The Principles of Oliver Wendell Holmes 8

The trouble is that by those standards, every expression is potentially harmful; it is, as Holmes said, only a question of degree. “Every idea is an incitement,” as he admitted in the dissent in Git- low. “It offers itself for belief and if believed 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 en¬thusiasm for the result. Eloquence may set fire to reason.” It is almost the language of an enemy of free speech, for it makes it clear that when we ask a court to weigh the probable effect of the speech in question by experience, we are taking a chance that mere offensiveness will be excuse enough to find liability, which is just what Hand feared. But Holmes thought that dominant opinion would contrive a way to suppress what it regarded as evil no matter what the legal foundation. And he liked the idea of risk. And, of course, he was not an enemy of free speech. His opinion in Schenck and his dissents in Abrams and Gitlow were fundamental to the establish¬ment of First Amendment law. Holmes was able to write those opinions, though, not because he was suddenly convinced of the inalienability of the right to freedom of expression, but because he saw in those cases a corollary to his principled aversion to faith in principles. He managed to articulate a rationale that had the effect of making free speech a basic right without ever invoking the idea of natural law.
His most celebrated opinion is probably the dissent in Abrams. He argued there that the speech being punished under the Espionage Act (up to twenty-year sentences to Bolshevik sympathizers for throwing pamphlets from a building in Manhattan) could not plausibly be claimed, under the circumstances, to constitute an im-minent danger to the war effort. The defendants, he thought, were being punished simply for holding views offensive to the majority. The danger represented by their prosecution was analogous to the danger he had identified in Lochner: the danger of mistaking a general sentiment for a truth. It read into the way we happen to live a certainty about the way people ought to live. It was, in a word, un- bettabilitarian. Even the Constitution, Holmes said, is a bet we may lose. “It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.” It is the motto of a man who thought that there is no final word, only another way of putting it.

Holmes’s disinterestedness has its unappealing side. He (like many turn-of-the-century progressives) was a believer in eugenics—a belief that underwrites his most notorious decision, the majority opin¬ion (there was only one dissent) in Buck v. Bell (1927) upholding the constitutionality of a Virginia law permitting involuntary steriliza¬tion of the “feebleminded.” “I felt I was getting near to the first prin¬ciple of real reform,” he told Laski after writing the opinion. The immediate basis for Holmes’s enthusiasm was the work of Thomas Malthus, which he read with what was, for him, an unusual degree of assent. But the belief had its roots in his experience in the Civil War, where he had been wounded three times, and where he believed that he had seen human nature in its elemental state: a war of pure aggression, in which one group of people made its view prevail by murdering those who disagreed. (This belief is why Edmund Wilson, who held exactly the same opinion, made Holmes the hero of Patriotic Gore, his book on the literature of the Civil War.) He never stopped regarding naked force—the will to power, to give it a nineteenth-century name—as the brute actuality at the bottom of all human transactions. “Every society rests on the death of men,” he liked to say. He thus could not see why if society, in order to make its view prevail, could call on its best citizens to sacrifice their lives (as the North had done in the Civil War), it could not also “call upon those who already sap the strength of the State”—in this case, the woman sterilized under the Virginia law, Carrie Buck—to suffer “lesser sacrifices,” such as sterilization.
The legal error seems plain today: Carrie Buck’s involuntary sterilization violates an individual right of privacy which we have generally agreed to recognize, and which expresses the same respect for other people that informs our understanding of the principle of free speech. But Holmes did not think of the principle of free speech as an acknowledgment of the rights of individuals, and the notion of a right to privacy had barely been articulated—it was certainly no part of constitutional law—when he wrote his opinion in Buck v. Bell. The philosophical error in Holmes’s decision is easy to see, though. It arises from the belief that the way of the universe must necessarily be the way of the human world—the idea that what people do, once all the mystification and self-deception have been stripped away, is only a fancy version of what amoebas do. This is the classic reductive philosophy of the late-Victorian secular mind, which is, of course, the kind of mind Holmes had. It replaces the believer’s supernatural picture of the universe with a materialist picture that is, in its own way, equally fantastic.
Few people maintain such a view without cheating on it a little in order to go about the ordinary business of life; but Holmes made it a point never to cheat, and he erected his fidelity into an ideal of conduct and of thought. He felt strongly, for instance, that his old companion William James’s sympathetic interest in religious experience had prevented him from facing up to the way things are. “His wishes led him to turn down the lights so as to give miracle a chance,” he complained to a friend in 1910, the year of James’s death.
The austerity of this vision helps to explain the impression of dazzling superficiality which Holmes’s writing, almost always magnificently lucid and aphoristic, leaves us with. He read, all his life and in every field: he read Das Kapital; he read Casanova’s memoirs (twice); he read The Sun Also Rises. He approached each new book with the same persistent curiosity, and even when he was disappointed or bored (as he was when, late in life, he reread Hegel), he finished almost everything he started. (Lady Chatterley’s Lover was, he claimed, a rare exception.) His correspondence is filled with his remarkably acute reactions to what he read, and one experiences the same perfect openness of mind in the uncluttered prose and intellectual tolerance of his most celebrated judicial opinions.
But it all amounted, for Holmes, to an endless, fascinating, beautifully empty diversion, since at the bottom of every passionate belief and noble expression he saw the same armies of the night, fighting the same eternal war. There are, one comes to feel, only two spheres in Holmes’s thought: the glittering toy store of art and ideas, and the darkling plain of Fredericksburg and Antietam. Most of us spend our lives in a middle world, in which beliefs matter to us for reasons better than the fact that they happen to be ours. This is the world that William and Henry James tried to write about. Holmes lived in that world, too, of course, and he must, each day, have felt its reality urgently enough. But it seems for him to have been largely inarticulable. The inner life was one of the few things about which Holmes had nothing to say.

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