Christopher Hitchens, the journalist and author who died recently, is known for his vibrant expression of strong and contrary opinions on a range of topics, including that towering giant of American law, Oliver Wendell Holmes.
Most of us in the law revere Holmes, and with good reason. We first meet him in our course on constitutional law and never forget him. Civil War hero, philosopher, jurist, Holmes lived a full and active life that inspires us. We still read his crisp, penetrating, memorable judicial opinions with pleasure and admiration. His vibrant personality, his deep reading, his intellectual tolerance, and his astonishing way with words make Holmes a brilliant legal beacon and, to many of us, one of the greatest judges in American history.
Hitchens disagreed. In a 1994 book review, Hitchens referred to the “power-worshiping jurisprudence of that old coward and fraud Oliver Wendell Holmes.” And in 2006, Hitchens described the “clear and present danger” test as “the fatuous verdict of the greatly overpraised Justice Oliver Wendell Holmes.” Hitchens did not elaborate or explain.
So much for Oliver Wendell Holmes! There goes another glittering reputation. Or does it?
We who get paid to argue for a living are allowed, maybe even obliged, to examine what Hitchens says about Holmes. The adversary system we are fond of permits a brief on Holmes’ behalf, so that we can make up our minds properly, after hearing both sides.
Although Hitchens does not explain what he means by a “power-worshipping jurisprudence,” we know what he is driving at. As a judge, Holmes believed in democracy. That belief meant, for Holmes, that the power of the people, as expressed though majority vote of their elected representatives, should generally determine what the law should be. That is why Holmes rarely used judicial review to void laws except when the majority violated certain cherished individual rights.
To Hitchens, such deference to democratic majorities means Holmes worshipped the power of people. Hitchens forgets that the alternative is the judge imposing his or her own subjective values on society. Of course the debate over judicial review and constitutional interpretation continues to this day.
Hitchens next calls Holmes an “old coward.” Old, yes, but a coward? Hitchens cannot mean coward in the sense of lacking physical courage. Holmes dropped out of college to enlist in the Union Army and was wounded three times before the Civil War was over.
Hitchens must be alleging that Holmes was guilty of some form of intellectual cowardice. But Holmes never took a position publicly out of fear, when he privately believed something else. His dissent in a high profile antitrust case brought down the wrath of Teddy Roosevelt, the president who appointed him.
Likewise, how was Holmes a fraud? Hitchens does not say. Presumably Hitchens means that Holmes had a reputation as a “liberal” but often made “conservative” rulings. But it is all a matter of context and balance. Compared to almost all of his fellow Supreme Court justices, Holmes did indeed seem liberal. Whom does Hitchens prefer to Holmes? Rufus Peckham?
In calling it a “fatuous verdict,” Hitchens seems to be saying that Holmes’ famous “clear and present danger” formula for resolving free speech cases was silly. Hitchens implies that Holmes pretended to rely on his supposedly inane (that’s what “fatuous” means) test only to rule frequently against free speech claims.
But Holmes’ deep and tolerant attitude toward freedom of expression still shines through brightly in those wonderful, stirring, almost poetic dissents of his in Abrams (“free trade in ideas”), Gitlow (“Every idea is an incitement…. Eloquence may set free to reason”), and Schwimmer (“freedom for the thought that we hate”), cases familiar to all first-year law students.
It is simply impossible to review Holmes’ free speech opinions and call them “fatuous.” One may disagree with them, one may even try to improve on them, but they are great judicial opinions, rhetorical masterpieces, among the finest defenses of freedom of thought ever written.
We come finally to what is probably the core of Hitchens’ critique of Holmes—that Holmes has been “greatly overpraised.” If there is one dominant theme running through Hitchens’ work, it is his pose as a contrarian and iconoclast. If most of the world thinks one thing, Hitchens the contrarian takes the opposite point of view and asserts it, using vibrant, polemical prose, often with a slash-and-burn, take-no-prisoners style of argument. One can easily imagine what a legal brief written by Hitchens would have looked like.
So it was with Hitchens on Holmes. Most people praise Holmes; therefore Hitchens, true to form, harshly criticizes him.
Hitchens’ iconoclastic attitude toward Holmes is ironic. For Holmes in his time was himself considered a great iconoclast. He led a revolution against the purely deductive approach to judicial decision-making that had dominated 19th century legal thinking. The clarion call of Holmes’ legal revolution famously stated that “experience” and “the felt necessities of the times”—policy considerations—count more in the “life of the law” than logic. Holmes the iconoclast has now become the target of an iconoclast like Hitchens.
A clue to evaluating Hitchens’ criticism of Holmes can be found in the writing of the American author Hitchens most resembles, H.L. Mencken. Like Hitchens, Mencken too was an iconoclast, perhaps the iconoclast par excellence. Like Hitchens, Mencken too deployed a muscular, memorable prose style that left the objects of his withering critiques—people, books, ideas—torn to pieces.
Once having read it, who can forget Mencken’s devastating descriptions of William Jennings Bryan at the Scopes trial? Like Hitchens, Mencken too wrote much on a vast range of topics. Mencken was, in short, Hitchens’ literary godfather and role model. Hitchens is a modern Mencken.
Mencken also showed Hitchens how to view Holmes. In a May 1930 issue of the “American Mercury” magazine, Mencken reviewed a collection of Holmes’ dissenting opinions and pointed the way for Hitchens. According to Mencken, “To call Holmes a Liberal is to make the word meaningless.” Zeroing in on Holmes’ opinions in Espionage Act cases, the Sage of Baltimore went on to say that, “They may be good law, but it is impossible to see how they promote liberty.”
It is hard to distinguish between Mencken’s and Hitchens’ dour perspectives on Holmes. They are almost identical. Hitchens’ 1994 critique of Holmes appeared in a review of a biography of Mencken. In that review, Hitchens described Mencken’s 1930 article and wholeheartedly agreed with it.
Hitchens was a great friend of the First Amendment. He exercised to the fullest his right of free speech and argued for others to have the same rights. His life, his ideas about freedom of expression, his argumentative style, and his controversial view of Justice Holmes are all worth our attention. Even when we disagree with him, and we do often, including about Holmes, Hitchens makes us think, and that enlarges our own mental universe and makes us feel more alive.
Old Holmes would approve.
Daniel J. Kornstein is a founding partner at Kornstein Veisz Wexler & Pollard.