I looked some more at the secularly sainted Oliver Wendell Holmes jr. and have to say that he has every attribute of someone who should never have held public office in a democracy, no, not even in a republic which claims to be based on the assertions about human beings and their rights and moral obligations contained in The Declaration of Independence and the Bill of Rights. He is a perfectly horrible mix of indifference to human suffering, an arrogant assumption of inequality and worth of human beings, an assumption that existing inequalities is an atavistic phenomenon that people should not attempt to change and that any attempt to do so is a sign of a fool and a pudding head. Mixed with that, or perhaps the origin of it, is a towering sense of self worth and the worth of those in his own circle and an utter and happy disdain for those who he considers to be biologically, certainly intellectually inferior to him.
He had thoroughly class-centric willingness to assert that what is beneficial for him and his class is a result of their innate superiority and that, as the superior class of human beings, that what enhances their wealth, power and privilege is the very definition of the good. I have to say that, as with Darwin, the more I read of what he wrote and what those who were close to him said about him, the more repulsive he is.
While he might have been a tolerable and cranky member of a faculty at a private law school, he never had any business holding public office. That those who elevated him to his position and confirmed him in it thought he was an acceptable Supreme Court member is proof that there is something seriously wrong with the mechanism of government found in the United States Constitution, the political system that results from it and the culture that operates the "free press" under it. And he is hardly the only member of the courts about whom that can be said.
As mentioned before, that people who are taken as liberals champion him as an admirable example is solid evidence that there is something seriously wrong with liberalism as it is widely if not commonly understood. Any liberalism that could overlook Holmes' repugnance needs to be scrapped and a real liberalism based on an absolute moral obligation to observe and respect the most common and banal or rights held in real equality must replace it.
Justice Holmes was a complex and contradictory figure. I've read a couple biographies, quite a few of his books, essays and letters, not to mention some number of judicial opinions. And in may ways his views are not terribly dissimilar to those of Teddy Roosevelt, who put him on the high court.
ReplyDeleteHolmes volunteered for service in the Civil War out of a passionate belief in abolitionism; by the end of his life he doubted whether the concept of natural rights had any meaning beyond that of the interest of the stronger. In reflecting on his experiences on the war his writing has an unexpectedly romantic, elegaic ring to it. The lessons of war, the "soldier's faith," seems to be the last vestige of his younger committments, the wisdom of the survivor.
In law school I first really read Holmes in Mort Horwitz's American Legal History class. There Holmes was the great hero, the man whose denial of any real reality of natural law was held up as the epitome of "realism." Law, we were assured, is politics by other means. It is instrumental rather than moral in nature. It is how one gets what one wants, not how justice (that "brooding omnipresence in the sky," as Holmes put it) is somehow incarnated in a concrete society. And, to that extent, it is understandable why Holmes' stature is so universal--he enables both ends of the political spectrum, allowing anyone not to subordinate himself to any outside concept of justice or morality, but to see the law as a way to impose one's will as "justice" and "morality."
His eugenics and social darwinism were pretty much par for his class and age. As I think you've noted before, they only shock us because we've pretty well repressed the memory of how ubiquitous they were not so long ago.
Talk of real rights is of course standard law-talk. We haven't been able to follow Holmes the whole way; we're not quite as rigourous and consistent as he. So we talk endlessly of human rights, but natural law, which is the larger intellectual base of any talk of transcendental rights, has become something of a laughing-stock. But the inconsistency doesn't interfere with business.
As I said the other day I'm becoming more interested in the real but unnoticed intellectual bases on which we base our ideas and acts, which have a real and determinative effect on the results but which, often, are merely there out of established convention and not because they, themselves, have any kind of basis in evidence or even observation. I think a lot of times they are the product of more general ideological beliefs. Of course, the one of those that interests me the most is materialism, something whose intellectual foundations have been rather conclusively demolished as the results of it are still up and, instead of being condemned for demolition, are still being built on.
ReplyDeleteI think Holmes' as with Darwin, show a deterioration in their thinking and emotional life as they learned those materialistic framings and built on them. I suspect there was an emotional investment in it based on the fame and repute both of them were gained by adopting those framings. Gaining a higher place in the world and losing their souls, as it were, one of the most common moral disasters in human life.
I was moved to study and write about the history of eugenics because I see, unnamed, many of the same ideas still commonly held by the educated class in the English speaking world and, at least, Germany, only not named that. I think it accounts for some of the depravity but even more so the massive indifference to poverty and suffering that is especially bad in the law in the United States.
At the risk of bringing to your attention something you may know better than I, here is a link to Chesterton's 1922 book, "Eugenics and other Evils":
ReplyDeletehttp://www.cse.dmu.ac.uk/~mward/gkc/books/Eugenics.html
It contains much, I suspect, that you would disagree with. But, at the very least, it provides a picture of the state of the question from the days before anyone connected it with Nazism.
I consulted it when I was writing that series. It's reputed to be one of the things that kept the British government from adopting full fledged eugenics the way that it was adopted in some American states and Canadian provinces. One of the points I've had to make a number of times in arguing the issue is that the Catholic church was one of the strongest institutions that opposed eugenics and the intellectual basis of it, one of the things that I"m sure led Chesterton to oppose it so strongly.
ReplyDeleteThere are few things worth taking seriously that you're going to agree with entirely, one of the things I've learned as I grew up from the state of adolescence my formal education left me in. All or nothing is a stand of children more interested in group identity than ideas.