Conservative schizophrenia about Oliver Wendell Holmes

Sandy Levinson

Oliver Wendell Holmes has become one of the key villains in the contemporary conservative critique of "Progressives" circa the beginning of the 20th century.  Randy Barnett and many others hate his Lochner dissent, which, of course, basically licensed untrammeled majority rule even if arguably "tyrannical."  His curt dismissal of "Mr. Herbert Spencer's Social Statics" represented a complete rejection of the notion that the Constitution was somehow a libertarian document.

This critique is not without at least some merit.  Most of us have become wary of Holmes's full throated majoritarianism and his suggestion that judges should basically be indifferent to the tyrannical aspects of government (save, perhaps, when regulating the speech at least of "puny anonymities," though not, say, Eugene V. Debs).  Barnett's critique of "minimum rationality" when used mindlessly to uphold rent seeking regulation like that in Williamson v. Lee Optical Co. or placing high barriers to entry by would-be florists is worth taking seriously.

But one should recognize that it is Oliver Wendell Holmes who is being channeled by those who blithely defend the the sociopath Donald Trump's behavior re the federal tax code, including such surrogates as former New York mayor Rudy Giuliani.  Both praise the sociopath's "genius" in apparently avoiding the payment of any federal taxes for a period of well over a decade.  Giuliani and his fellow enabler Chris Christie have pointed out, probably correctly, that the sociopath broke no laws in zeroing out his participation in helping to finance what the United States does.  What they are really arguing, though, is that their candidate is a Holmesian "bad man" who has no commitment at all to anything that might be called the welfare of his society and is motivated exclusively by the question "what's in it for me?"  That is one of the major points made in Holmes's The Path of the Law, which remains the most important single essay ever written by an American on law.  In it,  Holmes rejected any idealistic or moralistic definition of law in favor of his "predictive" theory, i.e., what courts (or other public authorities) would do.  But the real punch is that he suggested to his impressionable audience of Boston University students and their teachers in 1897 that the best way to understand the law is to adopt the perspective of the "bad man," who is interested exclusively in the possibility of suffering any sanctions for his behavior.  If the answer is no, then the bad man will obviously go ahead and do it.  Interestingly enough, the very nomenclature of the "bad man" suggests that Holmes, who was wounded three times during the Civil War (whereas we can be absolutely and completely confident that the sociopath, had he been alive then, would have taken advantage of the option of simply avoiding conscription by paying for a substitute), did not mean to valorize the bad man, but only to use him as an analytic construct, the same way that students learn in Economics 101 courses about an entirely asocial and amoral "economic man" (I use the gendered term advisedly) who wants only to maximize individual utilities and has no inherent regard for anyone else.  What has happened, of course, since 1897 is that this analytic construct, which indeed has its uses, has become accepted as a description of the way that sophisticated people should in fact behave, so that sociopathic behavior becomes normalized, so long, of course, as it doesn't "violate the law."

David Brooks, about whose column I'm extremely ambivalent, has what is in fact an excellent, albeit somewhat overwritten, column in today's New York  Times pointing out that the sociopathic candidate is in fact a terrible citizen even if one grants, for sake of argument, that he has hired brilliant accountants and others who have enabled him in essence to freeload off the taxes paid by chumps who in fact take seriously their duties (even if not always legally required) as a member of a society dedicated to the goals set out, say, in the Preamble of the Constitution.

Holmes is in fact, for better and worse, the "brooding omnipresence" over much of our jurisprudential and political discussion 85 years after his death.  At the very least, apologists for the sociopath should recognize that they are embracing and making normative what Holmes himself offered only as an analytic construct and that doing so promises only to make our country ever more of an Hobbesian nightmare where no one can be trusted to be anything other than a self-serving sociopath unless explicitly forbidden to do so by the law (which is in fact enforced and not merely "on the books").  It is often said, altogether accurately, that the scandal is not what is illegal (and done anyway), but what is perfectly legal and, as a matter of fact, probably more dangerous to the social welfare than is most illegal behavior.  We count on general social decency, for example, to refrain from taking full advantage of one's First Amendment liberty to say and do really terrible things.  The sociopath candidate cannot restrain himself here anymore than he can with regard to taking advantage of every possible self-serving reading of the tax code.  It would be one thing if, like Warren Buffett, he exhibited even a scintilla of embarrassment and, of course, actually used his alleged fortune to make genuinely charitable contributions.  He does not, though, which is precisely what makes him the quintessential "bad man."





Posted 10:49 AM by Sandy Levinson [link]