The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1930-03-12
The Grand Old Man of the Bench

Fate was unklnd TO Justice OIlVer WenOell OiIneS u
the federal supreme court, when he celebrated his eighty
ninth birthday Is the grand old man of American juris-
prudence, for destiny chose that day for striking down
one of his colleagues and also his former and recent
chief on the bench. MI. Justice Holmes merited a birth
day free of such a double pail. Years, er'ldltion' the
great legal constructions his keen and incisive mind has
fathered, his record as a citizen. his adventurous Civil
war service-yes, even the fact that he was the great
son of a great father, one of the novelties of heredity-
made the attainment of 80 years deserving OF a national
acclaim.
To MANY observers, especially those who know the law
and it's associated American traditions, Mr.. Justice
Holmes looms to the stature of the greatest legal MIND OF
all the high tribunals of America, the most eminent )urlst
of not only the United States supreme court but con-
ceivably ranking as such in a muster OF the world judi
cal leadership. There is a tendency in discussing him to
link his appraisal comparably with the tame OF Jonn
Marshall, as though he were a force in constitutional
Jurisprudence of the same precedent pioneering tcmpera-
ment and intellect.
Professional analysts are led by a study of his supreme
bench announcements to regard him as possessed OF
inspired concepts as to what is most salutary for the fu-
ture course of the government at this time OF twilight IN
the zone of states rights and federal encroachment. They
feel that the tendency is to carry the Marshall eXposi-
ton Of the constitution too far. but that Justice Holmes
not only is not Of those SO tending but is. In fact, a sta
bilizing force whose weight of authority would tend rath-
er to halt the questionable drift to excessive federal con-
centration and restore the true balance between TINS
trend and the old formula of states rights.
March Harper's contains a brilliant appraisal of MI.
Justice Holmes, written by Harold J. Laski. professor OF
political science at the University OF London. MI. Las.l
finds the greatness of Justice Holmes in the elasticity OF
his approach to the greater constitutional questions
which still continue to arise. He expounds upon a back
ground Of evolution, and his equations always carry the
terms Of changing conditions into the constitutional
problems, Mr.. Laski thinks. 1t is in this quality that he
is of the Marshall type of constitutional jurist. He
ceasalessly remembers says Mr.. Laski. that the con-
stitution is a road and not a gate The London analyst
continues:
"Ncr has he been willing to fasten the grip of nine
teenth-century individualism upon the activities Of the
federal government. He has seen the new administrative
possibilities make new law. He has recognized that the
problems of 120O00,000 people in the modern and posi-
tive state are not the problems OF the sparse and scat
tered communities in the America of Hamilton and JEFF
ferson. Where congress has thought what, on the evil
dence, a reasonable man might think, he has refused to
be outraged by the novelty or dismayed by the increase
in power. He has asked only for proof that the author
ity asked is one not denied by the constitution. He has
realized that the conception of statehood is not a dog
ma fixed eternally in 1887. but an elastic formula
shaped by the experiences OF mankind. His refusal to
make his own social philosophy the measure Of congress
sional action has not been the least force in this last
generation in making the constitution of the United
States compatible with the enlargement of American
life"
MI. Laski also says of Justice Holmes that since John
Marshall revealed to the American people what their
new constitution might imply, none has so clearly nodded
its texture as MI. Justice Holmes. He stands out in his
tory not merely as one of the two or three most signi-
ficant figures in the record, but, also, as one of the SUI
preme expositors of principles in the annals OF common
law. When, Is years ago, John Morley visited America,
he came back to affirm that in Mr.. Justice Holmes,
America possessed the greatest judge of the English
speaking world. Time reinforces that emphasis; for it
has made him a member of that supreme fellowship
which reaches back to the endless past in which men
sought a place for plan and order in human affairs.
Gaius is there, and Ulpian, Mansfield and D,Aguesseau,
Marshall and savigny and Maitland. I do not think
they will resent the company of MI. Justice Holmes"