Court Date
Yesterday was the 76th anniversay of Oliver Wendell Holmes' death. Tomorrow will be his 170th birthday. Not everyone agrees with his views--I have an old professor who wrote a book attacking him--but I think he was the best writer who ever sat on the Supreme Court. So let's celebrate with some of his famous lines:
General propositions do not decide concrete cases.
The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact.
Men must turn square corners when they deal with the Government.
Detached reflection cannot be demanded in the presence of an uplifted knife.
Eloquence may set fire to reason.
The power to tax is not the power to destroy while this Court sits.
The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.
State interference is an evil, where it cannot be shown to be a good.
To have doubted one's own first principles is the mark of a civilized man.
Our test of truth is a reference to either a present or an imagined future majority in favor of our view.
Even a dog distinguishes between being stumbled over and being kicked.
posted by LAGuy @ 12:02 AM
9 Comments:
SWMBCg says, "Tick, tock, tick, tock . . ."
Meanwhile, let's not forget, "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."
"Our test of truth is a reference to either a present or an imagined future majority in favor of our view."
I suppose this is the gist of the argument for not opposing gay marriage on the grounds that, although you currently consider it wrong, you see the way things are headed.
Any objection to polygamy, QG? Personally, I'm willing to limit marriage laws to traditional marriage. But supposing that limit is dead, what could possibly be the significance of marriage laws any longer? Why should the state play any role in the matter, and if it does, why limit that interest to any two people? Doesn't it essentially move the entire debate into general business regulation? And to the extent there is an interest in children that survives, what could possibly justify limiting that interest to any two people? Are we prepared to open child rearing and propagation of the species to corporate conduct? And I'm not being snarky. I think we are essentially at that point, and it has far more to do with biological technology than it does species-characteristic sexual practices and the pregnancies that have heretofore resulted.
SWMBCg
code word: hormat
Hormones and doormat?
I don't understand the Holmes quote re "test of truth" or QG's example (& I assume that SWMBCg views 'making sense' as a big government liberal conspiracy and avoids it at all costs)
Somebody parse the sentence or give me context me- I thought he is just saying that most people think everyone agrees with them as to what's right.
Maybe I'll have to read Weird Al's book on OWH
Are those scare quotes around "making sense" more Joey from Friends references?
I believe what he means by the test of truth is that it's determined in our society by what people believe, or accept in the marketplace of ideas, not some idealized, free-floating standard (like natural law) that some claim access to.
I've read Alschuler's book. It's a pretty harsh and relentless attack. I think it goes too far (and I've told him), plus many of the things he dislikes about Holmes I like. Still, there's no question that Holmes (or really anyone in the days before people started thinking straight like they do now) can be made to look bad by selective quoting--and often by fair quoting.
That seems an utterly meaningless distinction. Even if one rejects natural law, one still must have "access" to whatever the received wisdom is, else one is on the outs.
To claim the "truth" is based on what people believe, far from being meaningless, is part of a monumental argument that's been going on for quite a while, and a fairly unpopular stance among many, probably the majority.
Sure. But that's not what LAGuy writes. No matter which domain you are working in, trying to discover natural law, or trying to discover "what people believe" (as if), it's the same exercise. There's nobody to grade our bluebooks and tell us we got it right.
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