Oliver Wendell Holmes and Fixations of Manliness

John M. Kang

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781315438115
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

Oliver Wendell Holmes, Jr. has been, and continues to be, praised as America's greatest judge and he is widely considered to have done more than anyone else to breathe life into the Constitution's right of free speech, probably the most crucial right for democracy. One indeed finds among professors of constitutional law and federal judges the widespread belief that the scope of the First Amendment owes much of its incredible expansion over the last sixty years to Holmes's judicial dissents in Abrams and Gitlow.

In this book, John M. Kang offers the novel thesis that Holmes's dissenting opinions in Abrams and Gitlow drew in part from a normative worldview structured by an idiosyncratic manliness, a manliness which was itself rooted in physical courage. In making this argument, Kang seeks to show how Holmes's justification for the right of speech was a bid to proffer a philosophical commentary about the demands of democracy.

1 The father and the hero

The father

Oliver Wendell Holmes, Jr. was born on March 8, 1841 in Boston, and he was born to a family of unusual prestige. Holmes could count among his ancestors Anne Bradstreet, the first notable poet in seventeenth-century New England; there was also Dorothy Quincy, wife of Founding Father John Hancock.¹ Holmes’s maternal grandfather was Charles Jackson, a veteran of the Indian wars, who later served as a judge on the Massachusetts Supreme Court.² Holmes’s father was Oliver Wendell Holmes senior. The father was a celebrated poet and writer of fiction and one of the founders of the Atlantic Monthly.³ He was also a Paris-educated physician and, in time, Dr. Holmes ascended to the deanship of the Harvard Medical School.

Among his family members, no one played a more important role in Holmes’s life than did Dr. Holmes.⁴ Some scholars have intimated that an enduring hostility had festered between son and father. No doubt, there were times when they, like any son and father, traded resentments. Evidence for any sustained dislike between the two is wanting, however. Indeed, there appear to have survived only two reported incidents which directly allude to ill feelings between Dr. Holmes and his son. Both reports were furnished by the Jameses, the famous family that produced William (the psychologist) and Henry (the novelist); both William and Henry were Holmes’s dear friends. On one occasion, William reportedly told his father, Henry senior, that “no love is lost between W. père and W. fils.”⁵ The other occasion concerns a dinner that Dr. Holmes had with Henry senior. According to Alice James, daughter to Henry senior, an insecure Dr. Holmes “had asked [my father] if he did not find that [Dr. Holmes’s sons] despised him….”⁶ Some scholars have interpreted the two incidents as emblematic of ongoing strife between father and son.⁷

Such interpretations risk inferring too much. For it is unclear what was meant by either William’s statement or Dr. Holmes’s question. Did they refer to a permanent state of unhappiness between the doctor and his son, or a transient trifle? If the reports by the Jameses were properly construed as evidence for the existence of a lifelong enmity, one is hard pressed to explain why there is a dearth of corroborating evidence. Perhaps the most that can be said of the conversations related by the Jameses is that they hint at a relationship in which Dr. Holmes and his son experienced their normal share of irritation and displeasure in a long relationship that, while loving, was emotionally textured and psychologically complicated.

One person at any rate believed that theirs was a relationship of mutual admiration. In 1944, nine years after Holmes’s death, his nephew, Edward J. Holmes, composed an illuminating letter for Chief Justice Harlan Fiske Stone. Edward was anxious to correct the mistakes in Catherine Drinker Bowen’s best-selling biography of Holmes.⁸ Interspersed with fictionalized scenes and invented dialogue, Bowen’s partly imagined biography was published in 1944, and, according to Edward, it pressed the unfounded thesis that the relationship between father and son had been spiked with antipathy.⁹ Edward objected that “[f]ather admired son and son admired father.”¹⁰ Conversations between father and son, Edward said, were “the most brilliant … that I have ever heard … with absolutely fair give and take and only one criterion, the skill in presentation of the argument.”¹¹ From Edward’s perspective as a family member, there existed much respect between Holmes senior and Holmes junior, as well as an intellectual delight in each other’s company.

The documents left by Holmes himself imply that his relationship with his father was one of respect and, in its way, affection. That Holmes valued his father as a man of accomplishment was evident. When he was twenty, the son summarized his father’s achievements in a manner akin to a tribute. In the brief autobiography that he penned for his college album at Harvard, the 20-year-old Holmes first announced a necessary but prosaic fact: “I, Oliver Wendell Holmes Jr., was born March 8, 1841, in Boston.”¹² After this announcement, Holmes limned many facts about himself, including the campus clubs he was participating in, and what vocation he planned to pursue after college.¹³ But before he shared these or any other details, Holmes first informed the reader that he was born of a distinguished father.

My father was born in Cambridge, graduated at Harvard, studied medicine in Paris and returning to Boston practiced as a physician there a number of years. Giving this up, however, he has since supported himself by acting as a professor of the Medical School of Harvard College, by lecturing, and by writing a number of books.¹⁴

The description of his father was published in 1861.¹⁵

Even before, in 1857, when Holmes was a college freshman, Dr. Holmes had already acquired a national reputation as a delightful author.¹⁶ The status carried far more esteem back then than it does today. For one must recall the obvious but significant fact that nineteenth-century America was a world devoid of radio, television, and the internet. The standard means for what now goes by the name of “mass communication” were newspapers and periodicals. Dr. Holmes flourished in this setting. Educated readers were charmed by his regular essays – titled “Autocrat of the Breakfast Table” – in the Atlantic Monthly.¹⁷ Narrated in the voice of a chatty “autocrat,” the essays discussed a colorful assortment of issues with wit and humor. They also contained comedic banter between the autocrat and the fictional boarders who lived in his rooming house.¹⁸ With the Autocrat, Dr. Holmes eventually became a well-known name.¹⁹

The doctor was also a good father, according to Holmes, at least in the sense that he wanted his son to thrive intellectually and professionally, and took steps to ensure that he would. Two pieces of evidence are useful here. Both involve conversations that Holmes had with his friend, the future Supreme Court justice, Felix Frankfurter; one was from 1926, the other from 1932. In 1926, Holmes wrote to Frankfurter that Dr. Holmes had “certainly taught me a great deal and did me a great deal of good.”²⁰ Nor did the son appear to begrudge the father for having sternly pushed him into the study of the law. In 1932, Frankfurter remarked to Holmes on “the unwisdom of parents in pushing their sons into a profession of the parent’s desire.”²¹ Holmes knew too well what this meant. He told Frankfurter that the day after he was born, Dr. Holmes boasted to his sister the extraordinary plans for his son. The doctor said to his sister that his infant boy was “a little individual who may hereafter be addressed as – Holmes, Esq. or The Hon. – Holmes, M.C. or His Excellency – Holmes, President.”²² Leaving nothing to chance, Dr. Holmes, having spent two decades observing his son’s strengths and weaknesses, settled on the conclusion that the law was the best profession for him. Thus Holmes recounted to Frankfurter: “my governor … put on the screws to have me go to the Law School – I mean he exerted the coercion of the authority of his judgment.”²³

Holmes may have at times resented such an imperious father, yet it is difficult to locate firsthand evidence from Holmes that he did. Dr. Holmes may have “coerced” his son to become a lawyer but the father thereby placed the son on a career path that produced extraordinary results, as Holmes was eventually apotheosized as a national icon. Given this trajectory, it is not surprising that Holmes said of his father that he “did me a great deal of good.”²⁴

Nevertheless, Holmes also refused to ignore his father’s failings. The refusal, however, hinted at a relationship marked by ambivalence, not hatred. Return to the conversation that Holmes had with Frankfurter. With respect to the question of whether his father’s domineering personality wrought good ends alone, Holmes reportedly commented with a drily candid, “Well I don’t know.”²⁵ Holmes equivocated elsewhere. Turn again to the letter dated 1926 from Holmes to Frankfurter, the one in which Holmes lauded his father for “[teaching] me a great deal and [doing] me a great deal of good.”²⁶ Another part of the letter was less complimentary as the son narrated his father’s penchant for mockery.²⁷ While reading a book on child psychology, Holmes told Frankfurter that he

came last night on a passage about the superiority complex that made me wonder whether my father, who certainly taught me a great deal and did me a great deal of good, didn’t a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgements
• 1. The father and the hero
• 2. A collegiate manliness
• 3. Reasons for fighting in the war
• 4. The experience of war: “A splendid carelessness for life”
• 5. Faith through fire
• 6. The famous cases: Abrams and Gitlow
• 7. Holmes’s change of mind
• 8. Gender and citizenship
• Conclusion
• Index