Our friendship lasted over thirty years. Begun in somewhat a flippant manner it ripened into real affection. . . . I marveled at the extent and variety of his reading; it was a mental excitement for him to discourse about his books. He talked often far above my understanding, but I was an attentive listener and many of his words, that seemed to float upon the surface, have sunk into my deeper comprehension and borne fruit.63
On Holmes’s ninetieth birthday she wrote to him,
My very dear friend . . . what I admire most, perhaps because it comes more under my ken, is the beautiful serenity which surrounds you like a halo. Another quality which is so rare, because people often detach themselves from closer associations, is your faculty for intimate friendship, and what you have given me in this way for the last thirty years. I am deeply grateful.64
Holmes’s longtime friend Nina Gray, wife of his even older friend John Chipman Gray, professor at Harvard Law, carefully preserved the hundreds of letters he wrote her, often penciling a note on them describing their subject and content. On one she wrote: What a medley of a man!65
No friendship is without nuances of selfish motives, yet Holmes throughout his life had plenty of friends who were no sycophants or flatterers, and who also knew a thing or two about greatness. Dean Acheson late in his life said that no one he had met in his many years of public service touched Holmes, not even George Marshall whom he revered as an exemplar of “transfiguration through duty”; Holmes was “one of the immortals.” In 1960 a Harvard undergraduate sent Acheson a paper he had written about the justice, full of the superior wisdom of youth. Acheson replied:
One of the slipperiest words I know is “great.” But I think the “greatest” man I have ever known, that is, the essence of man living, man thinking, man baring himself to the lonely emptiness—or the reverse—of the universe, was Holmes. . . . Don’t patronize Holmes. . . . And, perhaps—only perhaps, throw your paper away and start over again.66
He was an elitist but never a snob; that too was something the war had done for him. He had no patience with pomposity or putting-on of social airs. When, in 1915, his nephew announced that he was thinking of volunteering for military training “as an example” to others, Holmes was enraged. “I told him if a son of mine talked about doing anything as an example, I would boot him out of my house.”67
“The army,” he explained to Laski, “taught me some great lessons”:
To be prepared for catastrophe—to endure being bored—and to know that however fine a fellow I thought myself in the usual routine there were other situations . . . in which I was inferior to men that I might have looked down upon had not experience taught me to look up.68
He never evinced any of the anti-Semitism or anti-Irish prejudices of many of his Boston circle (his own wife included). If he disparaged socialism as “humbug” and “drool” and social and economic equality as utopian nonsense, he was equally disdainful of the idle rich and their empty-headed pursuits: the “culture folks” who amassed works of art without understanding or appreciation; “the brute power of wealth” paraded by the New York plutocrats who decorated their Fifth Avenue mansions with ornate mantelpieces wrested from French chateaus; the society ladies who spent their days playing bridge and “going to a lunch with dresses costing $1000. I own I view such a manifestation with disinterested loathing.”69
The love he so plainly stirred in those who worked with him and for him for years is a testament that ought at least give pause to academics spouting Freudian theories about his “profound detachment” from his fellow man.70 The day in 1932 when Chief Justice Charles Evans Hughes called to gently tell him the time had come for him to resign, Holmes took the news stoically; it was Hughes, as he came down the stairs, and Holmes’s devoted housekeeper, Mary Donnellan, as she knelt before her ninety-year-old employer, whom his secretary H. Chapman Rose saw with tears “just streaming down” their faces.71
After Holmes’s death, Arthur Thomas, the last and longest-serving of the three African American messengers who had worked for him (they were employed by the Court but did everything from deliver mail to serve as valets and cooks for the justices), went every year to Arlington Cemetery on the anniversary of his death to lay flowers on his grave, and always placed a small notice in the Washington Star newspaper:
HOLMES, MR. JUSTICE OLIVER W.
An upright man, unpretentious gentleman and an impartial judge.
HIS MESSENGER ARTHUR A. THOMAS72
Holmes’s skepticism likewise deserves more sympathetic understanding than it has been treated with by his more virulently contemptuous academic detractors. Far from a manifestation of cynical immorality or bitter pessimism, Holmes’s skeptical view of life was the living soul of a tolerant, democratic, and restrained judicial philosophy.
If he disdained moralizing in the law it was because he knew from bitter experience—this was another lesson of the war—that moralists are the most dangerous of men, oblivious to the nuances of life in their certainty of their own virtue and rightness. “When you know that you know,” he said to Frederick Pollock, “persecution comes easy.”73 To Holmes, general principles were the enemy of the hard choices where true moral reckoning took place.
His favorite skeptical maxim could also have served as a statement of the ideal of judicial impartiality, of putting aside one’s own prejudiced assumptions and parochial loyalties, which Holmes far more than most actually attained in practice. “To have doubted one’s own first principles,” he said, “is the mark of a civilized man.”74
His philosophical skepticism was the force behind every one of his most important and enduring contributions, as scholar and judge, to the law. It was what convinced him to reject certainty in favor of tolerance in his revolutionary transformation of freedom of speech in America; in his demand that judges honestly lay bare their reasoning behind complex issues rather than hiding their prejudices with appeals to abstract rights; in the remarkable triumph of the ideas he set out, starting in The Common Law, that the law should be based on external standards of conduct rather than subjective moral judgments. Ideas that are now commonplace in the law, such as the “reasonable man” as a yardstick to determine fault and negligence, and the balancing tests that have supplanted rigid formulas in nearly every branch of the law, owe much to Holmes’s pioneering legal scholarship, all grounded in a philosophy of life in which skepticism was his abiding cautionary principle.
As for constitutional interpretation, Holmes would have snorted at the idea that the answers were to be found with nothing more than a dictionary and a literal reading of the words of the text, much less by divining what the Founders might have thought about the matter—as latter-day “textualists” and “originalists” are wont to assert. He would have been equally scornful of the contention that judges face a binary choice of “strict construction” or “judicial activism.” As Holmes frequently took pains to point out, most questions of constitutional law come down to claims of competing rights, which the Constitution itself cannot possibly settle; judges who purported to find certainty in the broadly worded precepts of the Constitution, he observed, were more guilty of imposing their personal political prejudices on the law than those who faced up to the duty to draw difficult lines in fashioning workable solutions. He trained his same skeptical eye on the Constitution that he trained on everything, and if that is one of his less successful legacies in our day—when left and right routinely invoke the Constitution as the trump card and final word of every partisan battle—it is more our loss than his failure.
For a constitution, cautioned Holmes, is not a set of “mathematical formulas”; it does not “divide fields of black and white”; it is not “the partisan of a particular set of ethical or economic opinions.”75
It is rather “a frame of government for men of opposite opinions and for the future.”76
CHAPTER 1
Dr. Holmes’s Boston
It is always difficult to have a famous father, but Dr. Oliver Wendell
Holmes was not just famous: he was the living symbol of his time and place—the Boston whose sense of social conscience, learning, and culture his son would carry “in his bones” long after that world of his youth had vanished.
In the words of Van Wyck Brooks, the ironic chronicler of New England’s rise and fall as the intellectual and literary mecca of America, Dr. Holmes “stood for Boston in its hour of triumph.”1 He was born in 1809, the same year as Lincoln and Darwin. In 1857, along with Emerson and other prominent Boston writers, he founded the Atlantic Monthly—and it was Dr. Holmes who came up with the name for the new journal that would place American letters on the world map, with Boston its capital.2 He composed hundreds of poems and three novels.
But it was the monthly installments in the Atlantic of his lighthearted monologues of the egotistical and talkative polymath known as “The Autocrat of the Breakfast Table” that made his reputation at home and abroad—as well as making the magazine an immediate and resounding success. “In his airy way,” wrote Brooks, “he had scattered freely . . . the ideas that had made his town a center of culture.”3
It was Dr. Holmes, too, who came up with the name “Boston Brahmin,” and who was the first to remark that Bostonians looked upon the State House on Beacon Hill as “the hub of the solar system.”4 That was meant as satirical commentary on his neighbors’ boundless sense of self-importance, but the city did his joke one better by adopting “The Hub” as its nickname, which endures to this day.
His choice of the term “Brahmin” was pointed. Today, a Boston Brahmin has come to mean just about any old-money Yankee blueblood, but that was not what Dr. Holmes meant. Like the priestly caste of India, his Brahmins were that distinctive local class of intellectuals and scholars—a “harmless, inoffensive, untitled aristocracy,” he called the New England version—that regarded itself as the hereditary guardians of culture and morals for society. Boston’s Brahmins had ties to wealth and power, but their authority was their own, one that rested on the deep reverence for learning that had marked the Bay Colony from the time of the Puritans’ arrival on its shores.
Dr. Holmes
That Boston in the first half of the nineteenth century was the center of culture and learning for the new republic was the subject of much wry comment, but no real dispute. “Boston folks are full of notions,” was what Rhode Islanders said; cartoonists for New York newspapers habitually depicted the city’s residents, even babes in the cradle, as squinting, bespectacled bookworms. Bret Harte, whose short stories featuring the rough characters of the California gold rush were the harbinger of a new kind of regional American writing, remarked on his first visit to the city that it was impossible to shoot in any direction on the street without bringing down a writer of two or three volumes. It was likewise said that a lady at a loss for conversation with a Boston man she had just been introduced to need only ask, “How is your book coming on?” to guarantee a copious flow of talk.5
An English visitor in 1857 wrote,
Boston is the great metropolis of lecturers, Unitarian preachers, and poets. . . . In walking along Washington Street, and meeting a gentlemanly-looking person with a decent coat and a clean shirt, the traveller may safely put him down as either a lecturer, a Unitarian minister, or a poet; possibly the man may be, Cerberus-like, all three at once. In Boston the onus lies upon every respectable person to prove that he has not written a sonnet, preached a sermon, or delivered a lecture.6
“Tomorrow night I appear for the first time before a Boston audience,” Mark Twain wrote his sister when a speaking tour took him to the city, “—4,000 critics.”7
It was easy to make fun of, and Bostonians usually tried to be the first to do so themselves, but no other community in the history of the world had done so much to spread the opportunities and benefits of education. The Massachusetts Constitution of 1780 devoted an entire section to a veritable paean to literature and learning:
Chapter V.
Section II. The Encouragement of Literature, etc.
Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humour, and all social affections, and generous sentiments among the people.
The “university at Cambridge” was, of course, Harvard, founded in 1638 as a seminary to train Congregational ministers and since become the lodestar in Boston’s cultural firmament. From its Georgian brick buildings in Harvard Yard radiated a passion for learning that reached towns and farms across New England; jokes from English travelers about an overabundance of lecturers aside, the lyceum was a fixture of towns large and small. There were a thousand throughout New England, and speakers as famous as Emerson regularly made the circuit. In 1839 one of the heirs to the Lowell family textile fortune left half his estate in trust to fund a series of free lectures for the public; each year as many as ten thousand people would apply for tickets to the Lowell Institute, to hear Emerson deliver a series of biographical sketches, the Harvard poet James Russell Lowell discuss literature and poetry, Yale’s Benjamin Silliman explain the latest discoveries in chemistry. Greek antiquities, the geography of Palestine, the steam engine—it didn’t matter; the hall was always full.8
Massachusetts was the first in the nation to offer free public schooling, in the 1820s; the first to establish normal schools for the training of teachers, in the 1830s; the first to make school attendance mandatory, in the 1850s. The rustic Yankee farmer or mechanic who spent his evenings in the lecture hall or working his way through Virgil’s Aeneid in Latin was a stock character in nineteenth-century New England, but he was drawn from life. Charles Eliot Norton, who taught art history at Harvard, related to Rudyard Kipling the time he had been driving in the countryside with a fellow professor. While stopped at a farmhouse to water his horse, Norton turned to his colleague and remarked, “According to Montaigne . . . ,” and proceeded to quote a passage. The stolid Yankee farmer, who had been silently holding a bucket for the horse, spoke up. “Tweren’t Montaigne,” he corrected the Harvard professor. “Twere Mon-tes-ki-ew.” (“And ’twas,” reported Kipling.)9
In one of his more serious moments, Dr. Holmes wrote that while Boston may be “full of crooked little streets,” it “has opened, and kept open, more turnpikes that lead straight to free thought and free speech and free deeds than any other city of live men or dead men.”10 There was no shortage of tangible proofs which the city could—and to every visitor, did—point to for the truth of that statement. Beginning in the early 1800s ideas and deeds had come together in the founding of an astonishing number of pioneering public institutions that gave tangible substance to the city’s lofty ambition to be the “Athens of America.”
That bold epithet had been bestowed by a member of one of the city’s many literary clubs—there was the Saturday Club, the Thursday Evening Club, the Anthology Society (which would become Boston’s famous Athenaeum)—that were “bursting with ideas,” in the words of Boston’s historian Thomas O’Connor. The clubs were one place where wealth and learning overlapped; merchants and industrialists, doctors and lawyers, clergymen and poets met for dinner and intellectual discussion, and not incidentally to reinvent the world. “Firmly convinced that what they were doing was extremely i
mportant,” wrote O’Connor, “they wanted everybody in America to know what they had to say about philosophy and religion, about the arts and the sciences, about what life and society should be like in the changing world of America.”11
Through a combination of private philanthropy and reform-minded governance, Boston’s civic and intellectual leaders put those thoughts into action. In 1810 two of the city’s physicians—one was Dr. James Jackson, who would be Dr. Holmes’s preceptor at Harvard Medical School, and whose niece he would marry—composed a circular letter to the city’s leading citizens. Appealing to them as the “treasurers of God’s bounty,” the doctors sought their support for a hospital that would serve the “whole family of man.” A door-to-door fundraising campaign supplemented what God’s trustees generously provided, and $100,000 was quickly raised to begin construction of the Massachusetts General Hospital. Fittingly, like the other new public institutions in the Athens of America, it was in the Greek Revival style, solid granite with massive Ionic columns and a domed roof. It was the first of its kind, a beautiful, modern hospital dedicated to alleviate the suffering of the poor. In 1846, the first operation using ether to render a patient unconscious took place there, one of many medical milestones that would take place within its walls. Dr. Holmes coined the word anesthesia to describe the revolutionary innovation.12
Josiah Quincy, Boston’s mayor from 1826 to 1828, instituted a series of high-minded yet thoroughly practical improvements in the health, safety, welfare, and beauty of the city, cleaning up the notoriously foul Town Dock and rerouting sewage outfalls to the more-distant mud flats; ordering the streets cleared of refuse (six thousand tons of it—he knew, because he had it weighed as it was collected); and building one of Boston’s most prominent Greek Revival monuments, the Faneuil Hall Market, known to Bostonians then and now as Quincy Market. With its colonnades and copper-clad elliptical dome, it resembled a temple to the gods more than a place to buy codfish and apples. The first sight to greet visitors as they approached the city’s waterfront from the sea, it was a dramatic statement of Boston’s vision of itself.13 And then—only in Boston—Quincy capped his six years as mayor by becoming president of Harvard the following year.
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