Andres Yoder


There is no obvious way to reconcile each of Justice Oliver Wendell Holmes, Jr.'s intellectual sides. There is the monstrous Holmes, who thought the world was meaningless, insignificant, and hopelessly violent. There is the tender Holmes, who jealously guarded the time he could spend enjoying literature, philosophy, and art. And there is the scholarly Holmes, who left behind a litany of influential judicial opinions and articles, as well as a classic book, The Common Law.

Although the gulfs between each of Holmes's sides can make reconstructing his thought seem daunting, the task is amenable to a fairly simple solution: Holmes leavened his dismal worldview with a sense of self that allowed him to think of life as valuable, and with a theory of cooperative combinations that opened the door to a better future. Using his famous dissent in Lochner v. New York as a case study, it becomes possible to see how Holmes built his constitutional jurisprudence from these basic premises.

Perhaps surprisingly, a close investigation of Holmes's Lochner dissent reveals that his worldview, his theory of combinations, and his sense of self led him to reject the doctrine of judicial supremacy.



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