A Long Shadow

By Shiffman, Stuart | Judicature, September/October 2007 | Go to article overview

A Long Shadow


Shiffman, Stuart, Judicature


A long shadow Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, by Frederic R. Kellogg. Cambridge University Press. 2007. 218 pages. $70.

The shadow cast by Oliver Wendell Holmes, Jr. over American law and jurisprudence is lengthy. Though it has been more than a century since Holmes was nominated and confirmed as a justice of the United States Supreme Court, and 74 years since his retirement, Holmes remains a towering figure for any scholar of the role of law in our society. In the past two decades alone he has been the subject of four biographies, four symposia, two new collections of his writing, and numerous articles and monographs. For many, Holmes was the poster judge who exemplified the notion of "judicial restraint." The justice was willing to uphold the constitutionality of progressive legislation that he disliked, remarking that "if my fellow citizens want to go to hell, I will help them. It's my job."

Frederic Kellogg's Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint offers still another perspective on the jurisprudence of the only Supreme Court justice to have been the subject of a bestselling historical novel (Yankee from Olympus by Catherine Drinker Bowen), a hit Broadway play, and a motion picture (both titled "The Magnificent Yankee"). Kellogg suggests that contemporary notions of judicial conservatism lack fidelity to true judicial restraint Using that premise as his springboard he argues that Holmes' common law theories merit new consideration because his approach to constitutional, statutory, and common-law decision making produce an admirable measure of judicial restraint, more in keeping with the true meaning of that philosophy. His book is an attempt to place the issue in a broad historical and theoretical context that is neither innately liberal nor conservative, as those terms are used in contemporary legal debate.

Constitutional interpretation

American jurisprudence has long debated theories of constitutional interpretation. Originalists argue that the Constitution must be interpreted in the manner that the original authors intended when they wrote the document in 1787. Others believe that the document must be interpreted in the context of an always evolving society. Sadly, modern legal debate has become a battle over buzz words and talking points that often muddles rather than sharpens the discussion.

In a speech to the Harvard Law School Association of New York, Justice Holmes observed that. "It cannot be helped, it is as it should be, that the law is behind the times." Timing in constitutional law was an important element of Justice Holmes' legal theory. He focused heavily on the social context within which legal and constitutional decisions are made. Holmes believed strongly that judges should avoid reading their own beliefs into the law. But to say what judges should not do is only a partial answer to the difficult and complex debate about how judges should decide cases. The constitutional scholar Paul Freund often asked "should the court serve as the conscience of the country?" This debate is often reflected in decisions and dissents of state high courts as well as the United States Supreme Court as these bodies struggle with questions of same-sex marriage, the death penalty for juveniles, and sexual activity between consenting adults, to mention just a few of the hot button issues currently confronting American jurisprudence.

Can Justice Holmes add insight to this ongoing contemporary debate? For Professor Kellogg the answer is an emphatic "yes." Holmes believed there was an important distinction between judicial restraint and judicial circumspection, and advocated the second approach. If judges routinely assumed that broad constitutional principles were part of the legal fabric, trumping legislation and precedent, then the judiciary could destroy the legislative process. Such a judicial philosophy could be a clever but poisonous argument. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Long Shadow
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.