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Review of Stephen Budiansky’s “Oliver Wendell Holmes Jr.”

In Academia, America, American History, American Literature, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Jurisprudence, Law, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, Western Philosophy on September 25, 2019 at 6:45 am

This review originally appeared here in Los Angeles Review of Books.

Do we need another biography of Oliver Wendell Holmes Jr., who served nearly 30 years as an Associate Justice of the United States Supreme Court and nearly 20 years before that on the Massachusetts Supreme Judicial Court? He has been the subject of numerous biographies since his death in 1935. We have not discovered new details about him since Harvard made his papers available to researchers in 1985, so why has Stephen Budiansky chosen to tell his story?

The answer may have to do with something Holmes said in The Common Law, his only book: “If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.”

Indeed, they are — both in the law and in the transmission of history. Holmes has been so singularly misunderstood by jurists and scholars that his life and thought require scrutiny and revision. Because his story is bound up with judicial methods and tenets — his opinions still cited regularly, by no less than the US Supreme Court as recently as this past term — we need to get him right, or at least “righter,” lest we fall into error, sending the path of the law in the wrong direction.

A veritable cottage industry of anti-Holmes invective has arisen on both the left and the right side of the political spectrum. No one, it seems, of any political persuasion, wants to adopt Holmes. He’s a giant of the law with no champions or defenders.

For some critics, Holmes is the paragon of states’ rights and judicial restraint who upheld local laws authorizing the disenfranchisement of blacks (Giles v. Harris, 1903) and the compulsory sterilization of individuals whom the state deemed unfit (Buck v. Bell, 1927). This latter decision he announced with horrifying enthusiasm: “Three generations of imbeciles are enough.” For other critics, he’s the prototypical progressive, decrying natural law, deferring to legislation that regulated economic activity, embracing an evolutionary view of law akin to living constitutionalism, and bequeathing most of his estate to the federal government.

The truth, as always, is more complicated than tendentious caricatures. Budiansky follows Frederic R. Kellogg — whose Oliver Wendell Holmes Jr. and Legal Logic appeared last year — in reconsidering this irreducible man who came to be known as the Yankee from Olympus.

Not since Mark DeWolfe Howe’s two-volume (but unfinished) biography, The Proving Years and The Shaping Years, has any author so ably rendered Holmes’s wartime service. Budiansky devotes considerable attention to this period perhaps because it fundamentally changed Holmes. Before the war, Holmes, an admirer of Ralph Waldo Emerson, gravitated toward abolitionism and volunteered to serve as a bodyguard for Wendell Phillips. He was appalled by a minstrel show he witnessed as a student. During the war, however, he “grew disdainful of the high-minded talk of people at home who did not grasp that any good the war might still accomplish was being threatened by the evil it had itself become.”

Holmes had “daddy issues” — who wouldn’t with a father like Oliver Wendell Holmes Sr., the diminutive, gregarious, vainglorious, and sometimes obnoxious celebrity, physician, and author of the popular “Breakfast Table” series in The Atlantic Monthly? — that were exacerbated by the elder Holmes’s sanctimonious grandstanding about his noble, valiant son. For the aloof father, the son’s military service was a status marker. For the son, war was gruesome, fearsome, and real. The son despised the father’s flighty ignorance of the on-the-ground realities of bloody conflict.

Holmes fought alongside Copperheads as well, a fact that might have contributed to his skepticism about the motives of the war and the patriotic fervor in Boston. His friend and courageous comrade Henry Abbott — no fan of Lincoln — died at the Battle of the Wilderness in a manner that Budianksy calls “suicidal” rather than bold. The war and its carnage raised Holmes’s doubts regarding “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”

This distrust — this cynicism about the human ability to know anything with absolute certainty — led Holmes as a judge to favor decentralization. He did not presume to understand from afar which rules and practices optimally regulated distant communities. Whatever legislation they enacted was for him presumptively valid, and he would not impose his preferences on their government. His disdain for his father’s moralizing, moreover, may have contributed to his formulation of the “bad man” theory of the law. “If you want to know the law and nothing else,” he wrote, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Budiansky’s treatment of Holmes’s experience as a trial judge — the Justices on the Massachusetts Supreme Judicial Court in those days presided over trials of first instance — is distinctive among the biographies. Budisansky avers,

[I]n his role as a trial justice, Holmes was on the sharp edge of the law, seeing and hearing firsthand all of the tangled dramas of the courtroom, sizing up the honesty of often conflicting witnesses, rendering decisions that had immediate and dramatic consequences — the breakup of families, financial ruin, even death — to the people standing right before him.

Holmes’s opinions as a US Supreme Court Justice have received much attention, but more interesting — perhaps because less known — are the salacious divorce cases and shocking murder trials he handled with acute sensitivity to evidence and testimony.

Budiansky skillfully summarizes Holmes’s almost 30-year tenure on the US Supreme Court, the era for which he is best known. He highlights Holmes’s dissenting opinions and his friendship with Justice Louis Brandeis, who was also willing to dissent from majority opinions — and with flair. For those looking for more detailed narratives about opinions Holmes authored as a Supreme Court Justice, other resources are available. Thomas Healy’s The Great Dissent, for example, dives more deeply into Holmes’s shifting positions on freedom of speech. Healy spends a whole book describing this jurisprudential development that Budiansky clears in one chapter.

Contemptuous of academics, Budiansky irrelevantly claims that “humorless moralizing is the predominant mode of thought in much of academia today.” He adds, “A more enduring fact about academic life is that taking on the great is the most reliable way for those who will never attain greatness themselves to gain attention for themselves.” Harsh words! Budianksy accuses the French historian Jules Michelet of rambling “on for pages, as only a French intellectual can.” Is this playful wit or spiteful animus? Is it even necessary?

Budiansky might have avoided occasional lapses had he consulted the academics he seems to despise. For instance, he asserts that the “common law in America traces its origins to the Middle Ages in England […] following the Norman invasion in 1066,” and that the “Normans brought with them a body of customary law that, under Henry II, was extended across England by judges of the King’s Bench who traveled on circuit to hold court.” This isn’t so. Writing in The Genius of the Common Law, Sir Frederick Pollock — “an English jurist,” in Budiansky’s words, “whose friendship with Holmes spanned sixty years” — mapped the roots of the common law “as far back as the customs of the Germanic tribes who confronted the Roman legions when Britain was still a Roman province and Celtic.” In other words, Budiansky is approximately one thousand years off. Rather than supplanting British customs, the Normans instituted new practices that complemented, absorbed, and blended with British customs.

The fact that Budiansky never mentions some of the most interesting researchers working on Holmes — Susan Haack, Seth Vannatta, and Catharine Wells come to mind — suggests willful ignorance, the deliberate avoidance of the latest scholarship. But to what end? For what reason?

It takes years of study to truly understand Holmes. The epigraph to Vannatta’s new edition, The Pragmatism and Prejudice of Oliver Wendell Holmes Jr., aptly encapsulates the complexity of Holmes’s thought with lines from Whitman’s Song of Myself: “Do I contradict myself? / Very well then I contradict myself, / (I am large, I contain multitudes.)” Budiansky recognizes, as others haven’t, that Holmes was large and contained multitudes. Holmes’s contradictions, if they are contradictions, might be explained by the famous dictum of his childhood hero, Emerson: “A foolish consistency is the hobgoblin of little minds.”

Holmes was consistently inconsistent. His mind was expansive, his reading habits extraordinary. How to categorize such a wide-ranging man? What were the defining features of his belief? Or did he, as Louis Menand has alleged, “lose his belief in beliefs”? Budiansky condenses Holmes’s philosophy into this helpful principle: “[T]hat none of us has all the answers; that perfection will never be found in the law as it is not to be found in life; but that its pursuit is still worth the effort, if only for the sake of giving our lives meaning.”

Holmes was intellectually humble, warning us against the complacency that attends certainty. Driving his methods was the sober awareness that he, or anyone for that matter, might be incorrect about some deep-seated conviction. During this time of polarized politics, self-righteous indignation, widespread incivility, and rancorous public discourse, we could learn from Holmes. How civil and respectful we could be if we all recognized that our cherished ideas and working paradigms might, at some level, be erroneous, if we were constantly mindful of our inevitable limitations, if we were searchers and seekers who refuse to accept, with utter finality, that we’ve figured it all out?

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Alabama’s Constitution(s)

In Law, Southern History, The South on September 18, 2019 at 6:45 am

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The United States is Not a Nation

In America, American History, American Literature, Conservatism, Historicism, History, Humanities, Liberalism, Libertarianism, Philosophy, Politics, The South on September 11, 2019 at 6:45 am

The original version of this piece appeared here in Mises Wire. 

In July, prominent names in the conservative movement gathered in Washington, DC, for a conference on “National Conservatism.” Speakers included such luminaries as Tucker Carlson, Peter Thiel, J.D. Vance, John Bolton, Michael Anton, Rich Lowry, Yuval Levin, and Josh Hawley. Representing the academy were F.H. Buckley, Charles Kesler, Amy Wax, and Patrick Deneen. Other conservative writers and thinkers participated in panels. The two figures most associated with national conservatism — Yoram Hazony and R.R. Reno — spoke during the opening plenary.

What is this national conservatism all about?

The succinct answer is the marriage of nationalism to conservatism. The conference organizers definednationalism as “a commitment to a world of independent nations.” They presented national conservatism as “an intellectually serious alternative to the excesses of purist libertarianism, and in stark opposition to theories grounded in race.” Their stated aim was “to solidify and energize national conservatives, offering them a much-needed institutional base, substantial ideas in the areas of public policy, political theory, and economics, and an extensive support network across the country.”

Sounds interesting. However, neither national conservatism nor nationalism — whatever the distinctions between them — can take hold in the United States.

The Difference Between a Country and a Nation

Why? Because the United States is not, and has never been, a nation. The founding generation referred to the United States as a plural noun (i.e., “these United States”) because several sovereigns fell under that designation. St. George Tucker called the United States a “federal compact” consisting of “several sovereign and independent states.” If his view seems unrecognizable today, it is because nationalism within the United States is dying or dead—and the United States killed it.

The United States of America in the singular is a country, not a nation. It contains nations within it, but does not itself constitute a nation. Nations involve solidarity among people who share a common culture, language, customs, mores, ethnicity, and history. A country, by contrast, involves political arrangements and governmental territories and boundaries.

From its inception, the United States has been characterized by faction and sectionalism, cultural clashes, and competing narratives — between Indian tribes in what is now Florida and California, Wyoming and Maine, Georgia and Michigan; between the British and French and Spanish and Dutch; between Protestants and Catholics and English Dissenters and nonconformists and splintering denominations; between the Calvinism of Cotton Mather and the Enlightenment rationalism that influenced Franklin and Jefferson. The United States has experienced, as well, numerous separatist movements, including, most notably, the secession of the states that made up the Confederate States of America.

The United States is not a nation.

A nation consists of a homogeneous culture of which its like-minded inhabitants are acutely aware. By contrast, the United States of America is, and has always been, culturally heterogeneous, consisting of a variety of cultures and traditions.

While the Puritans of New England developed witch anxieties, a planter gentry established itself in Virginia. While slavery spread through the South, American Quakers — banished from the Massachusetts Bay Colony — preached abolition and pacifism in Rhode Island and Pennsylvania. Meanwhile, industry sprung up in Philadelphia and Boston. Around 60,000 loyalists left the United States at the close of the American Revolution.1 In many respects, the American Revolution was the civil war before the Civil War.

While William Gilmore Simms authored novels and disquisitions regarding Southern themes and settings, grappling with the meaning of the emergent frontier in the West, New England was characterized by Romanticism and transcendentalism, by authors like Emerson, Thoreau, Longfellow, Melville, and Hawthorne. While Walt Whitman was singing America in all its multiplicities, María Ruiz de Burton was penning fiction that reflected her Mexican background and perspective. Decades later, Langston Hughes would write that he, too, sang America.

What of the Samoans in Hawaii, the Cuban refugees in Florida, the descendants of black slaves from Africa and the Caribbean, the Issei and Nesi and Sansei, the Creole in New Orleans, the Orthodox Jewish communities, the Gullah in the coastal plains and Carolina Low country, the Athabaskans of Alaska, the Amish, the Puerto Ricans, the immigrants from Columbia and Peru and Guatemala and Honduras and Panama and Nicaragua? Do they have a common heritage?

Americans United by Ideology, Not Nationhood

The notion of conservative nationalists that libertarianism has dominated the Republican Party is odd in light of that party’s marginalization of Ron Paul, the foreign wars orchestrated by Republicans, and the steady growth of the federal government under Republican leadership. Conservative nationalists project a caricature of libertarians that, back in 1979, Murray Rothbard thoroughly refuted (audio here, text here ). The libertarianism of Rothbard is compatible with nationalism, and might even be a necessary condition for nationalism. Conservative nationalists, moreover, seek to tie their program to Russell Kirk, who, in fact, warned against “the excesses of fanatical nationalism.”

Conservative nationalism is misguided, predicated on a fallacy, namely that the United States is a nation.

But the United States is not a nation.

If the people of the United States are united at all, it is by a system of government, the Constitution, republicanism, and the concepts of liberty, checks and balances, separation of powers, and rule of law. In other words, the United States is a country whose people are connected, if at all, by liberalism. The history of the United States has been the obliteration of nationalism, not the embrace of it.

National Conservatives Are Celebrating Bigness and Homogeneity Rather than True Nationhood

Given the emphasis on sovereignty, self-governance, and self-determination that characterize nationalist movements and rhetoric, you would expect among national conservatives searing arguments for secession, perhaps for an independent Southern nation, the breaking up of California, or the independence of Texas or Vermont. Instead, the national conservatives celebrate bigness and greatness, thereby undercutting group associations and native identities based on shared cultures, customs, practices, languages, religious beliefs, and history — phenomena which exist in distinct local communities throughout the United States.

The United States of America — the country in the singular — is too big, the scope and scale of its government too large, to be the object of true nationalism. The people of the United States are not united by a common descent, ethnic solidarity, or uniform values. The United States is not a “nation of immigrants,” “one nation under God,” “the first new nation,” or an “exceptional nation.” It’s not even a nation. National conservatives overlook or ignore that reality to their peril. The national conservatism they envision for the United States can lead only to the suppression of actual nationalism.

The United States is not a nation. Trying to make it so will stamp out any remaining nationalism in the United States.

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Teaching Humbly and Without Malice

In America, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Politics, Western Philosophy on September 4, 2019 at 6:45 am

The original version of this piece appeared here at Law & Liberty.

Russell Kirk has been dead now for over a quarter of a century, yet he remains the subject of student conferences across the United States and of the recent bestselling biography by Bradley J. Birzer. And, wonder of wonders, he’s out with a new book.

Actually, it’s a new edition of a 1957 book. Russell Kirk’s Concise Guide to Conservatism in fact was originally called The Intelligent Woman’s Guide to Conservatism—a swipe at George Bernard Shaw’s Intelligent Woman’s Guide to Socialism and Capitalism (1928). This invigorating primer on the history and characteristics of American conservatism is of course suitable for female and male audiences alike, hence Regnery’s revision of its title.

In 12 brisk chapters, Kirk addresses the following themes: the essence of conservatism, religious faith, conscience, individuality, family, community, just government, private property, power, education, permanence, and change. He concludes with the question: “What is the Republic?” His answer: “a commonwealth in which as many things as possible are left to private and local management; and in which the state, far from obliterating classes and voluntary associations and private rights, shelters and respects all these.”

Anyone familiar with Kirk will recognize in the opening chapter the “chief principles” of conservatism that in The Portable Conservative Reader (1982) and The Conservative Mind (1953) he condenses into six “canons.” These involve a recognition of moral laws derived from God, a celebration of variety and diversity over coerced uniformity, the pursuit of justice, the protection of private property, a skepticism of power and centralization, a reverence for custom and tradition, and the rejection of utopianism or political programs predicated on a belief in the perfectibility of man.

Combining a Disposition to Preserve with the Ability to Reform

At a time when conservatism stands in need of definition and direction, this book remains strikingly relevant. “We need to undertake,” Kirk admonishes his readers, “the conservative task of restoring in our generation an understanding of that freedom and that order which have expressed and encouraged our national genius.” Decades have passed since he penned these lines, yet the task remains.

Freedom and order aren’t the only seemingly incompatible concepts that Kirk reconciles. He balances liberty with duty and charity, and clarifies how conservatives can be both individualistic and communitarian at once. He explains why conservatives may embrace permanence and change without contradiction: Progress—“genuine progress”—develops “within the framework of tradition.” Moreover, “grand principles endure” while “their application . . . alters.” A conservative thus “combines a disposition to preserve with an ability to reform.”

Kirk targets, as well, the canard that conservatism is the greedy defense of capitalism, that the man or woman espousing conservative views is “a monster of selfishness” who is “morally impure, ruthless, and avaricious.” This caricature is still with us, though few thinking people would accept it as true anymore. After all, the Left dominates corporate America, Silicon Valley, Big Tech, Hollywood, higher education, and the mass media—with certain obvious exceptions. Commonsense conservatism, by contrast, flourishes in rural, agrarian America, in the heartland, in Southern states, in flyover territory, among blue-collar workers—not among the wealthy elites or rich CEOs. The idea that a small group of Randian, egomaniac “fat cats” controls American society is simply ridiculous. Were he alive today, Kirk wouldn’t have needed to refute such silly stereotypes.

He warns that “very powerful forces are at work to diminish the influence of the family among us, and even to destroy the family for all purposes except mere generation.” If he only knew. His treatment of the family seems dated by current standards—not because he embraced old-fashioned views but because the threats to the family that he predicted turned out to be greater than he could have imagined. He could not, for instance, foresee the redefinition of marriage that occurred through judicial opinions.

What, according to Kirk, is the purpose of formal education? Is it to equip students with the skills they need to excel in the workforce? To ensure that a democratic citizenry is sufficiently informed to refine and improve governing institutions? To bring about opportunities for historically marginalized or disenfranchised peoples? No. “The purpose of education,” he says, “is to develop the mental and moral faculties of the individual person, for the person’s own sake.” One doesn’t need to attend a university or earn a degree to fulfill this goal.

He Teaches Humbly and Without Malice

In our era of shouting pundits and social media sniping, Kirk’s mild manner, Victorian prose, and relaxed tone are charming reminders that, even when the stakes are high, we can be civil and reasonable toward detractors. He eviscerates sacred cows—for example, the notion of equality that, if instantiated, would lead to a “boring” world “in which everyone was the same”—cleverly yet with goodwill. The most egalitarian among us would entertain his controversial argument about equality because he does not provoke, incite, or inflame the passions. He teaches humbly and without malice.

Equality and diversity—ideals commonly associated with the Left—are, Kirk reminds us, incompatible to the extent that equality requires an eradication of the beautiful and remarkable distinctions that make each human being unique. The conservative is the true advocate of diversity, he points out, for it is the conservative who “desires to see the rich, invigorating, interesting variety of a society,” not to “pull everyone down to a dead level of equality.” Our equality before God and the law admits of natural and inevitable inequalities between people. Any other form of equality is the enemy of diversity.

If you believe the chief end of inquiry is to cultivate “human dignity, human personality, and human happiness,” and to understand and appreciate “the relationship between God and man,” then you’re a Kirkian conservative. All the weight of history, the entire strength of civilized society, depends on these for the preservation of freedom and order, which complement rather than oppose each other. In them, with God’s grace and providence, we put our hope for the future.