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Darwin’s legal legacy: Justice O.W. Holmes

Ellis Washington - 9/1/2011

To Holmes law was simply an embodiment of the ends and purposes of a society at a given point in its history.

~ G. Edward White

The law does not attempt to see men as God sees them.
~ Justice Oliver Wendell Holmes


When Jonah Goldberg wrote in his 2007 book, “Liberal Fascism: The Secret History of the American Left from Mussolini to the Politics of Meaning,” about the existential religious and intellectual discrimination in the law today, he used as his principle figure Harvard professor, Laurence Tribe. Goldberg wrote that, “Laurence Tribe, America's leading liberal constitutional lawyer, argued in the Harvard Law Review in 1978 that religious views were inherently superstitious and hence less legitimate than ‘secular’ ones.”

This diabolical idea of systematically disenfranchising Christian’s constitutional rights and belittling America’s original Judeo-Christian worldview isn’t unique to Professor Tribe nor to history, but in modern times these ideas have an historical link to one of the greatest icons of liberal and progressive jurisprudence—Oliver Wendell Holmes, Jr. (1841-1935).

Exclaiming a Darwinian evolutionary zeitgeist typical of the Progressive Age, Holmes remarked in a 1926 letter to John C. H. Wu:

I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or to a grain of sand. I believe that our personality is a cosmic ganglion; just as when certain rays meet and cross there is white light at the meeting point, but the rays go on after the meeting as they did before, so, when certain other streams of energy cross at the meeting point, the cosmic ganglion can frame a syllogism. or wag its tail.

In an earlier article, “I remember Allan Bloom” I wrote about the virtual cult status and totalizing scope of Holmes jurisprudence on today’s academics, lawyers, judges, politicians, legislators, intellectuals and radical groups on the left: “The influence of Holmes on the law, courts and society is universal. For example, academics like Carl Becker's historicism/relativism and Charles Beard, whose Marxist zeitgeist and materialistic model of class conflict acknowledged Holmes' social Darwinist ideas. Together these men influenced generations of American academics and historians like Richard Hofstadter, psychologists and educators like John Dewey, scientists, intellectuals, judges (Richard Posner, Ginsburg, Breyer), lawyers (L. Tribe, C. Sunstein), politicians and virtually all of today's leftist pressure groups, as they are in some way indebted to the ideas of Justice Oliver Wendell Holmes.”

Legal scholar, G. Edward White, in his pathbreaking 1976 book, “The American Judicial Tradition,” wrote of this iconic jurist: To Holmes law was simply an embodiment of the ends and purposes of a society at a given point in its history. Oliver Wendell Holmes, was a Supreme Court Justice from 1902-32. To demonstrate how omnipresent the cult of progressivism was at the turn of the twentieth century, it wasn’t a Democrat who appointed Holmes to the Supreme Court, but the venerated Republican, Theodore Roosevelt (1901-09), America’s first progressive president, the man whose image stands astride for the ages at Mt. Rushmore… It was this man (whom incidentally I would replace with Reagan’s likeness at Mt. Rushmore) who in 1902 appointed Holmes to our nation’s highest Court and virtually all the republicans went along with this travesty of justice.

To this day the Supreme Court hasn’t been right since that appointment 109 years ago where five of the nine sitting Justices on the Supreme Court trace their judicial legacy directly to Justice Holmes.

By 1900, after 40 years of society being utterly beguiled and infected with the pseudo-scientific lies and sophistic propaganda of Darwin, Marx and Nietzsche, the few dissenting voices of reason were ignored or like today’s Tea Party movement, ridiculed as anti-scientific, hatemongers or right-wing, conservative extremists. When Holmes wrote in his 1881 progressive cult classic, “The Common Law,” that “The life of law has not been logic; it has been experience," Professor G. Edward White interpreted “Justice Holmes' use of the word ‘logic’ to mean the formalistic, religion-based logic that reasoned downward syllogistically from assumed truths about the universe; the proposed counter-system was ‘experience,’ the changing ‘felt necessities’ that reflected current social values and were altered by time and circumstances…” Leftist academics like Tribe refer to this idea as a “living constitution” derivative of America’s second progressive president, Woodrow Wilson (1913-21).
Between 1870-1935 Holmes, was the key figure who helped transform American culture away from reliance on the founders who believed in transcendent principles based on God, the Bible and natural law to the vague world of randomness, meaninglessness and evolving standards of Darwinian evolution as the basis of all American laws. The entire progressive movement beginning in the 1870s and 1880s was predicated on Darwinism, humanism and relativism. In a famous 1886 essay Nietzsche proclaimed that, “God is dead”; the progressive revolution presided over God’s funeral… or so they thought. 100 years later in 1990, Judge Richard A. Posner affirmed his relativism and atheism triumphantly characterizing Justice Holmes as “The American Nietzsche.”
Nevertheless, I like to remember the words of MLK who said, “Truth crushed to the earth will rise again.” MLK, whose Chinese artist, Lei Yixin, paradoxically created a Mao-like statute of him which is stern, flat, rigid and derivative of socialist realism, will be formally dedicated at the Mall in Washington, D.C. in September or October. MLK’s words will live on for the ages and gives me comfort that Darwin’s theory of evolution, as well as all of the legislation of Congress, academic disciplines and atheistic, relativistic philosophies based upon evolution including the legal philosophy of Justice O.W. Holmes, will one day be exposed as one of the biggest frauds in the history of humanity.
Pick any grand liberal, humanist, progressive, or socialist policy over the past 100 years—Theodore Roosevelt’s “Square Deal,” Woodrow Wilson’s “Statolatry” (state worship), FDR “New Deal” policies of the 1930s and 40s, Truman’s “Fair Deal,” LBJ’s “Great Society of the 1960s or President Obama’s neo-socialist, Keynesian policies of today; despite all of them being disastrous and ruining the lives of tens of millions of American citizens, they completely enshrine Holmes’ Darwinian thinking, his evolutionary jurisprudence and his virulently irrational, anti-Christian bias on society, culture and law.