Oliver Wendell Holmes and Gitmo


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.