Wednesday, February 07, 2007


My feet hurt.

Yesterday in class, Barnett went off about how Justice Holmes is his least favorite justice. It's hard to quarrel with that ranking. Holmes could turn a wonderful phrase--sadly, just never at an appropriate time. For legal standards we get vague metaphors.

But that's secondary. He's a moral relativist, or nihilist or something, which I suspect is defensible, if wrong. But Holmes isn't even a very good moral relativist. And even if he tempers it by refusing to judge morality and simply letting the majority do whatever it wants, he can't even stick with that principle, the jerk.

Note the alarming cynicism in so many dissents, and then, all the sudden you'll get him defending the 1st Amendment, or the rights of man, or some such. It's one thing to admit it's hard to draw lines--it's another to deny that such lines exist and then act as it they do (without acknowledgment of the inconsistency). Compare his majority in Schenk to his Abrams dissent.

Mustachioed jackass.


Paleobiology said...

Here I disagree with you, strongly; the problem is the scale of analysis.

Holmes may be a moral relativist at the community/governmental level, but not at the individual level. That is, individuals may hold absolute beliefs, but those are not necessarily the Truth in the aggregate. The way Holmes and other pragmatists/pragmaticists (there is a controversy about the term) justified their belief in some community absolutes like freedom of speech or the rights of man is that in order to properly evaluate beliefs, SOME absolutes have to hold. Freedom of speech is necessary so that good new ideas can displace bad old ones, even his own.

The only absolutes that Holmes adhered to in his judicial pronouncements were ones that he felt insured that the country/economy/marketplace of ideas would be able to evaluate all ideas in general. Pragmatism says the only absolute is change; the proper biological analogy a taxon (species, genus, whatever) that is able to change quickly (e.g. domestic cats) v. one that has little genetic diversity (e.g. cheetahs). Holmes wanted the U.S. to have the greatest "genetic diversity" of ideas, and to ensure that the bad ones could be weeded out.

Scott said...

But he explicitly did not hold SOME absolutes, which is why I mention Schenk, where he outright denied First Amendment protection to Socialist pamphleteers. Or see Debs, when he again denies protection.

Now note Reynolds, where Holmes outlaws a state statute requiring hard labor for contractual breach, under an expansive view of the 13th's prohibition of slavery. Where does this fit into the one basic absolute of free ideas? It does not. In fact, Holmes should have fully supported the statute--it is clearly one that a reasonable individual could have thought good policy, which would pass his test in Lochner.

Hence my point, he was not even a good moral relativist.

I'll take it you're being hyperbolic when you say pragmatism says the only absolute is change, since if there are no other absolutes to be found, it's not clear what we should be searching for, and why it's advantageous to have pragmatism as a means of doing so. Searching for truth presumes truths being out there, no?

Brandon Berg said...

And because Alabama couldn't find anyone to do its hard labor after Reynolds, it's now one of the poorest countries in the state. Way to go, Holmes.

Wild Pegasus said...

I totally freaked when I saw the post title.

- Josh

Scott said...

C'mon, Josh, you know you and Sherlock are the only Holmes' I can abide.