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Mencken on Holmes:

My colleague David Schleicher referred to this amazing takedown of Holmes, and the bizarre affection "liberals" had for him, by H.L. Mencken. A taste: "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."

Dan Schmutter:
This is the best quote:

"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."
8.19.2009 11:50am
Hank:
That is a good quotation, but it makes lawmakers seem too passive, as if they never offer to sell their principles in exchange for campaign contributions and endorsements.
8.19.2009 11:58am
DiverDan (mail):
I really liked the whole paragraph from which the above-quote was taken. It's just as appropriate today as it was in 1930 - some things, like the greed and amorality of lawmakers, just never change.
8.19.2009 12:02pm
OrinKerr:
David,

I read the linked article and looked for the "amazing takedown," but I couldn't find it.
8.19.2009 12:14pm
DavidBernstein (mail):
Orin, Mencken concisely, and amusingly, points out that contrary to his reputation as a fierce and brilliant skeptic, Holmes had an extremely naive and simplistic view of politics, and that contrary to his reputation as a "liberal," and his adulation by "liberals," he was anything but. And he said this at a time when Holmes' stock among the intelligentsia was at a peak, and he anticipated later critiques of Holmes by decades.

There, now I'm sure you can find it.
8.19.2009 12:27pm
MarkField (mail):
I guess I find it ironic that the attitude Mencken criticizes in Holmes -- defer to the legislature -- is today a common theme of conservatives. We're always being told here at VC, for example, that we should defer to majority rule on the issue of gay marriage.
8.19.2009 12:32pm
DavidBernstein (mail):
Oh, and not to mention that Mencken presents very "modern" public choicey ideas on the issues of the purpose of a constitution, and regarding rent-seeking, at a time when any such ideas were marginalized at best among elite legal thinkers.
8.19.2009 12:33pm
CJColucci:
It has long been known -- though it may have been less obvious in 1930 -- that Holmes was not a "liberal" as liberals themselves, not to mention others, understand the phrase. Holmes never hid his contempt for many liberal legislative nostrums, but saw nothing in the Constitution that prevented the government from making bad policy. In his day, when liberal were trying to push such nostrums through legislatures and other Justices were inclined to strike them down, it would be only natural for casual observers to think that Holmes, who was inclined to let people make their own mistakes, was sympathetic to their cause -- especially when you add in his free speech dissents. I suppose some people even now don't know that, though we hardly need that justification to give us an excuse for a link to H.L. Mencken.
8.19.2009 12:33pm
DavidBernstein (mail):
Mark, (some) modern conservatives have adopted a historically wholly unconservative ideology, that democracy should (almost) always win out. There's nothing "conservative" about this point of view, except that it will tend to have conservative political results when the judiciary is stocked with liberals.
8.19.2009 12:36pm
OrinKerr:
David,

I don't see it that way, but perhaps this a case in which someone who agrees with you is "amazing" and someone who disagrees with you is "extremely naive." If that is the case, I just want to say that I agree with you 100%. ;-)
8.19.2009 12:37pm
Thoughtful (mail):
"and the Bill of Rights would have no more significance than the Code of Manu."

How prescient...
8.19.2009 12:42pm
OrinKerr:
Mark Field,

I think the broader point is that there is no consensus among conservative-ish legal thinkers -- much less among the bloggers at this blog -- on the proper role of the courts.

For example, David B. and I tend to disagree on most constitutional issues: I'm a more of a burkean conservative stare decisis, judicial minimalist type, and I believe David is more or less the opposite. Same blog, very different views.
8.19.2009 12:42pm
DavidBernstein (mail):
Nope, Orin, Holmes did, in fact, express "naive" views about politics. In Lochner, for example, he discussed "the right of the people to enact their will into law." It's naive to think that of law, in general, as reflecting "the will of the people." First of all, there is no such thing as "the will of the people," and millions have lives have been lost because people have thought there is, and that they were the embodiment of it. Second, to the extent Holmes just meant "majority rule," we all recognize today, as Mencken recognized in 1930, but many at the time did not, that many laws reflect the will of a dedicated, well-organized minority, sometimes a tiny minority.

As for amazing, Mencken is generally amazing.
8.19.2009 12:46pm
DavidBernstein (mail):
I doubt Holmes and Burke would have gotten on.
8.19.2009 12:49pm
Gordo:
Per Orin Kerr's critique of the recent (as in recent decades) penchant of "conservative" critics of the court to take a Holmesian perspective on legislative prerogatives:

Those who have watched [Ted] Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.

What gets me is the hypocrisy on both sides of this issue, as liberals decry Lochnerism and extol Brennanism and conservatives do the opposite.
8.19.2009 12:52pm
OrinKerr:
David writes:
Nope, Orin, Holmes did, in fact, express "naive" views about politics. In Lochner, for example, he discussed "the right of the people to enact their will into law." It's naive to think that of law, in general, as reflecting "the will of the people." First of all, there is no such thing as "the will of the people," and millions have lives have been lost because people have thought there is, and that they were the embodiment of it. Second, to the extent Holmes just meant "majority rule," we all recognize today, as Mencken recognized in 1930, but many at the time did not, that many laws reflect the will of a dedicated, well-organized minority, sometimes a tiny minority.
So the fact that Holmes used the phrase ""the right of the people to enact their will into law" is naive? I'm not sure I follow. As I read that, that is not a claim that every piece of legislation is a perfect expression of the will of the people: That would indeed be naive. Rather, the phrase seems more like a statement that if the people have a will, or, if you prefer, there is a strong majority preference in favor of a certain proposed law, that preference can lead to it being enacted into law through the elected branches. Having spent the summer working in the Senate, it's not immediately clear to me what is naive about that.
8.19.2009 12:59pm
fnook (mail):
Holmes did, in fact, express "naive" views about politics. In Lochner, for example, he discussed "the right of the people to enact their will into law." It's naive to think that of law, in general, as reflecting "the will of the people."

Hmm. I guess I follow that. Perhaps "will of the people" is simply American shorthand for "laws passed by a duly elected legislature." Plus, I have a difficult time associating the phrase "politically naive" with people who, like Holmes, actually fought in the Civil War.
8.19.2009 1:03pm
CJColucci:
I'd be very surprised if Holmes was "naive" and had any illusions about "the will of the people" actually representing anything other than the effective marshalling of the actual ruling forces in society and the enactment of their preferences in laws passed by nominally-democratically-elected legislatures. He simply thought the Constitution gave judges only very limited powers to second-guess the nominally-democratic process. If he thought it were his business, he probably would have had even less use for the actual will of the people if it existed and could be expressed.
8.19.2009 1:03pm
PLR:
I am somewhat amazed that DB finds Mencken amazing.

And for the record, I concur.
8.19.2009 1:07pm
DavidBernstein (mail):
In the context of the time, all the cool ("Progressive") kids believe that democracy represented the will of the people, and the more democracy the better, hence direct election of senators, referenda, recall of judges, etc. Holmes wasn't a Progressive, but, as Mencken suggests, one reason the Progressives loved him is that he also confused, or at least conflated, the outcome of legislative processes with the people's will. His Lochner dissent (in which he also seemed to assume that legislation is "the natural outcome of a dominant opinion") is but one example; the comments section of a blog post is not the place to prove it.

And as an aside, "the right of the people to enact their will into law" is no easier, at best, to find in the text of the Constitution than the right to "liberty of contract."
8.19.2009 1:14pm
A Law Dawg:
Threads like this remind me why I really do owe Orin a beer.
8.19.2009 1:17pm
MarkField (mail):

I think the broader point is that there is no consensus among conservative-ish legal thinkers -- much less among the bloggers at this blog -- on the proper role of the courts.


Oh, I agree entirely. I didn't even have any VC poster particularly in mind (though I think Prof. Somin takes this view), but the commenters in the threads. There's certainly a substantial subset of those who call themselves conservative or libertarian who insist that issues like gay marriage be decided by majority rule.


Mark, (some) modern conservatives have adopted a historically wholly unconservative ideology, that democracy should (almost) always win out. There's nothing "conservative" about this point of view, except that it will tend to have conservative political results when the judiciary is stocked with liberals.


Well, I agree with this, but the attitude sure seems common among self-described conservatives. Small sample size caveat applies, of course.
8.19.2009 1:20pm
OrinKerr:
And as an aside, "the right of the people to enact their will into law" is no easier, at best, to find in the text of the Constitution than the right to "liberty of contract."

But see U.S. Const. Amend X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
8.19.2009 1:22pm
A. Zarkov (mail):
"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."

Today he would add same sex marriage and the legalization of sodomy. A view shared by many of his contemporaries. Winston Churchill told Lloyd George: "... one might as well legalize sodomy as recognize the Bolsheviks..." See here.
8.19.2009 1:26pm
ObeliskToucher:

OrinKerr:
And as an aside, "the right of the people to enact their will into law" is no easier, at best, to find in the text of the Constitution than the right to "liberty of contract."

But see U.S. Const. Amend X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

To think that I lived long enough to see Orin quote an argument by Texas Governor Rick Perry...

Amazing days, amazing days...

( :-), in case it wasn't obvious...)
8.19.2009 1:31pm
Kelvin:
If you embrace Mencken's dubious view of constitutional history, it does not seem "bizarre" that liberals would embrace Holmes, all the other Justices were much worse.


The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even the legislature may not go. The Supreme Court, in Marbury v. 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 it late years the court has taken the opposite line, and the public opinion seems to support it. Certainly, Dr. Holmes did not go as far in that direction as some of his brother judges . . .
8.19.2009 2:00pm
Zywicki (mail):
I'm surprised to learn that there was a publication of Holmes's--or anyone else's--dissenting opinions as a book in that era. A few years ago I recall seeing a volume of Justice Scalia's dissenting opinions on the shelf at the Barnes &Noble and was surprised. I assumed that was the first time anyone had published something like that.

I guess in terms of style, Holmes was the Scalia of his day (or vice-versa). Are there any other justices who have had their dissents published as a book for a popular audience?
8.19.2009 2:20pm
Smooth, Like a Rhapsody (mail):
I am not at all sure that Burke and Holmes would not have "gotten on". Holmes "got on" with the brillant young poseur Laski, though I doubt they shared a heck of a lot ideologically.

Burke was, remember, an actual politician (and a Whig, at that!!), and so was not against the legislative process; nor was he against the notion that that process could do good. He certainly calumniated the French Revolution, but that was pretty low hanging fruit for any principled conservative at the time.

Put me in the Holmes/Orin camp on this one.
8.19.2009 2:37pm
CJColucci:
Holmes wasn't a Progressive, but, as Mencken suggests, one reason the Progressives loved him is that he also confused, or at least conflated, the outcome of legislative processes with the people's will. His Lochner dissent (in which he also seemed to assume that legislation is "the natural outcome of a dominant opinion") is but one example; the comments section of a blog post is not the place to prove it.

The comments section of a blog post may not be "the place to prove it," but you raised the issue and you've been called out on it. I've read a fair amount of Holmes's extrajudicial writing (none of it handy, or I'd quote chapter and verse), and though he clearly expresses the view that, in the long run, the dominant forces in the community are largely entitled to get their way, he neither endorses the wisdom of what the dominant forces want (he often thinks it silly) nor equates it either with simple majoritarianism or a mystical "will of the people." In a nominally-democratic polity, it would be unusual if he did not, especially in judicial writings, express this concept in "will of the people" shorthand, but that's no basis for fastening on him a naive, simple-minded, and obviously wrong view and then taxing him with an obvious error.
8.19.2009 3:14pm
DavidBernstein (mail):
Smooth, you're right, if Burke had been sufficiently obsequious, Holmes would have liked him just fine, whatever their ideological differences.
8.19.2009 3:19pm
Dan Simon (mail) (www):
Nope, Orin, Holmes did, in fact, express "naive" views about politics. In Lochner, for example, he discussed "the right of the people to enact their will into law."

Holmes was defending the democratic process. Bernstein is advocating various constraints on democratic accountability, in the apparent belief that those constraints would somehow work to make government more libertarian, rather than more authoritarian.

And Bernstein is calling Holmes naive about politics?
8.19.2009 4:48pm
CJColucci:
Winston Churchill told Lloyd George: "... one might as well legalize sodomy as recognize the Bolsheviks..."

Apparently, Churchill thought these were both bad things. But we did the second and Bolsheviks are now largely gone -- probably faster than if we hadn't. Now we've done the first. I'm willing to bet that heterosexuality isn't heading to the ash-heap of history any time soon.
8.19.2009 5:02pm
Jack Smith (mail):

Mencken presents very "modern" public choicey ideas on the issues of the purpose of a constitution, and regarding rent-seeking, at a time when any such ideas were marginalized at best among elite legal thinkers.



This is what I took from the article, and why I thought Prof. Bernstein considered it an "amazing take-down". Mencken, known as a vitriolic critic to many, here displays pedestrian knowledge of the law but lucid insight to public choice theory. I expected nothing more than vapid attacks on Holmes' character, rather than a precise explanation of why the political theory undergirding Holmes' legal reasoning was at fault.
8.19.2009 5:41pm
corneille1640 (mail) (www):
I tend to side with the view that Holmes was not naive. He seems to me to have been more a cynic than anything. I'm thinking particularly of his "three generations of idiots are enough" comment (Buck v. Bell?) and his statement (which I am garbling but hopefully not taking out of context) that if the legislature wants society to go to hell in a hand basket, he'll help them do it.

To cite his use of phrases like "will of the people" as naive seems a bit ad hoc, almost as if one needed to come up with an argument on the spot to prove Holmes's naivete.

Still, I am continually surprised at how much liberals tend to adore Holmes.
8.19.2009 5:49pm
Barbara Skolaut (mail):

"and the Bill of Rights would have no more significance than the Code of Manu."

How prescient...
Thoughtful beat me to it.

Amazing, isn't it? Menken's been dead for decades, yet he wrote as though he was personally acquainted with the present Administration. :-(
8.19.2009 7:27pm
A. Zarkov (mail):
CJColucci:

"Apparently, Churchill thought these were both bad things. But we did the second and Bolsheviks are now largely gone -- probably faster than if we hadn't. Now we've done the first. I'm willing to bet that heterosexuality isn't heading to the ash-heap of history any time soon."

We can't replay history, but Russia did get a lot of aid from the West in the early days; the US in particular provided technical know-how and much investment flowed from American banks. Who knows-- had we tried harder to strangle the infant monster, the world might have been much better off.

Churchill's sodomy remark simply points out that what was once unthinkable is now commonplace.
8.19.2009 9:35pm
SuperSkeptic (mail):
The Fathers, in framing it, did not have the powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail.

and the devil is in the details...
8.19.2009 10:31pm
Asher (mail):
I always thought that talk of will of the people in Holmes's opinions, or anyone's opinions for that matter, was just a polite legal fiction of sorts and not an actual statement on anyone's part about how reflective a given statute really is of popular will.
8.20.2009 12:47am
einhverfr (mail) (www):
Why the "Laws of Manu" instead of something comparable but closer to home, like "The Twelve Tables?"

To I qualify as an Ancient Law Geek yet?
8.20.2009 1:32am
BGates:
Bernstein is advocating various constraints on democratic accountability, in the apparent belief that those constraints would somehow work to make government more libertarian, rather than more authoritarian.

I'm going to go ahead and side with James Madison and David Bernstein on that one.
8.20.2009 2:31am
Michael F. Martin (mail) (www):
Not everybody can be H.L. Mencken, and it is wise for the rest of us to stick our knitting in critiquing the writing of somebody like Justice Holmes. My $0.01.
8.20.2009 1:11pm
Snaphappy:
"what was once unthinkable is now commonplace."

Just like interracial marriage, trancontinental air travel, and men going about hatless.
8.20.2009 1:43pm
Henry679 (mail):
Was does Bernstein allow comments here but not in his recent post on the importance of discussions of Antisemitism? Apparently what is important is only what he has to say, I guess. That is a funny kind of "discussion".
8.20.2009 1:54pm
Dan Simon (mail) (www):
Michael F. Martin: Are you claiming that arbitrary constraints on democratic accountability tend to make government more libertarian? Or that constraints on democratic accountability carefully handcrafted by Madison, Bernstein and Martin, and applied by religiously devoted, uncorruptible libertarians in perpetuity (appointed for the task via some unspecified infallible mechanism), tend to make government more libertarian?

Just curious...
8.20.2009 3:15pm

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