The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-03-12
Liberal Viewpoint
BY DIR. HARRY ELMER BARNES

lG-8Y DR.. HARRY ELMER BARNES
TT is probably no exaygeration to say that the
i late Justice Oliver Wendell Holmes was &C
| corded a degree Of respect and veneration dur
ing his lifetime not bestowed upon any other
American since George Washington.
At the time CT his assassination, Abraham
Lincoln commanded no such popular esteem.
The Lincoln legend has been created since 1865
Holmes has received his appropriate and just
public appraisal here and now.
I would be the last person to attempt to take
away an iota Of the lustre which attaches to
Justice Holmes personality and reputation. But
do believe that he deserves the admiration and
affection Of his coIntrymen for reasons some
what different than those usually advanced.
In the minds of most of those who have given
the matter specific attention, Justice Holmes
was revered primarily oil the ground that he was
a uniquely great, original and liberal jurist.
He was believed to be the father Of the social
point of view in law, of sociological jurispru-
dence of law as the instrument Of social pro-
gress. He was thought OF as professional
dissenter on our highest tribunal, rebel in the
court. who is close TO being a legal revoutionist
! These estimates do not stand up so well
under careful analysis. Adam Ferguson, who
published his historical contribution to Jurls-
prudence and social evolution 1853 years ago, had
as broad and precise as social point OF view IN
law as Justice Holmes. The Austrian Jurlst ana
sociologist, Ludwig Gumplowicz went far deep
I
! of law forty years ago.
JUSTICE HOLMES recoiled at such Bourbon
J ism and insane individualsm as that illus
trated by the Lochner case Con bakery labor
conditions) in New York state and recognized
that the days of Jefersonlan lalSSez talre had
naseed away in an era of machines, factories and
industrial cities. But Jeremy Bentnam VINO
died in 1892 went far beyond Holmes in his
notions of legislation an emergency OF social
nrooress while the Socialistic Jur1StS OF emln-
ence who followed Marx made Holmes seem
rugged indvidualist" by comparison.
Justice Holmes possessed Soclal-ln otner
words. a civliized-outlook in the legal world
hut he never went very deeply into the matter OF
linking UP law with sociology and the social
Sciences after the fashion Of Judge Cardozo
Dean Pound or the Johns Hopkins Institute OF
Law. ..- rro,....
ov1ornded urbane and modern notions of law
rom the Supreme Court bench which caused
the excitement and CONSERVATION. The contrast
between such cultivated views ana tlose Oh Cle
ex-corporation attorneys VINO constituted HoSC
Of his colleagues was striking ana oIaila'io III
deed. ~, e.o+a
likewise in the guse of diSSenter, the tactS
belia the popular conception Of Justice Homes
He was SO often in agreement With MS colleagueS
that his dissent was the exception raCner Illdil
the rule , ;4,, bic
colleagues he was in harmony with them at least
ten times. Only once in his long career on the
bench did he stand alone in dissent record
already attained by Justice Cardozo IN MS prleI
| tenure.
JUSTICE HOLMES was gentleman, schol-
J. ar and humanitarian. Such man was
hound to dissent occasionally in sharp ana
dramatic manner when elementary justice was
being manhandled in too notorious 1aShlon
through the malign fundamentally OF que
process" ,.,.-,.-. 81, 49,.
Even Justice Holmes usual liberalism did not
fare too we'll, however, in cases which ran
counter to mis- own prejudices He fell down
very badly in the free speech cases during war
time.
Justice Holmes once reminded his colleagues
that the Fourteenth Amendment did not reao
Herbert Spencer's Social States into the Con-
stitution but during the World War he talleo on
his own part to reflect that neither did 1t reao
/ into the Constitution the mot to reason why
sentiments CT Sparta or Prussia.
In short Justice Holmes deserves all the
respect and admiration which his feiioW-cltlzenS
have showered upon him. but he deserves these
/ things more as a great character a mature
scholar and an urbane gentleman than he Goes
as a uniquely original progressive or daring
! jurist.
Justice Holmes father was great doctor, OUT
! he is recalled today mainly as cultivated gen
tleman of great charm and wit. Justice Holmes
was a great judge, but it is not unlikely ChaV
he will be remembered for much the same
traits as those which are today attributed to his
! equally illustrious father.