Oliver Wendell Holmes and Gitmo

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Historian Paul Moreno has a fascinating post at Liberty & Power explaining how Supreme Court Justice Oliver Wendell Holmes, Jr., who was a hero to both the Progressives and the New Dealers, helped create the prison camp at Guantanamo Bay:

The judge most responsible for the Gitmo situation was Oliver Wendell Holmes, Jr., prominent in the pantheon of civil libertarians. Shortly after the Spanish-American War, President Theodore Roosevelt was concerned that the Supreme Court might insist that all constitutional guarantees extended to our newly-acquired empire—in popular parlance, that "the Constitution follows the flag." With a Court seat open in 1902, TR sought and obtained a pledge from Holmes that he would not apply this standard. Holmes then lied to the press about his secret meeting with the President. He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiians.

Thus we carved out special exceptions where the guarantees that the Constitution imposes on the federal government do not apply.

Read the rest here.

As Moreno's post illustrates, Holmes represents the worst of Progressive Era collectivism. From his dissent in Lochner v. New York (1905), where he argued that the Constitution does not protect economic liberty, to his dissent in Meyer v. Nebraska (1923), where he voted to uphold a state law banning foreign language instruction for children, Holmes was a leading voice against individualism and in favor of thuggish majoritarianism. And let's not forget his infamous majority opinion in Buck v. Bell (1927), which upheld a Virginia law permitting the forced sterilization of the "feebleminded and socially inadequate." Here's what law professor Paul Lombardo told Reason about that:

It's the most blunt kind of statism. If we can draft you into the Army, he suggests, then we ought to be able to sterilize you. We execute criminals; why can't we sterilize these people in the asylums? He says, well, we've endorsed the idea of vaccinating people in the time of smallpox epidemics. If we can vaccinate them, we ought to be able to sterilize them. He says it's not too much of a leap from doing a vaccination to cutting the fallopian tubes, as if these two things were somehow equivalent. So Holmes does really break new ground in terms of a radical definition of state power.

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  1. Is this the ivory tower version of “It’s Clinton’s Fault”?

  2. Whoa. Fuck Oliver Wendell Holmes, then.

  3. It would’ve been nice if the article had noted Johnson v. Eisentrager, where the Truman Administration got the Supreme Court to agree that US courts had no power (of habeas corpus or anything else) over German POWs held in Germany who had never been in US soil.

    The case is the most obvious comparison to Gitmo, but in the debate over Gitmo you rarely heard discussion of it. Wrongfully decided, perhaps, but there was a comparison. I assume that the silence is a combination of WWII being a “good war” and it being Truman, not some Republican.

  4. Three generations of imbeciles are enough you fucking libertarians! What do you want a imbecilocracy?

  5. Didn’t Gov. Palin thoroughly cover the implications of these Supreme Court cases in her campaign?

  6. These INSULAR CASES are an integral part of the IRS Income Tax Fraud.

    The US POSSESSIONS, or STATES of The UNITED STATES,( UNITED STATES in this instance being Congress Assembled, the Federal Government) are not bound by the taxing clauses of the US Constitution.

    The Constitution does not follow the Flag with respect to taxation, in particular, that a direct tax is subject to apportionment among the states.

    See Section 861 of Title 26 for more clarification.

    These possessions have been a drag on our rights ever since we collected them.

    or check out http://www.kickingthedragon.com

  7. Holmes did lay some important groundwork involving free speech. It strikes me he was a believer in judicial restraint, thus his famous comment about “if the people want to go to hell it’s not my job as a judge to get in the way.”

    In a lot of these cases Holmes was with a solid majority, including very conservative judges like Taft, so it’s not like it was his “progressivism” that was the cause.

    In fact, his personal political philosophy seems very familiar…From the article: “”The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” “Holmes had a brutal worldview and was indifferent to the welfare of others.”

    He sounds like a lot of the right leaning libertarians that post here. I bet he said “life ain’t fair” a great deal…

  8. He sounds like a lot of the right leaning libertarians that post here. I bet he said “life ain’t fair” a great deal…

    He even wrote it in his decisions once or twice.

  9. Didn’t Gov. Palin thoroughly cover the implications of these Supreme Court cases in her campaign?

    We want to bring honor back to Thurman the COnstitutional Attorney, and Dan the High Court Justice, and Al the Skeezy Congressman, and…

  10. The case is the most obvious comparison to Gitmo, but in the debate over Gitmo you rarely heard discussion of it.

    Funny, but the Eisentrager case has come up repeatedly in the discussions of Gitmo that I’ve been reading over the past five years or so.

  11. In fact, his personal political philosophy seems very familiar…From the article: “”The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” “Holmes had a brutal worldview and was indifferent to the welfare of others.”

    The difference with libertarians being, of course, that we are concerned with the powerful imposing their will on others, and willing to stand up against it. Holmes, apparently, was not, failing to see that a skepticism/pessimism about the essential goodness of those wielding state power is the fundamental reason for resisting expansions of the state, not a reason for shrugging and looking the other way.

  12. In fact, his personal political philosophy seems very familiar…

    The best text in this regard, the one I would recommend to anyone who wishes to understand where he’s coming from, is The Metaphysical Club by Louis Menand.

  13. Instead of pretending that the 16th amendment doesn’t apply to anyone, how about working to repeal it? Then we can stop arguing over ALL CAPS and gold fringes and admiralty law and other conspiracist crap.

    Congress has legally levied an income tax on your ass and no amount of wishing will make it otherwise.

  14. The difference with libertarians being, of course, that we are concerned with the powerful imposing their will on others, and willing to stand up against it. Holmes, apparently, was not, failing to see that a skepticism/pessimism about the essential goodness of those wielding state power is the fundamental reason for resisting expansions of the state, not a reason for shrugging and looking the other way.

    Not quite true. He’s (unsurprisingly) closer to R.W. Emerson than to Burke, which places him quite a bit closer to libertarianism than classical conservatism.

  15. He was not a bad right-leaning libertarian at all in his personal philosophy, but he held that the judicial branch was to defer to the political branches, so he upheld laws like the one in Lochner while personally questioning its wisdom.

    And yes, he was certainly no conservative as he thought natural law was kinda funny.

  16. Lemme get this straight, MNG; in Holmes’ time, the emanations from penumbras that you believe are all over the constitution protecting the right to an abortion, were already in place; yet you consider a guy who was A-OK with coerced sterilization to have been practicing judicial restraint?

  17. If we can draft you into the Army, he suggests, then we ought to be able to sterilize you. We execute criminals; why can’t we sterilize these people in the asylums?

    He’s like a human slippery slope. Mein Gott.

    Also it should be noted that the founders of Planned Parenthood, that bastion of reproductive freedom, were solidly behind the forced sterilization of ‘defective’ people.

  18. Is this the ivory tower version of “It’s Clinton’s Fault”?

    No, it’s the low-brow version of “It’s Reagan’s fault”.

  19. If we can draft you into the Army, he suggests, then we ought to be able to sterilize you. We execute criminals; why can’t we sterilize these people in the asylums?

    This is a great argument *against capital punishment and conscription*, isn’t it?

  20. Holmes dissent in Lochner is absurd. He claimed that the constitution does not protect economic theories. Obviously, sustaining the New York labor law was a de facto endorsement of socialism.

  21. The judicial philosophy of Holmes relative to the approach courts should take in deciding constitutional challenges to legislative enactments is anathema to freedom and our founding. Sad to say, that philosophy rules the day.

    Is it not ironic that under the judicial doctrine called constitutional presumptiveness, courts are not free to question the wisdom of the legislators, yet they have no problem questioning the wisdom of the founders?

  22. So why does he have such a great reputation as a legal thinker? Did he just write especially well?

    1. No, he just said the things that politicians and judges who followed him really wanted to hear. And since he said it from the Supreme Court bench, it was easy to cite him as a persuasive authority.

  23. cunny
    What in the world are you talking about? Did Holmes ever strike down any abortion laws? He upheld a law that the legislature in VA passed. Deference to legislatures is what judicial restraint is, no?

    libertymike
    What economic theories does the Constitution back?

  24. Robert- His reputation as a great legal thinker is not universally accepted.

    MNG-Private property and free enterprise.

  25. MNG-

    Judicial activism is best exemplified by courts creating balancing tests between one’s individual rights as against some “public interest”. The constitution does not authorize courts to make up these balancing tests. Read Justice Black’s dissents. Also, read his James Madison lectures given at NYU. Great stuff.

  26. Where is that at in the Constitution?

    In fact it explicitly says the state can deprive you of property as long as it is done with due process.

  27. libertymike
    Justice Black is one of my all time favorite justices. Court created balancing tests bother me too.

    I’m just saying I don’t think the Constitution does a whole lot for any particular economic theory.

  28. You know, who is thist Damon Root guy, his work is consistenly excellent here.

  29. MNG-

    From Joseph Henry Lumpkin, former Chief Justice of the Georgia Supreme court:

    “Viewing these amendments as we do, as intended to establish justice and to secure the blessings of liberty-to protect person and property from violence; and that these were the very purpose for which this government was established, we hold that they constitute a limit to all legislative power, federal or states, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions; that without this security for personal liberty and private property, our soical compact could not exist. No court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason.”

    He wrote the opinion in Campbell v. Georgia, 11 GA 353, 1852 WL 1345.

  30. His reputation as a great legal thinker is not universally accepted.

    Now that *is* bullshit. He is universally recognized as a great US legal thinker. Whether you agree with his actual conclusions or not is another thing entirely.

    Greatness, in this sense, has no relation to *goodness*, however one constructs the concept.

  31. For another eye-opener, read how Oliver Wendell sabotaged the First Amendment with his “shouting fire in a crowded theater” bullshit comment.
    It’s in Wikipedia.
    See how that case was actually decided, and ask yourself if anybody was coming close to “shouting fire.”

  32. Elemenope-

    If you mean great in the sense that a lot of people, lawyers and non lawyers alike, have heard of him and kinda of remember being told that he was an important judge, then, yes. I agree that there are varying concepts/meanings of “greatness”, but, if the point in contention is his brillance or that his ideas were brillant or that he was a genius,etc, then no. I do not mean to be disagreeable-but there are more than a few legal scholars, lawyers, observers of the law and historians, lawyer and non lawyer alike, who do not consider him to be a particularly great legal thinker.

  33. He is universally recognized as a great US legal thinker.

    And Adolf Hitler was, objectively speaking, a great leader. Which illustrates that one must be careful of the connotations of the word “great”.

  34. For another eye-opener, read how Oliver Wendell sabotaged the First Amendment with his “shouting fire in a crowded theater” bullshit comment.

    Everyone truncates and omits for their own purposes. The original quote was “falsely shouting fire in a crowded theater”. As wiki quoted.

    I agree that the situation in the case hardly qualifies. So did he; he changed his mind about six months later in Abrams, arguing that the ‘Clear & Present Danger’ test was being politically abused.

  35. And Adolf Hitler was, objectively speaking, a great leader. Which illustrates that one must be careful of the connotations of the word “great”.

    Yup.

  36. Oliver Wendell Holmes was a great legal thinker. Terrible…but great.

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