Justice Holmes and Conservatism
Mendenhall, Allen, Texas Review of Law & Politics
David E. Bernstein's recent book, Rehabilitating Lochner,1 is a careful work of historical revisionism that ought to both please and motivate libertarian and conservative jurists. From its cover, however, one might think that Justice Oliver Wendell Holmes Jr. has nothing constructive or commendable to offer libertarians and conservatives.
The cartoonish image is of a boxing ring in which Justice Peckham and Justice Holmes both appear white-haired and eminently mustachioed. They have apparently been fighting, and the former stands over the latter with his right fist raised in what could be either triumph or anticipation. The judges are wearing their robes and boxing gloves, and Holmes, looking worried and slightly pathetic, crouches on the ground as though about to crawl away. His eyes stare pleadingly at someone or something; they seem to be asking an out-of-frame referee to call the fight.
Although it is good advertisement, this caricature sets up a misleading binary opposition. It suggests that Peckham, who authored the majority opinion in Lochner v. New York,2 an opinion generally understood as libertarian and protective of the freedom of contract,3 supports individual rights whereas Holmes, the dissenter, supports government power over business.4 Such was not the case.
Holmes is enigmatic. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling Holmes only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests,5 Holmes stood against business interests when he rejected New York's Fourteenth Amendment due process defense. (I have avoided the anachronistic term "substantive due process," which gained currency decades after Lochner.)6
Holmes rejected a methodology, notwithstanding the end result. He resisted sprawling interpretations of words and principles-even if his hermeneutics brought about consequences he did not like-and he was open about his willingness to decide cases against his own interests.7 As he wrote to his cousin John T. Morse, "It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits."8
What Holmes disliked about the Fourteenth Amendment was neither the Amendment itself nor due process, but the liberal reading and interpretation of due process that infringed upon the power and province of the several states. Holmes put it this way in his dissent in Baldwin v. Missouri:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words "due process of law[,]" if taken in their literal meaning[,] have no application to this case; and while it is too late t[o] deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.9
It has become commonplace to refer to Holmes as a progressive,10 but Louis Menand points out that "[t]here have been hundreds of efforts since Holmes published The Common Law. …