Holmes, Legal Realism, and Our Democratic Wish
Jason Siegelin | March 2021
(Clockwise from left) Justice Oliver Wendell Holmes Jr. (1924), coal miners in Omar, WV (1938),
New York City at night (1937), Franklin D. Roosevelt in Hudson, NY (1930)
he life of American constitutional jurisprudence has been, to understate the issue, messy, departing from the codified, scientific view of the law advocated by Christopher Columbus Langdell. This jurisprudence, in influencing the powers of the legislative and executive branches and thus the ensuing shape of society, is marked by differing interpretations of how best to apply that integral document we call the Constitution.
Justice Oliver Wendell Holmes Jr. once remarked, “The life of the law has not been logic; it has been experience… as [the law] embodies the story of a nation’s development through many centuries, the law finds its philosophy not in self-consistency, which it must always fail in so long as it continues to grow, but in history and the nature of human needs.” This statement is one embodying the tenets of legal realism, composed of a flexible, dynamic application of the law realizing that “no law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is applied.”1
Holmes’s statement reflects one side of a fundamental rift in this country’s constitutional jurisprudence and political development. We see this rift in our American jurisprudence through differing opinions as to how the law and Constitution must be applied to various situations. This split is seen through, on the one hand, more conservative, judicial supremacist, and “economic” court rulings under the Marshall Court, in the Gilded Age, and during the Lochner era, and, on the other hand, the more lenient, “social” court rulings characterizing the New Deal era and more fit for the industrial paradigm.
Our Constitutional Rift: A Legal History
Holmes’s approach to the law exists primarily within the broader context of American political development as an embodiment of legal realism, with its flexibility and deference to the variability of the human condition and asymmetries in economic power. I refer to this approach to the law as “social jurisprudence.” Yet this approach stands in contrast with another jurisprudence, comprising the sanctity of contract, property, work, and enterprise, which I refer to as “economic jurisprudence.”
Let’s first take a look at the roots of this economic jurisprudence, which proved fundamental in taming the rise of social jurisprudence prior to the New Deal. This philosophy, with its emphasis on contract and property, originated with the landmark Supreme Court case Fletcher v. Peck in 1810, decided by the Marshall Court. Upholding the validity of land contracts entered into between the state of Georgia and buyers of land, this decision “is the first clear precedent for the general proposition that the Supreme Court is empowered to hold state laws unconstitutional.”2 Fletcher therefore lays the ground for the striking down of economic regulations and the upholding of contract and property rights in the future, critical to economic jurisprudence and skepticized by Holmes’s view.
With this context of ground laying for economic jurisprudence in mind, such a philosophy is most vividly seen to be “economic” and at odds with Holmes’s realist philosophy in the pro-enterprise rulings of In re Jacobs and Lochner v. New York, wherein substantive due process was utilized to protect property and contract. In re Jacobs, an 1885 New York case, struck down a New York law forbidding the manufacture of cigars in tenement housing, claiming “The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property…” and that “Liberty… means the… right of one to use his faculties in all lawful ways, to live and work where he will…” This opinion stands in stark contrast to Holmes’s realist approach to the law, under which Judge Earl might have given more weight to the rational basis and public health considerations of the economic regulation at question, rather than immediately delving into Jacobs’ “liberty” of enterprise.
Lochner v. New York, a 1905 case, was decided out of the same spirit of deference to economic enterprise, finding a “general right to make a contract in relation to his business…” as “part of the liberty of the individual protected by the Fourteenth Amendment…”, another substantive due process argument. Holmes was opposed to such a lack of deference to the legislative police power, writing in his dissent, “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.” This economic jurisprudence observed under the Marshall Court and in Lochner era decisions, with its almost-exclusive emphasis on property and the right to contract through substantive due process, comprises the primary opponent of Holmes’s legal realism, standing at the other rim of this country’s jurisprudential rift and forcing economic rights into early-20th-century American political development.
In fundamental contrast to the aforementioned instances of economic jurisprudence, Holmes’s legal realism is manifest extensively in constitutional law following the Lochner era and shaping American political development in the 20th and 21st centuries. One of the earlier cases in which Holmes’s ideology finds itself on display is MacPherson v. Buick Motor Co., decided in 1916, which ruled that manufacturers owe “a duty of care and vigilance” to “persons other than the purchaser” of a good, in this case consumers of cars from a car dealership, extending to the manufacturer a responsibility for injury resulting from product safety defects. This decision is representative of legal realism, symbolic of the courts’ emerging deference to the public welfare, with which Holmes would agree.
Additionally, in direct contradiction with the courts’ prior deference to contract and property stands West Coast Hotel Co. v. Parrish, a 1937 case upholding the constitutionality of a Washington state minimum wage law for women on the grounds that “the health of women and their protection from unscrupulous and overreaching employers” is part of the “public interest,” warranting use of the state’s police powers to set a minimum wage. This decision directly clashes with economic jurisprudence in its recognition of freedom of contract as a “qualified, and not an absolute, right,” undermining the substantive due process argument for the liberty of contract expressed in Lochner and coinciding with Holmes’s legal realism, rooted in the “human needs” of an industrial society.
Another such case, and a case critical in nailing shut the coffin of economic jurisprudence, is United States v. Carolene Products, which held that the constitutionality of economic regulations must be presumed as long as such regulations rest “upon some rational basis…” This case and its famous Footnote Four effectively disqualify economic regulations from strict judicial scrutiny, marking a fundamental shift away from the economic jurisprudence of the Lochner era and paving the way for the legal realism of the Warren Court several decades later. This coincides with Holmes’s flexible philosophy, deferent to the legislature regarding “human needs.” In both West Coast Hotel and Carolene Products, we observe the emergence of the police power, rooted in the Tenth Amendment, as a conduit for social and economic legislation. One might even argue that Holmes’s legal realism is most manifest in judicial deference to the legislative police power, resulting in economic regulations that, under stricter scrutiny as in Lochner, may not have been held as constitutional.
Holmes and The Democratic Wish
There is a deeper significance to Holmes’s view of the “the life of the law” in the realm of American political development, extending beyond the text of realist court decisions and into the realm of our collective political culture. This jurisprudential ideology is tied, at a fundamental level, to James Morone’s “democratic wish,” comprised of direct citizen participation in politics and a responsive, active government impartial to private interests.3
Such a striving for democratic representation and governmental responsiveness is well-documented. Writing on the emergence of republicanism at the country’s Founding in The American Revolution: A History, Gordon Wood mentions, “If republics were to have order, it would have to come from below, from the people themselves…”4 The democratic wish, with its emphasis on governmental responsiveness to human need, is even found in Thomas Jefferson’s conception of departmentalism when he writes, “These are examples of my position that each of the three departments has equally the right to decide for itself what is its duty under the constitution…”5 Such a viewpoint expresses the desire for greater legislative responsiveness, unimpeded by judicial supremacy and thus reflective of the democratic wish. This coincides with William Manning’s statement that “It is the bisness and duty of the Lejeslative Body to determine what is Justis or what is Right & Rong…”6
Such democratic rhetoric is all linked to Holmes’s statement that “the law finds its philosophy… in history and the nature of human needs,” in that such needs are realized democratically by the legislature, the branch of government theoretically most responsive to the economic and social needs of the people. Charging against judicial obstacles to “human needs”-based economic regulation, Holmes’s philosophy is thus supportive of Morone’s democratic wish. Holmes’s view enables the federal government to be more responsive to the needs of American citizens, without judicial impediments, effectively bringing to life Morone’s democratic wish and the republican ideals expressed by Wood, Jefferson, and Manning.
This increasing realization of the democratic wish, facilitated by Holmes’s ideology, is no abstract concept: it has shaped American public life, for better or worse, as seen through the New Deal’s “constitutive commitments,” a term coined by Cass Sunstein in his book The Second Bill of Rights, ranging from Social Security to union rights to anti-discrimination laws.7 Catering to the new array of social issues produced by industrialization and the Great Depression, President Franklin Delano Roosevelt’s hypothetical Second Bill of Rights, including the rights to work, education, and “adequate food, clothing, shelter, and medical care” reflect Holmes’s emphasis on the law’s relation to “the nature of human needs.”8 As such, Roosevelt’s initiatives stood in fundamental opposition to economic jurisprudence and judicial supremacy, as these institutions often blocked economic regulations geared toward what were perceived as human needs. Legal realism, shared by both Holmes and Roosevelt and manifest in Nebbia v. New York, West Coast Hotel, and other cases, was thus influential in sparking the creation of public programs under the New Deal, including the Works Progress Administration, the National Labor Relations Board, and the Social Security Administration.
It is crucial to note that this increasing realization of Morone’s democratic wish under the New Deal would not have occurred to such an extent had the judiciary maintained its economic jurisprudence from the Lochner era and even its emphasis on judicial supremacy and the sanctity of contract under the Marshall Court. Here we see the American constitutional system’s fundamental rift emerge once again, with economic jurisprudence inhibiting the democratic wish, a wish made manifest by social jurisprudence in keeping with Holmes’s ideology. The two philosophies, economic and social, are pitted against each other, an opposition that acutely shaped economic regulation and political development during the Lochner and New Deal eras. From this, we see how Holmes’s statement on the ongoing “life of the law” is at the core of the increasing American realization of direct democracy and governmental accountability, further standing at odds with the economic jurisprudence of the judiciary’s earlier days and shaping the experiences of millions of Americans.
The State of the Democratic Wish During the Pandemic
Now, perhaps more than ever, is an appropriate time to assess the state of the democratic wish and how effectively the aspirations of Holmes and Morone have been realized.
As a result of the COVID-19 pandemic, millions have been unemployed for months, the decline in social capital has been exacerbated due to the pernicious state- and self-imposed restrictions on social interaction, and deterioration of mental health is a pressing issue. In some ways, our time is reminiscent of that during the Great Depression, at least economically.
Perhaps the most notable difference in the constitutional landscape between now and the New Deal era, however, is the fact that the judiciary appears to be the branch that is most reflective of the democratic wish, as opposed to the legislature and especially the executive. More thoroughly put, it appears that, due to the unilateral, potentially undemocratic nature of state executive orders intended to curtail the spread of the virus, the judiciary seems to be the primary vehicle through which the democratic wish is expressed. We observe this through recent court rulings involving (1) religious liberties and (2) small business owners.
Religious liberties and the First Amendment form the first realm of jurisprudence through which we have recently observed the judiciary as a vehicle for governmental responsiveness and the democratic wish. A case with significant popularity decided in November of 2020 was Roman Catholic Diocese of Brooklyn v. Cuomo. The Court’s majority opined that the State of New York’s draconian restrictions on attendance in churches and synagogues violated the “minimum requirement of neutrality” for regulations involving religion, a test with origins stretching as far back as the landmark 1971 case Lemon v. Kurtzman. The majority opined, “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” Specifically, the New York regulation under question labeled areas surrounding clusters of COVID-19 cases as “red” zones, in which worship service attendance was capped at 10 individuals, while “essential” secular businesses in the same zones were permitted to let in an unlimited number of individuals. Thus we see the Court as a vehicle for the democratic wish, lifting inequitable barriers to worship and enabling individuals to practice religion in a manner conducive to spiritual fulfillment.
Another similar recent case is South Bay United Pentecostal Church v. Newsom, decided in February of 2021, in which the Court found that California’s ban on “any kind of indoor worship” was unconstitutional. Due to California’s disparate regulatory treatment of religious services, the Court approached the issue through the lens of strict scrutiny to more effectively satisfy the spiritual necessities of the Californian populace, enhancing governmental accountability and the democratic wish.
Recent, though few, rulings upholding various freedoms for small business owners represent the other major realm wherein we see the courts as a vehicle for more effectively achieving the democratic wish. Consider the case WMC v. Evers, in which Wisconsin Manufacturers & Commerce, a business organization, sued the State of Wisconsin in order to prevent the state from releasing the names of small businesses having an employee who tested positive for COVID-19. Governor Tony Evers’ unilateral attempts to enact this policy last year were blocked by the Waukesha County Circuit Court, another instance in which the judiciary, acting to protect the state’s 1.2 million small business employees, acted as a vehicle for popular condemnation of executive power and thus as a vehicle for the democratic wish as well.
In another ruling, which has since been voided, in July of 2020, Judge Michael McHaney, of the Clayton County Circuit Court in Illinois, effectively struck down Illinois Governor J.B. Pritzker’s “stay at home order,” which restricted citizen movement and stifled small business growth. Again such a ruling is reflective of the democratic wish and government responsiveness in that it worked, at least temporarily, in the favor of the 45.1% of Illinois workers employed by a small business in providing them with more avenues for wage labor.
Though the courts are by no means perfectly consistent in generating these pro-religion and pro-small-business rulings, it is clear that, during the pandemic, the role of the courts has proven much more expressive of the democratic wish than expected. This is particularly the case when we observe that state executives, with their passage of draconian orders justified by the police power, appear to be trampling on the religious and economic freedoms of Americans.
If there is anything to take away from these large-picture, broad-sweeping analyses of historical and present jurisprudence, it is certainly that Holmes was correct in remarking that “the life of the law has not been logic; it has been experience…” But on a more granular level of analysis, it is clear that ours is a constitutional jurisprudence demarcated by a constant tug of war between “economic” and “social” forces, with the latter being more related to the legislative efforts and thus expressive of Morone’s democratic wish. Nonetheless, it is interesting to apply this distinction to our own time, observing that the democratic wish is interestingly being propped up most extensively through activist court decisions. Holmes, pandemics, and the judicial tug of war aside, it is clear that the American legal story is one that, with fits and starts, might someday arrive at that destination we call Democracy.