In order for constitutional democracy to endure, Americans must be tough, must be manly — and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War.
Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.Dang states
Practically a convention of legal scholarship, Oliver Wendell Holmes, Jr. has been praised as America’s greatest judge. There are several reasons for the honorific but chief among them is the acclaim which Holmes has received as the person who did more than anyone else to breathe life into the Constitution’s venerable right of speech. Ahead of his time by decades, Holmes had penned dissenting opinions which would powerfully influence future generations of jurists and lawyers. It is indeed de rigueur among professors of constitutional law and federal judges to suggest that the scope of the First Amendment owes its conspicuous expansion over the last 60 or so years to Holmes’s judicial dissents, then mostly unpopular, in the early 20th century.
Holmes’s dissents were not only noteworthy for their influence but also for the elegant suggestiveness of their rhetoric. So suggestive was it that scholars have been tempted to speculate that Holmes’s judicial outlook was actually animated by some formal political theory. Observers have ascribed to Holmes the status of a Social Darwinist, an unembarrassed advocate for the axiom that might makes right; others have insisted that he was a liberal progressive with an abiding sympathy for political underdogs.
Neither perspective, I will show, is persuasive. Notwithstanding his own stature as a political figure, Holmes, in his later years, came to possess an aristocratic indifference to political doctrine, and, as a judge, he preferred a scholar’s attitude of disengaged observation. The origins of Holmes’s judicial worldview were rooted essentially in the stuff of personal experience. To forward this thesis is not novel; other scholars have done so. Yet these scholars have tended to focus on how Holmes was influenced in his sixties by an energetic circle of critics and young intellectual friends who had goaded him to protect the voices of the most loathsome members of society. In contrast, I will argue that Holmes’s judicial views on the First Amendment were principally influenced by his obsession with manliness and, in particular, its foremost virtue of physical courage. It was an obsession that was essentially unreconstructed, one that would find its highest gratification in his experience as a combat soldier in the Civil War.
It should be said at the outset, though, that this Article is more than an exploration into Holmes’s mentality, something that will be of interest to Holmes scholars but might be of only passing interest to others. The Article has more universal aims: It seeks to show how Holmes’s justification for the right of speech was in fact a bid to proffer a philosophical commentary about the demands of democracy. In essence, Holmes folded into his judicial dissent a lesson about civic responsibility. Drawing from his experiences as a soldier, Holmes urged his audience to embrace physical courage, which in his mind was nearly synonymous with manliness, as a prerequisite for self-government.
This is not to imply that Holmes sought to exclude women from membership in the polity Far from it. Notwithstanding his avowed homage to the glories of manliness, the logic of his dissenting opinions inexorably expected all Americans, irrespective of gender, to tolerate frightening creeds of communism that foreboded mass violence. Eschewing the tiresome tropes of chivalry, Holmes flatly refused to exempt women from the perils of constitutional democracy. Women were in effect expected by Holmes to summon the courage — the manliness, if you will — that was expected of their male counterparts. Moreover, unlike most men of his time, Holmes enthusiastically embraced women as intellectual partners. Therefore, if the contemporary reader finds morally problematic the proposition that manliness, in all its gendered ungainliness, can be enlisted as a civic virtue, she or he would do well to consult the entirety of Holmes’s actions and words, a dollop of which I intend to serve up.
The Article is organized as follows. In Part II, I take up the provocative and now popular narrative by scholars that Holmes’s celebrated support for the First Amendment was in reality the unseen handiwork of his admirers and detractors, both of whom had offered him copious advice about what he should do differently in future cases before the Supreme Court. Holmes was the one who put pen to paper but it was these interested others, the revisionist story goes, who had supplied him with the substance of his words. However, I show in Part II that a close examination of Holmes’s judicial opinions reveals that his arguments do not reflect the views of his purported influencers. What Holmes drew from as a jurist, Part II will suggest, were the moral lessons about manliness, and specifically, manly courage, that he had gleaned from the ordeals and triumphs he had experienced as a combat soldier in the Civil War.
We begin in Part III to chart some of the adolescent origins of Holmes’s manliness. Part III dwells mainly on a young Oliver Wendell Holmes as an undergraduate at Harvard College. It was at Harvard that Holmes started to reveal with demonstrative clarity a callow but stubborn manliness whose two constituent properties of independence of thought and a fondness for physical danger would come to form a basic foundation of his judicial philosophy. Part IV follows a 23-year-old Holmes into battle, as he quits Harvard to fight for the North in the Civil War. Thrice wounded, once nearly dying, Holmes deepened his insights about manliness by testing it with almost fatal intensity in the baptism of combat. Chief among these insights was the notion of keeping faith in one’s courage in the face of horror and hopelessness.
Part V explains how Holmes, decades later, as a Supreme Court Justice, would enlist this outwardly martial manliness for the orderly ends of civil society. Rather than mining the standard (and well-worn) justifications for the right of speech as a means to discover truth, Holmes argued that the right of speech was vital to instill in Americans, regardless of their gender, the virtue of manliness. For Holmes felt ardently that constitutional democracy logically required a people to steel themselves to tolerate speech that was menacing to public safety, speech that threatened to destroy the federal government and foment violent pandemonium. In other words, as Part V elaborates, Holmes believed that constitutional democracy required of its citizens that they comport themselves with what he styled manliness. Part VI revisits Holmes’s landmark dissents in Abrams v. United States and Gitlow v. New York and explains in detail how his dissenting opinions in both cases evinced a theory of manliness which I had fashioned in Parts IV and V. In the course of doing so, Part VI also clarifies how scholars have tended to misread these dissents as standard liberal Enlightenment arguments that had been championed to immortal fanfare by English philosophers such as the 17th-century John Milton and the 19th- century John Stuart Mill. Holmes’s contributions, Part VI will show, were very much his own.