Posts Tagged ‘Gitlow’

Oliver Wendell Holmes, Jr. was a complete skeptic of American law. But what does it mean to say this? Holmes’s February 4, 1901 speech in memorial of John Marshall provides some clues. It is widely acknowledged that Holmes’s  Civil War wounds and battlefield experiences profoundly shaped his understanding of law. But only in reflecting on this memorial have I recently begun to appreciate just how much these wounds and battlefield experiences distorted that understanding.

On the 100th anniversary of the day on which John Marshall took his seat as Chief Justice of the United States, Holmes–presiding as Chief Justice of the Massachusetts Supreme Judicial Court–delivered an answer to a motion that the court adjourn. On paper, his words are brutal. I wonder what impression they conveyed to his live audience.

Holmes’s speech included words of apparent praise for Marshall: “[W]hen I consider his might, his justice, and his wisdom, I do fully believe that if American law were to represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” But a close reading reveals that Holmes praised power, not  John Marshall. For Holmes was no worshipper of law. Marshall was a representative figure of American law; but to Holmes the sceptic of American law, Marshall represented the ability of an idea to “shoot across the world the electric despotism of an unresisted power.”

Holmes insisted that it “most idle” and “futile” to consider a man apart from his circumstances, for a man is part of a larger organism made up of surrounding circumstances. The man is equivalent to an inch of mucous membrane or a cube from the brain, not a tenor speaking or an orator speaking. Shifting from physiological to martial imagery, Holmes analogized the “great man” to one who happens to find himself at “a strategic point in the campaign of history”: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Linking Marshall more specifically to Colonel Robert Gould Shaw (who would have been familiar with Holmes’s Boston audience for leading the black soldiers of the Massachusetts 54th regiment in their hopeless death charge on Fort Wagner), Holmes continued:

I no more can separate John Marshall from the fortunate circumstance that the appointment of Chief Justice fell to John Adams, instead of to Jefferson a month later, and so gave it to a Federalist and loose constructionist to start the working of the Constitution, than I can separate the black line through which he sent his electric fire at Fort Wagner from Colonel Shaw. When we celebrate Marshall we celebrate at the same time and indivisibly the inevitable fact that the oneness of the nation and the supremacy of the Constitution were declared to govern the dealings of man with man by the judgments and degrees of the most august of courts.

What does it mean to celebrate “the oneness of the nation and the supremacy of the Constitution”? It depends. For setting aside a day in honor of this “great judge” is a symbol. “[A]nd what shall be symbolized by any image of the sight depends upon the mind of him who sees it.”

To a Virginian, the setting aside symbolizes “the glory of his glorious state.”

To a patriot, it symbolizes “the fact that time has been on Marshall’s side, and that the theory for which Hamilton argued, and he decided, and Webster spoke, and Grant fought, and Lincoln died, is now our cornerstone.”

And to the lawyer, “it stands for the rise of a new body of jurisprudence, by which guiding principles are raised above the reach of statute and State, and judges are entrusted with a solemn and hitherto unheard-of authority and duty.”

To Holmes, the setting aside of this day on honor of Marshall marks something powerful and dark:

To one who lives in what may seem to him a solitude of thought, this day–as it marks the triumph of a man whom some Presidents of his time bade carry on his judgments as he could–this day marks the fact that all thought is social, is on its way to action; that, to borrow the expression of a French writer, every idea tends to become first a catechism and then a code; and that according to its worth his unhelped meditation may one day mount a throne, and without armies, or even with them, may shoot across the world the electric despotism of an unresisted power.

We see here an earlier version of Holmes’s more famous statement, delivered in dissent more than twenty years later, that “[e]very idea is an incitement.” Gitlow v. New York, 268 U.S. 652, 673 (1925). But unlike the “redundant discourse” before the Court in Gitlow–discourse that “had no chance of starting a present conflagration”–the discourse of Marshall and “the men of his generation” successfully invested an iconic American symbol with death-dealing power. This setting aside of a day in honor of Marshall, Holmes concluded, “is all a symbol, if you like, but so is the flag”:

The flag is but a bit of bunting to one who insists on prose. Yet, thanks to Marshall and to the men of his generation–and for this above all we celebrate him and them–its red is our lifeblood, its stars our world, its blue our heaven. It owns our land. At will it throws away our lives.

And thus concludes Holmes’s memorial words for Marshall: “The motion of the bar is granted, and the court is adjourned.”

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