deliver another thing to that house.
Papa used to describe the particularities and peculiarities of Mr. Boulware, Son’s father, a man who never worked a steady job and who raised chickens and cultivated a beautiful vegetable garden. “He swapped chickens for groceries,” Papa explained. “He’d leave his house every day, about 11:00, walking right by grandmother’s, and I’d watch him sometimes from behind grandmother’s shades, and he’d go three places: the post office, the courthouse, and the Jitney Jungle. He’d always return by noon.”
Papa claimed that Lee modeled the character Miss Maudie on his grandmother, who would scold him and his friends when she caught them spying on the Boulwares: “Y’all leave that family alone! They’ve never done anything to you!”
Papa alleged, as well, that Lee modeled her characters on the following people:
Edwin Lee as Jem. Known simply as “Ed.” Ed went to Auburn. That he, or anyone for that matter, went to Auburn is of tremendous significance to my family: all my grandparents—save for my paternal grandmother, who never attended college—attended Auburn; both my parents attended Auburn; my uncles attended Auburn; my sister attended Auburn; and a plethora of first, second, third, fourth, and fifth cousins attended Auburn; I’m a doctoral candidate at Auburn. Nina’s family, the Glenns, have a dorm at Auburn named for them; and Glenn Street runs through the edges of Auburn’s campus.
Amasa Coleman Lee as Atticus. Harper Lee’s father. A lawyer who never actually attended law school. He handled mostly wills and estates. He raised his family as Methodists and served on the board of the church. Papa heard him speak on several occasions and characterized him as a dry speaker who rattled change in his pockets while he talked.
Georgianna as Calpurnia. In the book, Calpurnia looked after Scout and Jem, but Papa claimed that was Mrs. Lee’s job and that Harper Lee had chosen not to include Mrs. Lee in the book. Georgianna was a cook who lived in a small residence behind the Lees’ house. A.C. Lee did not drive her home after work, the way Atticus did for Calpurnia. Papa described Georgianna as a hefty woman who wore bright red lipstick and played the accordion in the afternoons. She was, apparently, an atrocious accordion player.
Mr. Ezell as Mr. Ewell. Ezell, like Ewell, was, in Papa’s words, “poor white trash.” He was an alcoholic who never worked. He and his family lived outside of town and were supported by Mrs. Ezell, who ironed, washed clothes, and undertook other odds-and-ends to make a living. Ezell’s family lived in a house that someone else abandoned, and the Ezell children started school each year but always dropped out within three weeks on account of the other children laughing at them. The Ezell children never had proper clothes. Papa claimed that their family lived in that once-abandoned house until about the year he left for college. Then they disappeared, and nobody in Monroeville, at least to Papa’s knowledge, knew where they went.
“Harper Lee used fake names to refer to real Monroeville people,” Papa insisted. “She did it, I suspect, to avoid lawsuits.” He would follow up by saying that Lee couldn’t fool those who had lived in Monroeville, who had spent their days with the actual people so easily identifiable in Lee’s fiction. Papa didn’t know what to make of the fact that Lee had omitted some of her closest friends and relatives from the book—her sisters Alice and Marie, for example. He set aside the question by saying, “I suspect she wanted to make the book seem more like fiction.”
†
When I was eight years old, I made a discovery much like the one Scout and Jem made about Atticus’s sharpshooting skills. Nina and Papa had a Siamese cat named Susie who would sneak into the attic through unknown passageways. One afternoon, she snuck away, and I went looking for her in the upstairs bedroom. I looked under the bed, behind the shower curtain, on top of the bookcase. No Susie.
Then I saw the closet door was cracked open. I pulled it all the way open and saw a long, coffin-like case on the shelf above the clothes. I pulled it down and examined it. It was about five feet long, tapering hexagonal at the tips; it had a locked, split lid. There was nothing particularly ornamental about it, so I supposed that there was no harm in opening it. Although it was locked, its lid gave way without resistance. When that happened, I gasped, horrified, and dropped the case to the floor. My heart fluttered. Inside was a shotgun. The first I’d ever seen.
I hadn’t known Papa to be a hunter or a rifleman, but when I summoned forth the courage to pick up the case and reinstate to its proper place, I saw two or three trophies, on the shelf, that were shaped like riflemen. Apparently, Papa was a good shot.
Just as I knew nothing of Papa’s marksmanship, Scout and Jem knew nothing of Atticus’s marksmanship—until, that is, old Tim Johnson, a neighbor’s dog struck mad with rabies, materialized in the street one afternoon, “walking dazedly in the inner rim of the curve parallel to the Radley house” and “advancing at a snail’s pace.” The narrator of To Kill a Mockingbird describes Tim Johnson as “dedicated to one course and motivated by an invisible force that was inching him toward us.”
Heck Tate, the sheriff of Maycomb, surrenders his gun to Atticus, insisting that Atticus take the shot at the canine (“this is a one-shot job,” Tate says). Scout and Jem watch skeptically as their father fumbles with the rifle. The reluctant Atticus—moving “like an underwater swimmer”—takes aim, pausing to adjust his glasses, which, eventually, he lets fall to the street. “With movements so swift they seemed simultaneous,” the narrator says, “Atticus’s hand yanked a ball-tipped lever as he brought the gun to his shoulder.” Then, suddenly, Atticus eliminates the dog with a single shot, leaving Jem “paralyzed” with wonder and confused as Miss Maudie refers to Atticus as “One-Shot Finch.”
“Don’t you go near that dog, you understand? Don’t go near him, he’s just as dangerous dead as alive,” Atticus tells Jem, who says, “yes, sir,” and then stammers, “Atticus?—”
To which Atticus says, “Yes?”
Jem, still stunned, says, “Nothin.’”
Minutes later, Jem remains in “numb confusion” and only “vaguely articulate.” Seeing this, Miss Maudie enlightens him by saying that Atticus was the best shot in Maycomb. When Jem protests that no one had told him this before, Miss Maudie muses aloud in words that, I believe, could have described my Papa:
If your father’s anything, he’s civilized in his heart. Marksmanship’s a gift of God, a talent—oh, you have to practice to make it perfect, but shootin’s different from playing the piano or the like. I think maybe he put his gun down when he realized that God had given him an unfair advantage over most living things. I guess he decided he wouldn’t shoot till he had to, and he had to today.
I never did see Papa shoot a gun, but Nina said that one time he had shot a squirrel off the bird feeder with a BB gun because he thought birds were disadvantaged when it came to competition with the squirrels. When he went to collect the squirrel’s body, the little thing came to, shook its head wildly as if snapping from a trance, and bounded away into the woods. Papa shelved the BB gun that day and never used it again.
†
As all grandfathers must, Papa passed on stories about his childhood, often while sitting in his reading chair with his grandkids gathered on the floor around him. “When I was a boy,” he would say, “there was no swimming pool. And there was only one movie theater, and it had only one screen. They had to change the picture every day to keep business. On Saturdays, there was a double-feature: two westerns. Admission cost five cents for children, and for another five cents, you could have some popcorn.” This was the world of Lee and Capote, too: the charming yet dangerous world that Lee illuminated for masses of readers.
With Lee’s final, tumultuous years comes the passing of a part of me that I shared with my grandfather through stories. It has been said that pleasant words are like a honeycomb, sweetness to the soul and health to the bones. I know my grandfather to have been a good and honest man, and come what may, I’ll tell his stories about Harper Lee and Truman Capote and Monroeville to my children and, perhaps one day, my grandchildren, that they, too, might tell their offspring. Good folks like Harper Lee and my grandfather can’t be kept alive forever—Papa died in May of this year—but this isn’t true for the stories they leave behind. Those live. They must, for the sake of soul and bone, and for the wisdom of our posterity.
Contributory negligence is an affirmative defense and often a mirror image of the claim of negligence against the defendant. To establish contributory negligence, a defendant generally has to meet all four elements of negligence (duty, breach, causation, damages) in the same way the plaintiff does. Until recently, contributory negligence functioned as a total bar on recovery.
In practice, however, the rule may have been less harsh because juries could decide the plaintiff wasn’t at fault if the defendant appeared to be more at fault (this is a form of jury nullification), and because courts developed ameliorative doctrines such as the “last clear chance rule,” which maintains that even though the plaintiff was contributorily negligent, the defendant had the last clear chance to avoid the injury and thus the plaintiff still recovers. Few states have retained contributory negligence as an absolute bar. Most have moved to comparative responsibility. Once states have made that move, doctrines such as the “last clear chance” become unnecessary.
Once the old contributory negligence regime has been thrown out, what fills the void? The answer, in short, is comparative responsibility. To move from contributory negligence to comparative responsibility is to reject the rule that a plaintiff is barred from recovery if he, too, was careless. Under a comparative responsibility system, the responsibility is split evenly among the parties who were at fault.
Bartels v. Iowa, 262 U.S. 404 (1923), is short and to-the-point, extending and confirming the principles released by the United States Supreme Court that very day in Meyer v. Nebraska,[i] a companion case to Bartels that is also short and to-the-point. In Meyer, the Court struck down a Nebraska law restricting the teaching of modern foreign-languages to students from kindergarten to eighth grade. The majority in Meyer found that the law violated the Due Process Clause of the Fourteenth Amendment on the grounds that it infringed upon the liberty interests of teachers, who had a right to practice their profession without the interference of the state with their curriculum so long as that curriculum did not violate explicit State policy.[ii] There was, the Court reasoned, no link between the putative purpose of the law—to protect the welfare of children—and a threat to the public interest.[iii] The law was deemed arbitrary and not reasonably related to a legitimate state interest and, therefore, unconstitutional.
Holmes reserved his Meyers dissent—which maintained that this Nebraska law was constitutional—for the Bartels opinion. In Bartels, the United States Supreme Court addressed an Iowa law similar to the Nebraska regulation and reversed a decision of the Iowa Supreme Court, which had upheld the criminal conviction of a teacher who taught German to his students. “We all agree, I take it,” Holmes began his dissent, “that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one” (Bartels 412). The pronoun “we” lacks a clear referent. Does Holmes mean “we” justices or “we” Americans? The answer is probably the latter because “we” was (and is) widely and fluidly used to signify the assembled justices on the bench.
Holmes claims that the “only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment” (Bartels 412). He submits that he will not judge the law according to whether it is good or right but only pursuant to the terms of the Fourteenth Amendment. He states, to that end, that he may “appreciate the objection to the law” (“I think I appreciate the objection to the law”) but that the role of the judge is not to take sides on moral or political issues “upon which men reasonably might differ” (Bartels 412). “I am not prepared to say that it is unreasonable,” Holmes explains, using litotes, “to provide that in his early years [a student] shall hear and speak only English at school” (Bartels 412). If it is not unreasonable, then it is reasonable, and “if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar” (Bartels 412).
Holmes’s dissent in Bartels is not known as one of his most notable or outstanding dissents. Nevertheless, it has been referenced not only by the United States Supreme Court[iv] but also by federal and state courts.[v] Although the majority opinion has never been overruled, Holmes’s dissent generally is cited favorably. My approximate calculation based on Westlaw searches is that this dissent has been cited almost 200 times in cases, administrative decisions, and federal court documents such as amicus curiae briefs.
The topic of his dissent—foreign languages in public schools—has been revisited by later courts because it remains relevant, and in that respect, it is not surprising that the dissent continues to be cited. Yet the topic alone does not explain why Holmes’s dissent in particular remains popular, especially if it is not binding precedent. There are other non-binding documents on the topic, including social science studies and law review articles, that are also relevant but that have not been cited in large numbers. Although Holmes’s reputation has something to do with the abundance of citations to his dissent, insofar as his legal opinion carries great weight among jurists, the properties of his dissent likely contribute to its ongoing appeal.
What are these properties? Besides litotes, mentioned above, there is also aphorism: “No one would doubt that a teacher might be forbidden to teach many things.” These words are carefully chosen. It would be absolutist to state that no one would doubt that a teacher is forbidden to teach many things, or to state that no one doubts rather than no one would doubt that a teacher might be forbidden to teach many things, or to state that no one would doubt that a teacher might be forbidden to teach a particular thing rather than many things. This short sentence is so well qualified that it manages to articulate a pithy generalization without succumbing to embellishment or misrepresentation. Moreover, the phrase “no one would doubt that a teacher might be” is anapestic, sharing the same feet of such memorable verses as “’Twas the night before Christmas and all through the house.”
In the opening line to a dissent about language, the deliberate use of sigmatism, or the repetition of “s” sounds for dramatic effect, is striking: “[…] is desirable that […] citizens of the United States should speak.” It is as if Holmes defamiliarizes the “common tongue” (his words) as he writes about the “time [of youth] when familiarity with a language is established.” At the very least, he highlights the nuances of language in a dissent expressed in nuanced language and addressing the very legality of language acquisition within a public institution. In addition, Holmes empowers his dissent with a religious-like seriousness by referring to his fellow justices as “brethren,” and he appears figuratively to objectify his “mind” as something separate from his “consciousness” when he claims that “I cannot bring my mind to believe.”
These moves are not merely literary grandstanding but the instantiation of an important feature of Holmes’s philosophical pragmatism: the fallibility of human intelligence. He will not profess certainty but will formulate his reasoning only in cautious qualifications.
Holmes follows, therefore, with the declaration that the objection to the prohibition on the teaching of foreign languages in Iowa “appears to me to present a question upon which men reasonably might differ” (my emphasis). His belief in the inherent limitations of human faculties prevents him from saying that the objection does present a question upon which reasonable men may differ.
Having introduced the theme of human knowledge, he turns to metonymy by referring to the state legislation as an “experiment” that the United States Supreme Court should not prevent from taking place. For aught that appears, either the term “experiment” or the state legislation may indicate the other; they are reversible concepts within the paradigm that Holmes establishes here. Treating the states as if they were laboratories, he gestures toward his conviction that the widening capacity of the aggregate knowledge of the community is made possible by allowing social experiments to take place on the most local levels, where the consequences of failure are minimized, whereas the failure of United States Supreme Court justices to rule properly regarding some law or another will have vast consequences that affect social coordination throughout the entire country. Subtle turns of phrase are enough for Holmes to implicate this grand philosophical notion to which he owes his most insightful dissents.
[i]262 U.S. 390 (1923).
[ii] “As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.” (Meyer 403)
[iii] “The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner [citation omitted] pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” (Meyer 403).
[iv] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 518-19 (1969).
[v] Examples of federal court cases referencing Holmes’s dissent include the following: Yniguez v. Arizonans for Official English, 42 F. 3d 1217, 1242 (9th Cir. App. 1994); Kramer v. New York City Bd. of Educ. 715 F. Supp. 2d 335, 342 (E.D. New York 2010); and Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-J, Aurora, Colo. 598 F. 2d 535, 540 (10th Circ. App. 1979). Examples of state court cases referencing Holmes’s dissent include State v. Hoyt. 84 N.H. 38, 146 A. 170, 171 (N.H. 1929), and Hamilton v. Deland, 198 N.W. 843, 227 Mich. 111, 113 (Mich. 1924).
Oliver Wendell Holmes Jr.’s writings are known for their literary qualities. The Class Poet at Harvard, the son of a famous poet, and a lifelong devotee of Emerson, Holmes often rendered his judicial writings in poetic prose. Consider the following lines from Gitlow v. New York, which I have reformulated as a poem:
Gitlow v. New York[i]
A Poem[ii] (1925)
Every idea
is an incitement.
It offers itself for belief
and if believed
it is acted on
unless some other belief
outweighs it
or some failure of energy
stifles the movement
at its birth.
The only difference
between the expression
of an opinion and an incitement
in the narrower sense
is the speaker’s enthusiasm
for the result.
Eloquence may set fire
to reason.
But whatever may be thought
of the redundant discourse
before us
it had no chance of starting
a present conflagration.
The plain, raw idioms and variable feet in these lines resemble those characteristically employed by Stevens and William Carlos Williams. Holmes’s language here is similar in tone and rhythm to Williams’s in “The Red Wheelbarrow,” which was published just two years before this dissent. Holmes’s alliterative use of the letter “n” emphasizes mobility, momentum, and ignition: “incitement,” “energy,” “movement,” “incitement,” “enthusiasm,” “conflagration.” These nouns suggest provocation, stimulus, instigation; they are tied to ideas themselves, as in the line “every idea is an incitement,” hence the correspondingly alliterative “n” sounds in the words “expression” and “reason.” The metrical regularity of “Every,” “offers it…,” “for belief,” “failure of,” “energy,” “stifles the,” “at its birth,” “difference,” “narrower,” “Eloquence,” and “had no chance” accents the activity associated with thinking insofar as these dactylic words and phrases pertain to ideas or beliefs. Holmes follows a series of dactyls with spondaic feet just as he describes the possibility of combustion: “Eloquence [stress / slack / slack] may set fire [stress / stress / stress / slack] to reason [stress / stress / slack].” It is as though he wishes to create the sense of building pressure and then of sudden release or combustion. Two unstressed lines abruptly interrupt the heightened tension; the first appears with the transitional conjunction “But,” which signals a change in the tone. Holmes appears to reverse the intensity and calm his diction as he assures us that the “redundant discourse,” a phrase made cacophonous by the alliterative “d” and “s” sounds, has “no chance of starting a present conflagration.” A sudden move to iambic feet and hence to a lightened tone rounds out these lines and suggests that Holmes has smothered or extinguished whatever energy had been building with the three-syllable feet. These lines have become some of the most famous in American constitutional history most likely because of their memorable qualities, which contributed to the eventual vindication of the dissent.
Be that as it may, feet and meter are basic to English speech and writing and may be displayed in many other legal writings by less able judges and justices. It would be difficult to prove that Holmes deliberately set out to invest these lines with literary features, at least those pertaining to alliteration and feet. Holmes no doubt had an ear for language and probably intended to employ alliteration, rhythm, and rhyme in his writings, but how far does his intent extend? Does the scanning exercise above give Holmes too much credit and attribute to his writings undeserved praise? There is no empirical way to answer this question, but the speculation is, I think, worth the time.
[i] Gitlow v. N.Y., 268 U.S. 652 (1925).
[ii] My addition.
The Literary Lawyer: A Forum for the Legal and Literary Communities 