Monday, March 12, 2018

Kang on Holmes and Maniliness

Forgive me--or, better yet, inform us all with a comment--if I’ve missed some of the literature, but I’ve been wondering when someone would return to the history of masculinity and the history of the legal profession since Michael Grossberg’s landmark essay, which I relied on so heavily in a chapter in Lawyers against Labor on an anti-labor lawyer ten years Holmes’s junior.  Now comes Oliver Wendell Holmes and Fixations of Manliness (Routlege), by John M. Kang, St. Thomas University School of Law:
Major Oliver Wendell Holmes, Jr. (LC)
Oliver Wendell Holmes, Jr. has been, and continues to be, praised as America’s greatest judge and he is widely considered to have done more than anyone else to breathe life into the Constitution’s right of free speech, probably the most crucial right for democracy. One indeed finds among professors of constitutional law and federal judges the widespread belief that the scope of the First Amendment owes much of its incredible expansion over the last sixty years to Holmes’s judicial dissents in Abrams and Gitlow.

John M. Kang offers the novel thesis that Holmes’s dissenting opinions in Abrams and Gitlow drew in part from a normative worldview structured by an idiosyncratic manliness, a manliness which was itself rooted in physical courage. In making this argument, Kang seeks to show how Holmes’s justification for the right of speech was a bid to proffer a philosophical commentary about the demands of democracy.
TOC after the jump.
Chapter One: The Father and the Hero
Chapter Two: A Collegiate Manliness
Chapter Three: Reasons for Fighting in the War
Chapter Four: The Experience of War: "A Splendid Carelessness for Life"
Chapter Five: Faith through Fire
Chapter Six: The Famous Cases: Abrams and Gitlow
Chapter 7: Holmes’s Change of Mind
Chapter 8: Gender and Citizenship


Shag from Brookline said...

Perhaps Holmes' "manliness" in his dissents in Abrams and Gitlow resulted from his examination of his "patriotism" in his earlier Schenck opinion the facts of which did not involve yelling fire in a crowded theatre but merely handing out pamphlets on public streets.

But Holmes showed his manliness after serving in the Civil War, attending HLS and embarking on a legal career. There was a patriotic fervor in the nation at the time of Schenck. As I recall, by the time of Abrams, the Great war had ended. Perhaps Holmes might have shown more "manliness" in his Agrams dissent if he had referenced doubles about his opinion in Schenk.

Overall, however, Holmes made great contributions to the law over a long career.

Henry said...

Schenck and Abrams were both decided in 1919, after the war ended--Schenck on March 3, and Abrams on November 10. World War I ended November 11, 1918,