Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year gave him a chance to express his jurisprudence to a wide audience. This marked a turning point in his career. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court.
The trauma of the Civil War affected his thinking and would eventually impact his jurisprudence. Leading up to the War, he had been an Emersonian idealist who associated with such abolitionists as Wendell Phillips. As a student at Harvard, he had served as Phillips’s bodyguard. He later enlisted in the infantry before joining the Twentieth Massachusetts, a regiment that lost five eighths of its men. He was wounded at the Battle of Ball’s Bluff in October of 1861, when he took a bullet to his chest; the bullet passed through his body without touching his heart or lungs. In September of 1862, he was wounded at the Battle of Antietam, a bullet having passed through his neck. In May of 1863, at Marye’s Hill, close to where the battle of Fredericksburg had taken place six months earlier, Holmes was shot and wounded a third time. This time the bullet struck him in the heel, splintered his bone, and tore his ligaments; his doctors were convinced that he would lose his leg. He did not, but he limped for the rest of his life.
He emerged from the War a different man. He was colder now, and more soberminded. “Holmes believed,” Louis Menand says, “that it was no longer possible to think the way he had as a young man before the war, that the world was more resistant than he had imagined. But he did not forget what it felt like to be a young man before the war.” And he learned that forms of resistance were necessary and natural in the constant struggle of humans to organize their societies and to discover what practices and activities ought to govern their conduct. The War, accordingly, made him both wiser and more disillusioned. In light of his disillusionment, he reflected the general attitudes of many men his age.
But not all men his age shared his penetrating intellect or his exhilarating facility with words; nor did they have his wartime experience, for most men who experienced what he had during the war did not live to tell about it. Certainly no one besides Holmes could claim to have enjoyed such intimate and privileged access to the Brahmin, Emersonian culture of New England before the War, and he more than anyone was equipped to see the continued relevance of that culture to the present. He knew there were things the War could not destroy and varieties of thought that could endure.
The above text is an excerpt from my essay “Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.’s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey,” published in The South Carolina Review, Vol. 48, No. 1 (2015). To view the full essay, you may download it here at SSRN or visit the website of The South Carolina Review.