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The Long Life And Broad Mind Of Mr. Justice Holmes
June/July 1978 | Volume 29, Issue 4
“When the people… want to do something I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, (Goddamnit, let ‘em do it!’ ”—Oliver Wendell Holmes
Few men have seen as much of our history, and from such advantageous viewpoints, as Oliver Wendell Holmes, Jr. As a boy in Massachusetts he met veterans of the Revolution. He went to school in a Boston shaken by abolition. He fought through the Civil War, and it is said to have been his voice that shouted the rough warning to Lincoln when the President exposed his high hat above the ramparts at Fort Stevens. With peace Holmes became a lawyer and a great scholar. He served as a judge for half a century, first on the high bench of Massachusetts and then on the United States Supreme Court. And at the age of ninety-two, just retired, he received an early official visit from the newly elected Franklin D. Roosevelt. (“Why are you reading Plato, Mr. Justice?” was the President’s genial opening.) That such a span of life should have been granted to a man so competent to use it is a rare event in the history of any nation.
Holmes was born in 1841 in Boston, into a world that regarded itself as the intellectual and commercial center of the nation. His father, Dr. Oliver Wendell Holmes, was not only one of America’s favorite poets and novelists; he was also a distinguished medical practitioner who published a paper on the contagiousness of puerperal fever which saved the lives of thousands, perhaps millions, of women. On his mother’s side the infant was a grandson of Justice Charles Jackson of the Supreme Judicial Court of Massachusetts, on which bench Holmes was later to sit not only as an associate, but as chief justice.
The Holmeses were not rich, but they were comfortably off. Dr. Holmes, a wit and a raconteur, was in high demand at intellectual gatherings. Charles Sumner, Emerson, and Longfellow were close friends and frequent callers at his house. Such an elite background has been regarded by many as a check to the creative impulse. Henry Adams, born three years before Oliver Wendell Holmes, Jr., under the very shadow of the Statehouse, claimed that he had been less equipped for life in nineteenthcentury America than if he had started as a Polish Jew, “a furtive Yacoob and Ysacc still reeking of the Ghetto, snarling a weird Yiddish to the officers of the customs.” Holmes, however, had little use for such self-dramatization. He selected from his background what tools he needed for the life that he wished to lead, and discarded the rest as best he could. He grew up into a tall, lean, strong young man, strikingly handsome yet of a cool disposition, tolerant, amused, incessantly curious, but with a certain disdain for the mob and an iron determination to lead his life by his own lights no matter what people or forces might stand in his way.
He was one of eighty in the Harvard Class of 1861, graduating just as the Civil War began. Although he was repelled by what he saw as the excesses of the abolitionists and although he was always fond of many Southerners, there was no question in his mind but that the Union had to be preserved, and he enlisted at once in the 20th Massachusetts Regiment, known as the “Harvard Regiment,” in which he was soon commissioned. Many of the intellectuals of his generation, including Henry and William James, did not take up arms in the war. Holmes did not seem particularly critical of such men. He believed that each man should make up his own mind. During his three years’ service, he was three times badly wounded: in the chest at Ball’s Bluff, in the neck at Antietam, and in the heel at Predericksburg.
After Antietam the enthusiastic and emotional Dr. Holmes rushed to his son’s side, taking care to record the dramatic events of his journey in an article for The Atlantic Monthly , “My Hunt After ‘The Captain.’ ” The son noted this, as he also noted his father’s undoubted affection. He was always just, but his father’s florid style was not to be his. As he later said, the Harvard Regiment never wrote about itself in a newspaper.
Holmes always regarded his military service as the most intensely lived part of his existence. In later years when commercial greed seemed to engulf America, he was to feel that the long absence of the cruel test of warfare was making people soft. On the whole, although he admired men like the railroad tycoon James J. Hill, whom he regarded as representing “one of the greatest forms of human power,” he preferred warriors to stockbrokers. And in a Memorial Day address at Harvard in 1895 he made a statement which today sounds remarkably bellicose: “War, when you are at it, is horrible and dull. It is only when time has passed that you see that its message was divine.… For high and dangerous action teaches us to believe as right beyond dispute things for which our doubting minds are slow to find words of proof. Out of heroism grows faith in the worth of heroism. The proof comes later, and even may never come. Therefore I rejoice at every dangerous sport which I see pursued. The students at Heidelberg, with their sword-slashed faces, inspire me with sincere respect. I gaze with delight upon our polo players. If once in a while in our rough riding a neck is broken, I regard it, not as a waste, but as a price well paid for the breeding of a race fit for headship and command.” I