Holmes’s war experiences left him with the view that it all boils down to force, to the imposition of death. “Holmes had little enthusiasm for the idea that human beings possessed any rights by virtue of being human. Holmes always liked to provoke friends who he thought were being sentimentally idealistic by saying, ‘all society rests on the deaths of men,” and frequently asserted that a ‘right’ was nothing more than ‘those things a given crowd will fight for—which vary from religion to the price of a glass of beer’” (369-70 in Budiansky’s biography of Holmes).
Holmes’ rejection of any “natural” theory of rights always returned to this assertion about death:
The jurists who believe in natural law seem to me to be in that naïve state of
mind that accepts what has been familiar and accepted by them and their
neighbors as something that must be accepted by all men everywhere. The
most fundamental of the supposed preexisting rights—the right to life—is
sacrificed without a scruple not only in war, but whenever the interest of
society, that is, of the predominant power in the community, is thought to
demand it (376).
And he understood the law entirely through its direct relation to force. “The law, as Holmes never tired of pointing out, is at its foundation ‘a statement of the circumstances in which the public force will be brought to bear upon men through the courts’” (435). “Holmes’s point was that the law is what the law does; it is not a theoretical collection of axioms and moral principles, but a practical statement of where public force will be brought to bear, and that could only be derived from an examination of it in action” (244). “[H]e would come to insist as a cornerstone of his legal philosophy that law is fundamentally a statement of society’s willingness to use force—‘every law means I will kill sooner than not have my way,’ as he put it[;] . . . he did not want the men who threw ideas around ever again to escape responsibility for where those ideas led. It was the same reason he lost the enthusiastic belief he once has in the cause of women’s suffrage: political decision had better come from those who do the killing” (131).
Temperamentally, this is easy enough to characterize. The manly facing up to harsh facts, to an unsentimental view of humans and their social institutions, and a disgust with all sentimental claptrap.
Philosophically, it is less easy to describe. Where there is power there must be force is clear enough. But what Holmes seems to miss is that the law often serves as an attempt to restrict force. Rights (in some instances) are legal statements about instances where the use of force is illegitimate. Certainly (as Madison was already well aware and as countless commentators have noted since) there is something paradoxical about the state articulating limitations on its own powers.
Who is going to enforce those limitations? The answer is the courts. And the courts do not have an army. That’s what the rule of law is about: the attempt to establish modus vivendi that are respected absent the direct application of force. Holmes, of course, is arguing that the court’s decision will not be obeyed unless there is the implied (maybe not even implied, but fully explicit) use of state power to enforce that decision. But his position, like all reductionisms, does not do justice to the complexities of human behavior and psychology. The Loving decision of 1967, like earlier decisions on child labor laws, led to significant changes in everyday social practice that came into existence with little fanfare. There are cases where the desire to live within the law is enough; there is an investment in living in a lawful society. Its benefits are clear enough that its unpleasant consequences (in relation to my own beliefs and preferences) are a price I am willing to pay in order to enjoy those benefits. Of course, there are also instances where force needs to be applied—as with the widespread flouting of the Brown decision. My point is simply that the law’s relationship to force is more complex than Holmes allows. The law is an alternative to violence in many instances, not its direct expression.
My position fits with my notion of the Constitution as an idealistic document, of a statement of the just society we wish to be. The law is not, as Holmes would argue, completely divorced from questions of morality and justice (more claptrap!). That relation is complex and often frustrating, but it does no good (either theoretically or practically) to just cut the tie in the name of clear-sighted realism. Social institutions exist, in part, to protect citizens from force. And, yes, that can mean in some instances that state force must be deployed in order to fend off other forces. But it also means in some instances that the institutions serve to prevent any deployment of force at all. The law affords, when it works, an escape from force, from the unpredictable, uncontrollable and deeply non-useful side effects of most uses of force.
In short, the manly man creates (at least as much as he discovers) the harsh world of struggle he insists is our basic lot. True, Holmes did not create the war he marched off to at the age of twenty. He experienced that war as forced upon him. But he never got quite clear about who was responsible. He was inclined to blame the abolitionists and their moral fervor, their uncompromising and intolerant absolutism. He certainly had no patience for their self-righteous moralizing. Still, blaming them had some obvious flaws, so he ended up converting the idea of struggle into a metaphysical assertion. He, like Dewey and James, but in a different, more Herbert Spencer-like register, became a Darwinian, focused on the struggle for existence. But he yoked Darwin to Hobbes; it is not the best adaptation to environmental conditions that assures survival, but the best application of force. Of course, if the environmental condition is the war of all against all, then the adepts at violence will be the ones who survive.
All of this goes along with contempt for the losers in the battle. Holmes had no patience with socialists or with proponents of racial justice. The unwashed were driven by envy; “no rearrangement of property could address the real sources of social discontent” (396), those sources being the envy of the successful by the unsuccessful. It’s a struggle; just get on with it and quit the whining—or expecting anyone to offer you a helping hand. Holmes did accept that the law should level the field of struggle; he was (somewhat contradictorily) committed to the notion of a “fair” fight. Where this ideal of “fairness” was to come from is never clear in his thought—or his legal opinions. (He was, in fact, very wary of the broad use of the 14th Amendment’s language about “due process” and “equal protection of the laws.” The broad use of the 14th amendment was being pioneered by Louis Brandeis in Holmes’ later year on the Supreme Court.) Budiansky is clear that Holmes is by no stretch of the term a “liberal.”
Holmes’s famous dissents from the more conservative decisions of the pre-New Deal Court are motivated by his ideal of fairness—and (connecting to earlier posts about what liberalism even means) that ideal is used against decisions that in American usage are understood as “conservative” even though those conservative decisions were based on the “liberal” laissez-faire idea that the state cannot interfere in business practices. Holmes’s scathing dissents from the court’s overturning of child labor laws enacted by the states are usually argued on the grounds of consistency. He says that state governments already regulate commerce (for example, of alcohol), so it is absurd to say they can’t regulate other aspects of commercial activities.
Regulation, it would seem, is always about competing interests. Since it is inevitable that there will be competing interests, society (through its regulatory laws) is best served by establishing a framework for the balancing of those interests. Regulation is neither full permission nor full prohibition. It strives to set conditions for a practice, conditions that take the various interests involved into account. But Holmes never really worked out a theoretical account of regulation—another place where his reductionism fails him. Yes, regulations must be enforced, but they are also always a compromise meant to mitigate the need to resort to force–and to prevent anyone from having a full, free hand in the social field characterized by a plurality of different interests and aims.