Saturday, March 1, 2014

The Realism of Oliver Wendell Holmes, Jr.

The Realism of Oliver Wendell Holmes, Jr.: On Memorial Day in 1895, Holmes delivered a famous address to graduating Harvard students titled "The Soldier's Faith." As a Civil War veteran himself, he warned of the "false faith" which came with war service. A soldier should never "blindly accept" his duty and throw away the joys of living, especially for a cause that "he little understands." Such thinking was in line with Holmes' realism, which he brought to the bench of the Massachusetts Supreme Judicial Court (and later to the U.S. Supreme Court in 1902). The two most notable cases where Holmes displayed his legalistic realism were Schenck v. United States (1919) and Buck v. Bell (1927). In Schenck, Holmes outlined what were perhaps the first federal (legal) limitations to "free speech" since John Adams signed the Alien and Sedition Acts of 1798. Also with Schenck, which occurred on the heels of World War I, Holmes declared that speech could be criminalized if it created a "clear and present danger" to Congress' ability to govern in wartime. Another classic Holmesian legalism emerged in the Buck case, where he deemed the sterilization of the mentally disabled and criminally insane constitutional. In reference to Carrie Buck's family history, the plaintiff who had her Fallopian tubes cut, Holmes infamously decried "Three generations of imbeciles are enough."

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