The Dissenting Opinions of Mr. Justice Holmes

[Vanguard Press, $4.50]
ONLY lawyers and litigants usually care to read what judges write, but this book is literature. To find a judge in this country or England whose power over thoughts and words is comparable to that of Holmes, we must go back to Bacon. These opinions recall the Essays in their epigrammatic quality, their constant search for general ideas to illuminate concrete facts. But even Bacon could not write about law so as to interest the layman. Holmes took with him upon the bench the philosophic interest which made him the friend of William James, and a prose style which his own father might have enjoyed but could not equal.
Burke characterized the religion of the northern American colonies as ‘the dissidence of dissent.’ It is only natural that Mr. Justice Holmes should have this in his blood. Like his ancestors who settled New England, he will not be silent just because he is in the minority. The forceful expression of a lost cause may bring its ultimate victory in thoughtful minds. It is much to be regretted that such independence has now disappeared from the state court over which he once presided, and that dissenting opinions almost never occur in the Supreme Judicial Court of Massachusetts.
Yet Mr. Justice Holmes is far more than a dissenting judge. His majority opinions much outnumber the dissents, and they must be read together to understand his constructive views of the application of law and the Constitution to twentieth-century problems. This book would have been better if it had made a selection among all his judicial writings, instead of relegating to the rear a few majority opinions and a collection of snippets from others, and if it had not been limited to his work on the Lnited States Supreme Court. This, however, is the first collection of Holmes’s opinions for the general rentier, and it was a job well worth doing.
What will the layman gain from reading Mr. Justice Holmes? First, the intellectual pleasure given by a thinker who knows how to use words for the expression of general ideas. ‘A word is not a crystal, transparent and unchanged; it is t lie skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’ ‘The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign that can be identified.’
Secondly, several opinions deal with important legal questions of literature and art. Does a motion-picture play of Ben Hur infringe the copyright of the novel? When a composer’s music is played in restaurants, may he get royalties on the ground that it is performed ‘for profit although no admission fee is charged? Justice Holmes remarks: ‘It is true that music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation . . . give a luxurious pleasure not to be had from eating a silent meal. If music did not pay it would be given up.’ May New York law limit the extortions of theatre-ticket agencies? ‘It seems to me that theatres are as much devoted to public use as anything well can be. We have not that respect for art that is one of the glories of France. But to many people the superfluous is the necessary, and it seems to me that government does not go beyond its sphere in attempting to make life livable for them. ’
Still more important is the discussion of economic problems. When a state limits the power of an employer to enjoin boycotts which injure his business, is this unconstitutionally depriving him of ‘property’? ‘Delusive exactness is a source of fallacy throughout the law. By calling a business “property" you make it seem like land. . . . But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct and like other conduct is subject to substantial modification.’ May a state require that stockholders in drugstore corporations shall be licensed pharmacists? ‘A standing criticism of the use of corporations in business is that it causes such business to be owned by people who do not know anything about it.’ May the manufacturer of a patent medicine like Peruna fix the prices to be charged for it by his wholesale and retail dealers? Holmes’s dissent (unfortunately omitted from this collection) believes it better to leave trade alone. ’ There may be necessaries that sooner or later must be dealt with like short rations in a shipwreck, but they are not Dr. Miles’s medicines.’
Since the Harding administration the decisions of the Supreme Court have become increasingly favorable to the protection of business and wealth against new forms of social legislation. At times the majority of the court seems to be exercising the functions of the English House of Lords before 1910, which was free to overturn the action of the people’s representatives merely because it disapproved of the particular measure. Again and again Holmes has vainly protested that a law is not unconstitutional just because the judges disagree with it. The Constitution was meant to bound the legislature, not to bind it. The court is likely to meet the fate of the House of Lords in the Parliament Act if the present trend of decisions continues. Holmes and his dissenting associates have shown the course which the court might to pursue. Outworn economic doctrines and personal preferences cannot be crystallized forever into constitutional law.
Finally, these opinions emphasize the value of toleration. Trial anil error must be permitted as the means of progress. The states should not be prevented from making social experiments within their own borders, even if the resulting legislation differs much from that generally in force. The most important principle of the Constitution is ‘the principle of free thought — not free thought for those who agree with us, but freedom for the thought which we hate.’
Elsewhere Mr. Justice Holmes has said that the life of the law is not logic but experience. This book gives the general reader the opportunity to watch tlie experience of our own time filtering through the mind of a great lawyer and a great writer.