Thursday, July 14, 2016

Kang on Holmes's Martial Manliness

John M. Kang, St. Thomas University School of Law, has posted Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness, which will appear in the West Virginia Law Review 118 (2016): 1067-1129,
OWH in uniform, 1861 (wiki)
In order for constitutional democracy to endure, Americans must be tough, must be manly—and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War.

Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.