Was Justice Oliver Wendell Holmes a "Liberal"?: Thoughts by H. L. Mencken, 1930.

Was Justice Oliver Wendell Holmes a "Liberal"?: Thoughts by H. L. Mencken, 1930.
H. L. Mencken

H. L. Mencken (Sept. 12, 1880--Jan. 29, 1956) was an American journalist from Maryland. His work is characterized by sharp criticism and satirical observations about government, cultural institutions, and powerful people. He was witty, iconoclastic at times, and a master of the English language. His works are always an interesting read.

In this selection, Mencken opines about the political philosophy of Justice Oliver Wendell Holmes vis-à-vis “praise from Liberals.” In certain opinions, the "Liberals" found what they believed was Holmes' support for personal liberty. Mencken, consequently, characterized these “Liberals” as championing Holmes as one of their own; however, he demurred from this depiction. Mencken held, on the contrary, that the bulk of Holmes’s opinions show that “he was actually no more than an advocate for the law-makers.” Mencken continued:

He believed that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly passed the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including, apparently, even the Bill of Rights. If this is Liberalism, then all I can say is that Liberalism is not what it was when I was young.

By “Liberalism,” Mencken meant 19th century liberalism, which generally supported free markets, free trade, a maximum amount of individual liberty, and the power of the Bill of Rights to protect citizens from the government.

It was within this context that Mencken wrote what has been extracted for this post.

August Glen-James, editor

The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people.

In those remote days, sucking wisdom from the primeval springs, I was taught that the very aim of the Constitution was to keep law-makers from running amok, and that it was the highest duty of the Supreme Court, following Marbury vs. Madison, to safeguard it against their forays. It was not sufficient, so my instructors maintained, for Congress or a State Legislature to give assurance that its intentions were noble; noble or not, it had to keep squarely within the limits of the Bill of Rights, and the moment it went beyond them its most virtuous acts were null and void. But Mr. Justice Holmes apparently thought otherwise. He held, it would seem, that violating the Bill of Rights is a rare and difficult business, possible only by summoning up deliberate malice, and that it is the chief business of the Supreme Court to keep the Constitution loose and elastic, so that blasting holes through it may not be too onerous. Bear this doctrine in mind, and you will have an adequate explanation, on the one hand, of those forward-looking opinions which console the Liberals—for example, the Lochner vs. New York (the bakery case), in the child labor case, and in the Virginia case involving the compulsory sterilization of imbeciles—and on the other hand, of the reactionary opinions which they so politely overlook—for example, in the Debs case, in Bartels vs. Iowa (a war-time case, involving the prohibition of foreign-language teaching), in the Mann Act case (in which Dr. Holmes concurred with the majority of the court, and thereby helped pave the way for the wholesale blackmail which Mr. Justice McKenna, who dissented, warned against), and finally in the long line of Volstead Act cases.

Like any other man, of course, a judge sometimes permits himself the luxury of inconsistency. Mr. Justice Holmes, it seems to me, did so in the wiretapping case and again in the Abrams case, in which his dissenting opinion was clearly at variance with the prevailing opinion in the Debs case, written by him. But I think it is quite fair to say that his fundamental attitude was precisely as I have stated it. Over and over again, in these opinions, he advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities. If what he said in some of those opinions were accepted literally there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.

The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle—a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.

It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury vs. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law. But in late years the court has taken the opposite line, and public opinion seems to support it. Certainly Dr. Holmes did not go as far in that direction as some of his brother judges, but equally certainly he went far enough. To call him a Liberal is to make the word meaningless.