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

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