About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

31 A.B.A. J. 569 (1945)
Hobbes, Holmes and Hitler

handle is hein.journals/abaj31 and id is 595 raw text is: Hobbes, Holmes and Hitler by Ben W. Palmer OF THE MINNEAPOLIS BAR LECTURER, UNIVERSITY OF MINNESOTA All Americans, even the most con- servative, are proud of Mr. Justice Holmes. For his career was intensely American. And it was amazing in its patriarchal length, its variety, its color and-its influence. And the p'-r- sonality of the man, his bearing, ap- pearance and words were most un- usual. His active service in the Civil War, his world renowned book on the Common Law, his judicial career in Massachusetts and on the Su- preme Court of the United States culminated in the triumph of the liberalism with which he was iden- tified in the minds of many and in his apotheosis. Holmes, Cardozo, Brandeis were the three gods of the idolatry of American liberalism, difficult as it is to define the term. More than a hundred years ago English Tories borrowed the word from Madame de Stael or Chateaubriand to hurl it at the Whigs. But the Whigs cheerfully accepted the appellation and in later English political life and thought the liberals were those in general who passed the first Reform Bill, made ceaseless war upon class distinctions in society, privileges of sex, rank, wealth and creed. They stood for the individual freedom of every man to live as he would choose so far as consistently recognizing the similar rights of other men. They had a pas- sion for improving mankind, looked to the future rather than the past, were irked by the bonds of tradition- alism and had an intense faith in the idea of progress. They not only be- lieved in the possibility of progress, in the ability of men not'only to con- quer their physical environment but also to improve social conditions, but for many of them progress was re- garded as related to an evolutionary biological progress which they had come to accept with Darwinism. Im- pressed strongly by Spencer's theory of evolution in sociological matters, they had come to believe that social progress was almost inevitable as part of the universal scheme of things. American Liberalism American liberals followed the Eng- lish tradition in their attacks upon the status quo, against which they felt a presumption of guilt, on what they called entrenched privilege, and in their emphasis on liberty of thought, speech and action. But here as in England there was a depar- ture from the earlier tenets of lib- eralism. For that liberalism, affected by the Manchester school of eco- nomics, by Adam Smith and Ricardo, and by theories of the beneficence of the economic struggle for existence, had accepted laissez faire. But later liberals came to believe in the wis- dom or necessity of using the power of politically organized society not only to lay down rules for the eco- nomic struggle, to give each man a certain area of freedom by keeping others out, but to weigh the scales more heavily in favor of the econom- ically weaker members of society. Progressive inheritance taxes, income taxes, were to redress the balance to some extent. Later came legislation in the field of labor to strengthen the bargaining hand of the employee and to increase his economic security. And with the Great Depression the coming into power of new men in Washington and in many of the states opened the flood gates of legis- lation sponsored by the liberals. The conservative classes held back the flood for a time by litigation and by decisions declaring certain laws unconstitutional. They relied largely on the due process clause of the Four- teenth Amendment which had been accepted by the Supreme Court of the United States as a pronounce- msent of substantive law. It and similar constitutional limitations had been buttressed into judicial accept- ance by a pseudo-natural law of the earlier nineteenth century. As the conflict raged the combat- ants became more evenly balanced in judicial strength and the scales tipped back and forth with five to four decisions. But by the time Holnes died, if not earlier, the con- servatives had been. definitely out- numbered on the Court. And some of the most important doctrines of Holmes as to social legislation, ex- pressed in dissent, had now been adopted by the majority of the Court and written into the law of the land. The triumph of liberalism in legis- lative, executive and judicial depart- ments of the federal government co- inciding as it did with the end of his career placed the capstone of success upon his life in the minds of liber- als who associated him with their cause. In consequence, he shone in the reflected glory of liberalism and its triumph added lustre to his name. But lustre was added by his masterly English style. Indeed his style is one of the obvious causes of his success. November, 1945 • Vol. 31 569

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most