Saturday, May 16, 2009

Oliver Wendell Holmes, Supreme Court Justice

I had intended to post a short biography of Oliver Wendell Holmes (1841-1935), whose name inevitably pops up when Supreme Court justices are being discussed. He’s widely regarded as one of the greatest Supreme Court justices, and he served one of the longest terms (1902-1932). I found, however, that I couldn't stomach the man enough to spend time writing about him. You'll probably do better listening to Thomas Bowden's lecture on him. I did collect some interesting quotes that aren’t easily accessible on the Net, and that I think are worth sharing before I ditch my notes.

Holmes’s earliest claim to fame was The Common Law, published in 1881 and enormously influential. In it, he proposed a new way of looking at law. This excerpt from the first page of the first chapter is very explicit about Holmes’s belief that there is no such thing as law based on principles.

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” (Emphasis added; from the Project Gutenberg edition)

Those familiar with the philosophy of Pragmatism will recognize here its basic premises: that there are no fixed standards of truth, and what’s right is what works at any given time. I was surprised to read that Holmes’s instrumental definition of law (i.e., that law is that which courts do) was already apparent in an article Holmes published in 1870. That would make it precede by a year or two Holmes's participation in the Metaphysical Club, where C.S. Peirce and William James are generally considered to have founded Pragmatism (see Novick, Honorable Justice p. 426, n. 4). Whatever the sequence, Holmes’s premises were certainly consistent with Pragmatism by the time The Common Law was published.

And they remained consistent with it. In Gompers v. United States (1914), writing as a Supreme Court justice, Holmes again stated that laws change depending on their time and context:

The provisions of the Constitution are not mathematical formulas … they are organic living institutions transplanted from English soil. Their significance is vital, nor formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. (quoted in Novick, ANB)

What if the laws are badly written or wrongly interpreted? Here Holmes’s comment to a fellow lawyer, John W. Davis, on the Sherman Antitrust Act:

Of course I know and every other sensible man knows, that the Sherman law is damned nonsense, but if my country wants to go to hell, I am here to help it. (quoted in Abraham, p. 160)

And, finally, here’s an excerpt from Holmes’s speech “The Soldier’s Faith,” given to Harvard’s graduating class in 1895. Theodore Roosevelt reportedly exclaimed, “By Jove, that speech of Holmes’s was fine,” and Roosevelt’s memory of it was apparently a factor in his decision to nominate Holmes for the Supreme Court in 1902. (See Novick, Honorable Justice p. 206.)

I’m happy to say that every soldier I’ve known would reject this view with furious indignation.

Behind every scheme to make the world over, lies the question, What kind of world do you want? The ideals of the past for men have been drawn from war, as those for women have been drawn from motherhood. For all our prophecies, I doubt if we are ready to give up our inheritance. … [W]ho of us could endure a world, although cut up into five-acre lots, and having no man upon it who was not well fed and well housed, without the divine folly of honor, without the senseless passion for knowledge outreaching the flaming bounds of the possible, without ideals the essence of which is that they can never be achieved? I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.


Suggested Readings by Ayn Rand and Objectivist Scholars

  • Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
  • Bowden, Thomas. “Oliver Wendell Holmes, Destroyer of American Law.” Available from the Ayn Rand Bookstore.
  • On Pragmatism, see “Pragmatism” in The Ayn Rand Lexicon (ed. Harry Binswanger) and Tara Smith, “The Menace of Pragmatism,” in The Objective Standard 3:3 (Fall 2008).
  • See also the references cited for Wanted: Supreme Court Justice.


Sources Consulted

  • Abraham, Henry J. Justices and Presidents. A Political History of Appointments to the Supreme Court. 3rd. ed. New York: Oxford University Press, 1992.
  • Novick, Sheldon M. Honorable Justice: The Life of Oliver Wendell Holmes. 1989.
  • Novick, Sheldon M. "Holmes, Oliver Wendell";; American National Biography Online Feb. 2000. Access Date: Mon May 04 2009 10:27:59 GMT-0400 (Eastern Daylight Time)

A Government Not of Laws, But of Empathy

For the upcoming vacancy on the Supreme Court, President Obama has announced that he will seek “somebody with a sharp and independent mind and a record of excellence and integrity.” But he also wants his nominee to be

someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. [emphasis added]

This is not a surprise: in The Audacity of Hope, Obama said that the capacity to understand others is “at the heart of my moral code.”

Obama cited as an example of a Supreme Court case where empathy would have been appropriate Ledbetter v. Goodyear, a wage-discrimination case. In 2007, the Supreme Court reversed a lower court’s ruling in favor of Ledbetter because she filed her suit after the statute of limitations had expired.

I failed to think immediately of a pithy but scathing comment on this, and Sal disapproves of me gnashing my teeth for too long. So I sent the idea of empathy as a requirement for a Supreme Court justice down to my subconscious to percolate. (Thank you, Jean.) And presently my subconscious said: What happened to a "government of laws, not men"? Isn't that in the Constitution?

In fact, it's not. John Adams, the second president of the United States, seems to have been the first American to advocate “a government of laws, not of men.” Adams rose to national prominence and became one of the most influential Founding Fathers because he was thoroughly versed in the history of law and was able to explain clearly how a proper government ought to function. His summary of his thoughts on this matter, Thoughts on Government, Applicable to the Present State of the American Colonies, was written in May 1776 at the request of his fellow delegates to the Continental Congress.

[Recent happenings] will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.

In Thoughts on Government, Adams set out a plan for a separation of powers, including an executive branch, a bicameral legislature, and an independent judiciary. Of the judiciary, he wrote:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.

Many of the earliest state constitutions show the influence of Adams’s Thoughts on Government. The Massachusetts Constitution (1780), for example, established a balance of powers in which the executive and legislative powers were required to keep strictly to their own domains, and “the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The United States Constitution, drafted in 1787, echoes Adams’s Thoughts regarding the tenure of justices:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Article III, section 1)

The Constitution sets out no qualifications for justices of the Supreme Court, and only one requirement. According to Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

This brings us back to Obama’s possible nominees, and whether empathy is a necessary or desirable trait in a Supreme Court justice.

What would showing empathy mean, for a Supreme Court justice? It would mean that he could rule according to his emotions, if he thought the law was harming someone who deserved better. It would mean that he could hold his emotions above the Constitution that he had sworn to uphold. It would mean that at his whim, he could overturn even a clearly written law that conformed with the Constitution in every respect.

In his professional role, a justice should be passionate about the Constitution he is sworn to uphold. But with respect to the particular people who come before him, he should be heartless. His feelings about them are not a proper standard of judgment. If we allow kindness a foothold, we also allow malice. If we allow either one, we have a government not of laws, but of men, and (as John Adams would surely have recognized) it does not matter whether the man is a king, a tyrant, or a judge.

If a person goes about his life and business on the assumption that by obeying the law, he will have the protection of the courts – then if a dispute arises, he must have his day in court, and a judge must decide if he is in the right, in strict accordance with the law.

The only alternative in a rational society is for parties who have a working arrangement to agree to binding arbitration in case of disputes. In that case, disputes are settled by an impartial outsider who may or may not act in strict accordance with the law. From arbiter, the Latin name for this impartial outsider, English derives the word “arbitrary,” which has come to mean random, capricious, or erratic. A Supreme Court judge who acted on empathy rather than strictly upholding the law would be acting arbitrarily. In doing so, he would make long-range planning of one’s personal or business life impossible. One would never know what action might be declared illegal, simply because a judge felt sorry for the person on the other side of the dispute.

President Obama lectured on constitutional law at the University of Chicago for eleven years. He has no excuse for not knowing that a judge who acts on empathy is violating the principles he swore to uphold.


Recommended Readings from Ayn Rand and Objectivist Scholars

  • Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
  • See also the recommended readings for Wanted: Supreme Court Justice.

 Sources Consulted


Thursday, May 7, 2009

WANTED: Supreme Court Justice

Thank you for applying to become a member of the Supreme Court of the United States. If you've made it this far in the selection process, you have a record of personal integrity and professional competence. However, since this is a crucial leadership position and we expect you to be holding it for the rest of your life, we'd like to know more about your convictions and your philosophy. If we like what we hear, we'll call you to Washington for an interview.

1. What rights, privileges, or freedoms do American citizens have that you would want to protect in your Supreme Court rulings? The rights listed in the Bill of Rights? Those in Franklin D. Roosevelt's Four Freedoms speech? Those in the United Nations Declaration of Human Rights? Please elaborate by citing your rulings on such matters as free speech / censorship, property rights / eminent domain, abortion, and the Second and Ninth Amendments.

2. Are these rights, privileges, and/or freedoms immutable?  Tell us where you think they come from and what would make it acceptable for Congress or the Supreme Court to override them.

3. What is your belief about the nature of the Constitution? Is it an ever-evolving document whose interpretation should be based on the will of the people? Is it to be interpreted strictly according to the perceived intention of the Founding Fathers? Is it based on timeless principles that ought to be understood and applied to the present, or is it a historic document whose outmoded ideas need to be revamped as time goes by?

Bonus question: Oliver Wendell Holmes was one of America's most influential Supreme Court justices. Tell us what you think of the opinions he wrote for the Court.

Suggested readings by Objectivist scholars

Tara Smith, "The Need for an Active Supreme Court Justice." Op-ed.

Tara Smith, "How 'Activist' Should Judges Be?" (CD of a lecture), available at the Ayn Rand Bookstore

Thomas Bowden, "Supreme Disappointments." Op-ed.

Thomas Bowden, "Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Case." Op-ed.

Thomas Bowden, "Oliver Wendell Holmes" (CD of a lecture), available at the Ayn Rand Bookstore.

Saturday, May 2, 2009

Cuba & the U.S. (11 of 11): Why Cuba will probably not improve its relations with the U.S. too much; references

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: Efficient dictators always make sure they have an enemy to distract their subjects.

Having said all this, I don’t think Cuba under the Castros will ever normalize relations with the U.S. For dictators such as Hitler, Stalin, and Fidel, there is an advantage to having their subjects paranoid about foreigners. The foreigners serve as the focus of hatred and fear, distracting the dictator’s subjects from the causes and effects of unbearable conditions at home. If the subjects had too much time to think about their situation, they might just decide to rebel against the dictator.

Statism—in fact and in principle—is nothing more than gang rule. A dictatorship is a gang devoted to looting the effort of the productive citizens of its own country. When a statist ruler exhausts his own country’s economy, he attacks his neighbors. It is his only means of postponing internal collapse and prolonging his rule. A country that violates the rights of its own citizens, will not respect the rights of its neighbors. Those who do not recognize individual rights, will not recognize the rights of nations: a nation is only a number of individuals.

Statism needs war; a free country does not. (Ayn Rand, “The Roots of War”)

To the Castro brothers, the United States has been a godsend: an enemy who is nearby, powerful, and yet exceptionally unlikely to invade the country, unless it suffers a massive attack first. Fidel and Raul Castro may try to get more money via trade or aid, but they will never welcome the U.S. as a friend.


Suggested Readings by Ayn Rand and Objectivist Scholars

Rand, Ayn. “The Cuban Crisis,” “How to Demoralize a Nation,” and “The Munich of World War III?” The Ayn Rand Column. 1991.

Rand, Ayn. “The Roots of War.” The Objectivist, June 1966; reprinted in Capitalism: The Unknown Ideal (Signet, 1986).

Schwartz, Peter. The Foreign Policy of Self-Interest: A Moral Ideal for America. 2004.


Sources Consulted

Aside from the speeches referred to in the text, see:

CIA World Factbook for Cuba: (accessed 4/27/09)

“Organization of American States” in Wikipedia.

Parmet, Herbert S. "Kennedy, John Fitzgerald"; ; American National Biography Online Feb. 2000. Access Date: Wed May 21 08:43:15 EDT 2008

Paterson, Thomas G. "Cuban Missile Crisis"; ;
The Oxford Companion to United States History, Paul Boyer, ed., 2001. Access Date: Wed May 21 08:41:58 EDT 2008

U.S. State Department, Background Report on Cuba: (dated 8/08, accessed 4/27/09)


Scholarly Sources Recommended by the Above

Blight, James, et alCuba on the Brink. 1993.

Chang, Laurence, and Peter Kornbluth, eds. The Cuban Missile Crisis, 1962. 1992.

Fursenko, Aleksandr, and Timothy Naftali. One Hell of a Gamble: Khrushchev, Castro, and Kennedy, 1958-1964. 1997.

Gleijeses, Piero. “Ships in the Night: The CIA, the White House, and the Bay of Pigs.” Journal of Latin American Studies 27 (Feb. 1995): 1-42.

Nathan, James, ed. The Cuban Missile Crisis Revisited. 1992.

Paterson, Thomas G. Contesting Castro: The United States and the Triumph of the Cuban Revolution. 1994.

White, Mark J. Missiles in Cuba: Khrushchev, Castro, and the 1962 Crisis. 1997. 

Cuba & the U.S. (10 of 11): Why would Cuba consider closer relations with the U.S.?

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  Improved relations with the U.S. would give Cuba more hard currency and the prestige of having “forced” the U.S. to back off a long-standing policy.

Socialist policies lead to weak economies. Increased trade with the U.S. would bring Cuba much-needed hard currency. Easing the restrictions on remittances would have the same effect, except that the Cuban government would not need to produce any goods in exchange. Remittances are estimated at $600 million to $1 billion per year, even though President Bush reduced the maximum permissible amount from $3,000 to $300. The government takes 10% of the remittance amount when converting it to pesos. If the dollars are spent in “dollar stores,” the prices of goods are often at least doubled. Again, the extra money goes to the government.

On a moral level, getting concessions from the United States would give Cuba the chance to boast of having made the United States back off. The Castro brothers are certain to put this spin on any rapprochement between the U.S. and Cuba. If Cuba is reinstated as a full participant in the Organization of American States, the same spin will be applied.

Cuba & the U.S. (9 of 11): Philosophical Principles re Foreign Relations with Cuba

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: Cuba should be treated as an enemy because it has consistently and for decades espoused principles that are opposed to those of the United States, and has repeatedly threatened U.S. citizens and expropriated their property.

When Hugo Chavez of Venezuela harangued President Obama about the Bay of Pigs, Obama replied that he was only three months old at the time. In a press conference 4/19/2009, Obama said that he wanted Cubans to see that “we’re not dug in into policies that were formulated before I was born.” But as Santayana said, “Those who do not learn from history are condemned to repeat it,” and there are several important lessons to be learned from Cuban-American relations.

The first question to ask is: What is proper U.S. foreign policy with respect to any nation? In The Foreign Policy of Self-Interest: A Moral Ideal for America, Peter Schwartz stated the principle of a proper foreign policy:

In her system of ethics, Ayn Rand presented not only a validation of self-interest as man’s moral purpose, but also an analysis of what man’s self-interest entails. She demonstrated that one’s self-interest is achieved, not by “instinct” or by whim, but by acting in accord with the factual requirements of man’s life, which means: by living as a rational being. Since the concept of self-interest pertains fundamentally to the individual, the idea of a nations’ self-interest refers only to the political precondition of a person’s living rationally in a social setting, which means: freedom. Without freedom, man cannot pursue the values his life demands. Just as in ethics it is maintaining his own life that should be the individual’s ultimate purpose, in politics it is maintaining its own citizens’ liberty that should be the government’s ultimate purpose. … Freedom is the end to which all other political actions are the means. (p. 13-14)

Lenin (d. 1924), the first dictator of Soviet Russia, stated that “The capitalists will sell us the rope with which we will hang them.” The U.S. does indeed have a very bad record of trading with our sworn enemies: all too often, we have bartered long-term security for the sake of short-term trade. We sold food to Soviets, who then used their meager income to build weapons. We trained and armed  Islamic fundamentalists in Afghanistan, who defeated the Soviets and then turned their training and weapons on the country they had always called the “Great Satan.”

Schwartz describes the proper course of action toward nations that do not value freedom, and that threaten the freedom of Americans:

“Engagement” with our enemies does not make them into friends; it only makes them into stronger enemies. It provides them with the moral sanction they do not deserve and with the material support they could not have generated themselves. “Engagement” with the Soviets sustained them for over half a century; engagement with North Korea has enabled it now to brandish nuclear weapons against us.

The appropriate foreign policy toward such nations is the opposite of engagement: ostracism. Let these nations stand—or, more accurately, fall—on their own. We should stop sanctioning our own destroyers. We should stop helping them pretend they are moral, civilized nations. If they threaten us, the only message they merit is the same one that any domestic ciminial ought to receive from the police: drop your weapons or you will be overwhelmed by force. (ibid., p. 59)

The primary goal of American foreign policy should be to protect the lives, liberty, and property of American citizens. This takes precedence over trade, because one must be alive and free in order to trade. When we trade with Cuba, we fill the coffers of a recognized state sponsor of terrorism. It is likely that American dollars sent there as remittances or as payment for goods will work their way into terrorist pockets, with the approval of the Cuban government. In fact, given their hatred of the U.S. and all it stands for, there is no reason Cuba would not purchase nuclear missiles from North Korea or Iran and aim them at the U.S., as the Soviets tried to do in 1962.

We have an embargo on trade with Cuba not only because they have an ideology diametrically opposed to ours: we disagree with many countries with whom we don’t have trade embargoes. We have an embargo with Cuba because the present government thinks the U.S. is evil, and because Cuba is (yes, even after 50 years!) still a mere 90 miles away, and hence close enough to pose a serious danger for attacks by missiles or by naval forces. It would be extraordinarily short-sighted to help pay for the weapons with which our enemies can destroy us.

Cuba & the U.S. (8 of 11): Cuban Foreign Relations

If you prefer, you can read the whole Cuba report as a PDF by clicking here

.Summary:  Cuba’s friends are other totalitarian dictatorships and other communist or socialist nations. Raul Castro and the Cuban Constitution both condemn the United States.

One of the delights of Facebook is being able to check what friends you have in common before accepting a new friend. Who are Cuba’s friends, now that the Soviet Union is gone?

In a speech of 12/2/2006, Raul Castro referred to his “president and brother, Hugo Chavez,” the socialist dictator of Venezuela. As mentioned above, Chavez signed an agreement with Fidel by which Venezuela provides Cuba with heavily subsidized oil in return for goods and services.

In a speech of 7/26/2007, Castro mentioned “our brothers in Venezuela, Bolivia and Nicaragua, and our solid ties to China and Vietnam.” China recently invested $500 million in Cuba. In the same speech, Raul mentioned the Movement of Non-Aligned Countries, whose past presidents include Tito of Yugoslavia, Mugabe of Zimbabwe, and Fidel Castro of Cuba. Other members of the Movement include North Korea, Iran, Iraq, Vietnam, Syria, and Sudan. (Am I the only one who thinks their logo of a globe surmounted by an olive branch looks like a grenade?)

On the State Department’s list of state sponsors of terrorism, right there beside Iran, Syria and Sudan, is Cuba. It maintains relations with several guerrilla and terrorist groups and provides refuge for some of their members.

How does Raul Castro feel about the U.S.? In a speech of 12/2/2006, he noted that “the U.S. government, in the opportunistic manner characteristic of them, have stepped up their hostility and aggressiveness against Cuba to an unprecedented high, in the hope of economically suffocating the country and overthrowing the revolution by intensifying their subversive acts.” He refers to “Washington’s multimillion-dollar campaigns of disinformation, the blackmail and brazen interference.” In a speech of 7/26/2007, he refers to “3,478 victims of terrorist acts directly organized, supported or allowed to happen by the United States authorities,” and states that “There has been not one minute of truce in the face of the politics of the United States government, aimed at destroying the Revolution.” He describes the U.S. trade embargo as a “blockade” that “constitutes a relentless war against our people.” In a speech of 1/1/2009, he refers to the “unhealthy and vindictive hatred” of the U.S., and calls it “aggressive, treacherous and dominant.” In short, his attitude has not changed over the past few years, and indeed, one would not expect it to, given that the Cuban Constitution refers explicitly to “Yankee imperialism” (Preamble).

What points is Raul Castro willing to negotiate about? Back on 12/2/2006 Raul Castro publicly stated, “We take this opportunity to once again state that we are willing to resolve at the negotiating table the longstanding dispute between the United States and Cuba, of course, provided they accept, as we have previously said, our condition as a country that will not tolerate any blemishes on its independence, and as long as said resolution is based on the principles of equality, reciprocity, non-interference and mutual respect.”

That means: “We’ll accept your money and goods, but do not make any demands in return.”