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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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The latest of Judge Posner’s claims of inaccuracy in Reading Law, by Bryan Garner and Antonin Scalia, focuses on Justice Holmes’s decision for the Court in McBoyle v. United States.

Posner is wrong to accuse Garner & Scalia of misrepresenting this opinion as an application of ejusdem generis. But here are the relevant texts; you be the judge:

Garner & Scalia (pp. 199-200):

The ejusdem generis  canon applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics, as in dogscats, horses, cattle, and other animals. Does the phrase and other animals refer to wild animals as well as domesticated ones? What about a horsefly? What about protozoa? Are we to read other animals here as meaning other similar animals? The principle of ejusdem generis says just that: It implies the addition of similar after the word other.

* * *

Courts have applied the rule, which in English law dates back to 1596, to all sorts of syntactic constructions that have particularized lists followed by a broad, generic phrase. Today American courts apply the rule often. Some examples through the years:

* * *

“automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails”–held not to apply to an airplane. (FN: McBoyle v. United States, 283 U.S. 25, 26, 27 (1931) (per Holmes, J.)

Posner:

He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore.

Holmes, in McBoyle:

MR. JUSTICE HOLMES delivered the opinion of the Court.

The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years’ imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. 26*26 Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: “Sec. 2. That when used in this Act: (a) The term `motor vehicle’ shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both.”

Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word `vehicle’ in the phrase “any other self-propelled vehicle not designed for running on rails.” No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech `vehicle’ calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used “as a means of transportation on land.” And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words “any other self-propelled vehicle not designed for running on rails” still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. 27*27 It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.

Judgment reversed.

My Analysis: (more…)

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