Oliver Wendell Holmes Jr

[the hairy bloke]

As a Brit I know the quote "Freedom of Speech does not mean the freedom to shout "Fire" in a crowded theatre".

I've come across another today, even more useful in this day and age: "The freedom to swing one's arms ends where the other man's nose begins".

How influential in terms of law, politics and society is Holmes Jr?

 

[Edward]

Ha, yes. I like that one. I can't claim to have a bead on the man in terms of the wider popular culture, but in terms of his significance to the development of US caselaw within his field, I'd say he's probably a much bigger noise than ever Denning was over here, or even - gasp - Hugh Laddie!! lol

 

[Atticus Finch]

I would say that he wasn't the most influential Supreme Court Justice to ever sit...but he was fairly influential with respect to 1st Amendment law. I think this is mainly because he was at the right place in time when Sedition Act prosecutions began percolating up to the Supreme Court. Even so, much of his contribution to our jurisprudence came from his dissents, which clearly influenced opinions in subsequent cases.

I'm familiar with both quotes above, but I guess Homes is most frequently quoted with respect to his thoughts about "A clear and present danger" of harm being necessary for the constitutional suppression of speech by the government. BTW, I've never fully understood why an action movie about offshore drug interdiction was named after his quote.

I’ve always admired him for several reasons. First, I’m fascinated by the 1st Amendment and the case law surrounding it. Second, I’ve always thought that Homes followed an earthy, common sense approach in his legal analysis. And third, I’ve always admired his military service, albeit service against my grey-clad ancestors.

AF

 

[dhermann1]

Great bio of Justice Holmes, "Yankee From Olympus", by Catherine Drinker Bowen. His father, O. W. Holmes Sr., known as the Autocrat of the Breakfast Table, was the author of the famous poem, "Old Ironsides", which was instrumental in the preservaton of the old 18th century frigate, USS Constitution (America's answer to HMS Victory).

 

[vitanola]

Justice Holmes' jurisprudence is consists so very largely of his pithy, pragmatic dissents, which over time became the basis for subsequent majority opinions. He had a facile mind and a marvelous turn of phrase ("A word is but the skin of a living thought.", "The fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics", "Lawyers spend a great deal of their time shoveling smoke.", "The mind of a bigot is like the pupil of the eye. The more light you shine on it, the more it will contract." and my favorite: "Certitude is not the test of certainty. We have been cocksure of many things that were not so.")

A Freethinker and a pragmatist, he distrusted the strong regulatory State, but utterly despised the moralizing, casting of blame, and the idolatry of the individual promoted by the advocates of so-called "Natural Law".

His 1873 revision of "Kent's Commentaries on American Law", the 1881 publication his Lowell Lectures as "The Common Law", and his 1897 Harvard law Review essay, "The Path of the Law" influenced the general course of American jurisprudence rather more than did his famous dissents, I should think.serene

Justice Holmes is perhaps a bit out of fashion, now, as his serene pragmatism does not sit well with those "moderns" who now so loudly promote absolute truths.

 

[Atticus Finch]

Holmes was wounded three times during the American Civil War. Shot through the neck at Sharpsburg, he was lost on the field and thought to be dead. His father actually rushed down from Boston to conduct a search and finally found Holmes, Jr. in a makeshift hospital. The younger Holmes, writing in the third person, had this to say about the event.

At Antietam a bullet pierced his neck and again his condition was critical. Dr. Holmes, on learning the news, set out to search for his son. The search lasted many worried days and brought the father close to the lines at several points. He found his son already convalescent and brought him back to Boston, where he wrote his experiences under the title, "My Hunt for the Captain," an article that was enthusiastically received as bringing home to Boston a first-hand picture of the trials of war directly behind the lines.

I'm guessing that if you've been shot three times in a war where several million armed rebels were trying their best to disolve the nation...you don't get too upset about some lonely loudmouth on a soapbox preaching bad things about the government.

AF

 

[Harp]

I’ve always admired him for several reasons. First, I’m fascinated by the 1st Amendment and the case law surrounding it. Second, I’ve always thought that Homes followed an earthy, common sense approach in his legal analysis. And third, I’ve always admired his military service

I believe he started Harvard Law before Appomattox and always felt a tinge of guilt therafter.
His constitutional perspective remains relevant.

 

[countryclubjoe]

Hi All

WHAT IS THE JUSTIFCATION FOR DENYING A PERSON HIS/HER RIGHTS ?
OWH
Best regards
CCJ

 

[Asienizen]

Maybe it's his belief in Eugenics, and the hideous fruit that this pseudoscience bore in 1941 that have turned me off to Holmes. Forced sterilizations, restriction of interracial marriage etc. Note, the Nazis loved him and used him as justification for their dirty deeds, because guys like Holmes is where they got their racial theories from.

Yes he was a critic of Natural law, but positive law is just the arbitrary assertions of those in power. In regards to yelling fire in a theater, I suggest one read the related chapter in Block's "Defending the Undefendable" which discusses this idea.

I think Holmes would fit into the group that Kolko refers to when he discusses the "Triumph of Conservatism" during that era.

In short, I guess I'm not enthusiastic about him, even if he was wounded in the Civil War.

 

[Edward]

Maybe it's his belief in Eugenics, and the hideous fruit that this pseudoscience bore in 1941 that have turned me off to Holmes. Forced sterilizations, restriction of interracial marriage etc. Note, the Nazis loved him and used him as justification for their dirty deeds, because guys like Holmes is where they got their racial theories from.

Yes, it's a nasty school of thought. Sadly it had far more traction in that era than we generally like to think nowadays. Churchill was also an advocate of such forced sterilisation.

Yes he was a critic of Natural law, but positive law is just the arbitrary assertions of those in power. In regards to yelling fire in a theater, I suggest one read the related chapter in Block's "Defending the Undefendable" which discusses this idea.

When it first arrived, I suspect an element of legal positivism was a healthy balancing factor to over-emphasis on natural law, but it's not a philosophy to be uncritically embraced. The key argument for the defence - the "only obeying orders" line - at Nuremberg was soundly rejected in favour of a more "natural law" approach. Indeed, it was really the extremes of the Nazi regime which led to positivism falling significantly out of favour for the rest of the twentieth century. It is making rather a comeback nowadays on the field of tax law, of course - see Google, Amazon, et all and their dealings with the UK.

 

[Harp]

When it first arrived, I suspect an element of legal positivism was a healthy balancing factor to over-emphasis on natural law, but it's not a philosophy to be uncritically embraced. Indeed, it was really the extremes of the Nazi regime which led to positivism falling significantly out of favour for the rest of the twentieth century. It is making rather a comeback nowadays on the field of tax law, of course - see Google, Amazon, et all and their dealings with the UK.

Actuarial enrolled agency positively trumps federal/state tax law.

 

[countryclubjoe]

Hi Folks

OWH was a big student of contracts. While he never advocated legally how to avoid a forced contract ala Goverment statutes, he left his readers to think outside the box in terms of entering into a contract with the goverment. IE---
1- Social Security
2- Department of Motor Vehicles
3- Internal Revenue Service.

The goverment agency's listed above were not even heard of when OWH was making his mark in the US halls of legal jurisprudence.

Hence, a goverment agency cannot force a citizen to enter into a contract with said goverment agency. This is contract law plain and simple.
One only needs to read contract law and read between the lines. Most if not all attorney's will not inform the average Joe of this simple legal
concept, hence they would all be out of a job.

Think outside the basic box for a minute.
Were you of legal contractual age when you received your SSN from the SSA? NO
How about when you fill out your w1040 tax return? You are forming a contract to do business with the IRS, you are therefore agreeing unknowingly with there rules, statues and bogus laws. You are also incriminating yourself and quit possibly giving up your due process rights. All because you entered into a contract under threat of arrest and or intimadation.
Now how about the DMV- Department of Motor Vehicles.. A really corrupt organization. DMV will tell the average citizen that having a drivers license is actually a privilige. Well folks by obtaining that so called privilige and signing up or forming a contract with the DMV, you are actually giving up your natural right to TRAVEL on the public highways. Think about it for a minute.

OWH stated that a contract should be fair and balanced for all parties...

Just some food for thought.
Best regards
CCJ

 

[Orion]

There's a great anecdote about officer Oliver Wendell Holmes that came out of his service in the civil war. During the battle of Fort Stevens, he saw a tall man with a hat standing on the parapet observing the fight and drawing fire from Confederate sharp-shooters.

"GET DOWN YOU DAMNED FOOL!" shouted Holmes, causing the man to step quickly down from danger.

The man on the wall was President Lincoln.

 

[4spurs]

I never thought that your freedom to swing your fist ends at the other guys nose. I think it ends far short of there as nobody has the freedom to intimidate another person by swinging their fist close to the other person's nose.

 

[Seb Lucas]

Hi Folks

OWH was a big student of contracts. While he never advocated legally how to avoid a forced contract ala Goverment statutes, he left his readers to think outside the box in terms of entering into a contract with the goverment. IE---
1- Social Security
2- Department of Motor Vehicles
3- Internal Revenue Service.

The goverment agency's listed above were not even heard of when OWH was making his mark in the US halls of legal jurisprudence.

Hence, a goverment agency cannot force a citizen to enter into a contract with said goverment agency. This is contract law plain and simple.
One only needs to read contract law and read between the lines. Most if not all attorney's will not inform the average Joe of this simple legal
concept, hence they would all be out of a job.

Think outside the basic box for a minute.
Were you of legal contractual age when you received your SSN from the SSA? NO
How about when you fill out your w1040 tax return? You are forming a contract to do business with the IRS, you are therefore agreeing unknowingly with there rules, statues and bogus laws. You are also incriminating yourself and quit possibly giving up your due process rights. All because you entered into a contract under threat of arrest and or intimadation.
Now how about the DMV- Department of Motor Vehicles.. A really corrupt organization. DMV will tell the average citizen that having a drivers license is actually a privilige. Well folks by obtaining that so called privilige and signing up or forming a contract with the DMV, you are actually giving up your natural right to TRAVEL on the public highways. Think about it for a minute.

OWH stated that a contract should be fair and balanced for all parties...

Just some food for thought.
Best regards
CCJ

Hmmm. Well my view is that social security and income tax - particularly getting the wealthy to pay tax - are the hallmark of a civilised society. We have a social contract with our fellow human beings to ensure no one is disadvantaged. OWH was a marvellous master of polemics and we can all learn from that.