Friday, March 12, 2010

Oliver Wendell Holmes, Constitution Destroyer

Thomas Bowden offers a superb essay in The Objective Standard on Oliver Wendell Holmes' 1905 dissent in Lochner v New York and its legal aftermath.

Sound like a snooze fest? Far from it. For anyone interested in one of the major steps that led to the modern Court's abandoning the Constitution, it's a must read. Twice. At over 11,000 words of careful prose, that's no small effort, but it will be well rewarded.

Bowden discusses the details of the case and why the Court decided as it did, including the reasons for Holmes' dissent. That mere 617 word legal dissent [pdf warning], as much as the case itself, influences the law even today and stands as a clear historical marker in the Progressive destruction of objective law and the Constitution.

What Bowden doesn't discuss — it's not his purpose — is how Holmes' view grows out of his general adoption of Pragmatism. In many ways, Holmes anticipated James and Dewey, and injected that deadly philosophy into mainstream legal thought.

His Pragmatism is shown clearly by such statements as: “General propositions do not decide concrete cases,” and “Every opinion tends to become a law,” and the reshaping of law is the “natural outcome of a dominant opinion.” It's made even more obvious by his view that, as Bowden puts it, "a proper constitution averts disaster by providing an orderly mechanism for embodying in law the constantly shifting, subjective opinions of political majorities."

Given the ultimate success of that view, it's not surprising that Holmes could say with impunity later in life: “All my life I have sneered at the natural rights of man.”

All this may sound remote from the day-to-day onslaught of statism we're currently battling. But consider that HR 3200 (the 'Health Care' bill), Cap and Trade (which will come back alive after that issue is settled), and many similar Congressional rapes would not likely have gotten as far as they have if Congress knew SCOTUS would strike them down at once.

Consider, too, that relationship between basic ideas and the law the next time you hear some Progressive argue, in essence, "anything goes if the majority favor it." That's the ghost of Holmes talking*.

The view that there are no unchanging basic principles, and therefore no basic inviolate rights — and therefore any decision democratically arrived at to usurp them is perfectly fair — is Pragmatism applied to the law.

Given how thoroughly Pragmatist the Court in the past century has become, it isn't hard now to see the effects of abstract legal philosophy on daily life. The Court's Kelo decision to do nothing in response to her home being stolen for the 'good of the community' is just one recent example.

We have Oliver Wendell Holmes to thank for much of that.

*"[Pierce, James, Dewey, and Holmes] helped put an end to the idea that the universe is an idea, that beyond the mundane business of making our way as best we can in a world shot through with contingency, there exists some order, invisible to us, whose logic we transgress at our peril." Louis Menand, in his book, The Metaphysical Club


Ken said...

I'm beginning to suspect that the term pragmatism could be adequately replaced in most cases by will to power.

Jeff Perren said...

An interesting thought, but I don't see how. Nietzsche and Dewey are very different.

You might flesh this out if you have time and interest. Here's my take:

Pragmatism, as briefly as I know how to explain it without gross distortion:

Ontology (metaphysics): Any entity can perform any action. Fire can freeze under conditions of standard atmospheric temperature and pressure, acorns can grow into apple trees.

(Or, shorter, reality is a Heraclitean flux and there is no necessity.)

Epistemology: We can never tell in advance, no matter the state of our knowledge, what anything will do. Perpetual trial and error is our only option.

Ethics: The individual has value only as a part of the collective. (This is a stretch in interpretation, however. Dewey's ethics is virtually contentless. Pragmatism focuses on method.)

Politics: Social Democracy (Ditto the comment on ethics; the stretch is not a big stretch, though, given Dewey's many 'popular' writings.)

Adopting that philosophy, as the Progressives do more consistently than others, can certainly lead to expressing a will to power. But it can equally lead to total passivity, or any of a number of things.

David Brooks shows no tendency of asserting a will to power (though he seems perfectly willing to enable in it others and kowtow with alacrity).

Jeff Perren said...

Just occurred to me... Maybe you're picking up on the Pragmatist's "anything goes" or Machiavellian leanings...?

Ken said...

Perzackly, Jeff. "Whatever works" = "whatever I think works (to my benefit)."

Ted Amadeus said...

Correct me if I'm wrong please, but isn't "metaphysics", pragmatism and immediate expediency/utilitarianism what Cabala is all about?
America, like the Vaticanism that runs most of it now, is comprised of countless great ideas we utterly and habitually fail to live up to, complete with such devices (dogma) to rationalize away our responsibility to do so.
Once an exception is made to a rule, and such becomes popular, it's not very long before making exceptions in exchange for allegiance becomes the rule, then a law unto itself...Equal justice under law, is thus replaced with "social justice"!