Skip to main content

tv   Dred Scott and the Supreme Court  CSPAN  December 27, 2014 5:09am-6:14am EST

5:09 am
publication of an anonymous 68-page pamphlet entitled "the unjust judge: a memorial of roger brook taney." like the "atlantic" article, the pamphlet accused taney of the worst abuses of judicial power and asserted that the dred scott opinion alone would shape taney's reputation. much of the pamphlet argued that the framers had been anti-slavery in their outlook and that the constitution embodied the spirit of the declaration of independence, particularly its assertion that all men were created equal. the author of the unjust judge took particular satisfaction in showing how early in his career taney viewed slavery as incompatible with the declaration, a position that he had later turned his back on in dred scott. and it is true that, as a young
5:10 am
lawyer in frederick county, maryland, taney had defended jacob gruber, an anti-slavery methodist minister accused of disturbing the peace and inciting rebellion. and in the process, taney had cited the declaration of independence in support of his anti-slavery views and had actually called slavery "a blot on our national character." the author of "the unjust judge" made much of this type of change of heart, describing taney as failing to live up to his early ideals as well as those of the nation's founders. in hid analysis, he said that african-americans, contrary to taney's assertion, had been
5:11 am
included in the political community at the time of the founding. but more than an academic criticism of taney's reasoning in the dred scott came in t, "t unjust judge" constituted a rhetorical assault on the character of the nation's fifth chief justice. the author excoriated taney as a malevolent old man engaged in the most nefarious of purposes, a man has untrue to the principles of the christian religion as he was to the ideals of the constitution. in his perversion of the law and
5:12 am
of judgment among men." the evolution in the response from the republican republicans was cleared from being hooted down the page of history to being condemned to hell for the decision, to being worse than the worst judge in the history of the english-speaking world, to being next to pontius pilate, the worst to ever occupy the seat of judgment among men. the rush of union victory and the triumph of emancipation made taney appear by comparison to be on the wrong side of history, to
5:13 am
be an abuser of power, and even a force for evil. so what does this say about america at the end of 1864 and the early 1865? i think it tells us three things. first, it tells us that by the time of his death taney had come to embody the slave power, the entrenched pro-slavery interests that the union was attempting to defeat. the "they have no rights" language of dred scott, the
5:14 am
union's adoption of a policy of emancipation, and tan eye's attem attempts to ford the lincoln administration turned taney into a highly visible public enemy. by 1864, it was clear that tapey stood for the rights of slave holders, for no rights for black people, and he stood opposed to lincoln's efforts to prosecute the war. in the north there may have been no greater symbol of the south and all that it stood for than chief justice taney. second, it tells us that these really were revolutionary times. it is striking that in a nation that had so valued its institutions, its founders, its constitution, and its court system for decades, that one of
5:15 am
its most distinguished and longest serving justices, my experience so rapid a fall in the minds of the northern public. in 1864 and 1865, many northerners really did see themselves as bringing about a profound revolutionary break with their past, a past symbolized by the aging pro-slavery taney. it is not easy for 21st century americans who know that it would take a civil rights movement to bring about further change to understand the swift and revolutionary pace of events during the civil war. it is often our tendency to read history backwards rather than forwards to say from our perspective that the war didn't really change much. but when we look closely at what
5:16 am
contemporaries said at the time of taney's death, we can see that the rapid down first of all of the chief justice's reputation speaks to the depth of the revolutionary events and aspirations of the day. slavery, a 250-year-old institution on north american soil, went down to defeat on the battlefield of the civil war, and along wit its most prominent judicial defender. these were revolutionary times. third and finally, the story of taney's rapidly declining reputation reveals something about black agency and activism, about the extent to which african-americans shaped the times. now, of course the fact of war was the driving force in
5:17 am
bringing about emancipation, but it was african-americans themselves who were fleeing to federal military lines. it was african-americans who always focused on the rights portion of the dred scott decision, who always drew their inspiration from the "all men are created equal" language of the declaration of independence, and who always pushed the debate forward to emancipation, yes, but beyond to the rights of black people in the republic. the arguments of white, radical republicans like sumner, wade, ellis, and stevens owed a great deal to blacks' decades-long attempts to push the declaration of independence to the forefront of american political discourse. thus, it was african-americans who helped to bring about a
5:18 am
fundamental shift in american notion of rights, from the rights that taney had discussed in dred scott, the rights of slave holders, to the rights of enslaved persons. taney had relied on the fifth amendment of the constitution to emphasize the rights of property. but african-americans looked to the declaration of independence to champion the rights of all human beings. the passing of taney, the revolutionary times was probably most evident in a truly historic event on february 1st, 1865, less than four months after taney's death, a month before
5:19 am
lincoln's second inauguration, and 2 1/2 months before lee's surrender at appomattox. on that day sh, john s. rock of massachusetts, whom i mentioned earlier, became the first african-american to gain admission to the bar of the united states supreme court when he was admitted to practice by the new chief justice, sammon p. chase. new orleans tribune, a black newspaper, took note. with pride, the newspaper reported that rock would be practicing where previously -- and listen how they put it -- "the infamous taney sat enthroned, decreeing that a colored man has no rights that the white man is bound to respect." it was indeed a new era.
5:20 am
thank you. [ applause ] you've been watching c-span's american history tv. we want to hear from you. follow us on twitter @c-spanhistory, connect with us on facebook and facebook.com/c panhistory, or you can leave comments too. and check out our upcoming prams at our website, c-span.org/history. and we'd like to tell you about some of our other american history tv programs. join us every saturday at 6:00 p.m. and 10:00 p.m. eastern for a special look at the civil war. we'll bring you to the battlefields.
5:21 am
we'll let you hear from skol lars and reenactors and bring you the latest historical forums on the subject nap's programs on the civil war every saturday 6:00 p.m. and 10:00 p.m. eastern on american history tv on c-spa c-span3. oliver wendell holmes jr. served in the union army from 1861 to 1864, and he was wounded three times in battle. next a panel of scholars looks at the impact of the civil war on the life of the future supreme court justice, including how his time as a soldier shaped his law career. the supreme court historical society hosted this hour-long discussion. >> good evening, everyone, and welcome to the supreme court. it's great to see so many people here for the supreme court historical society's second lecture of the 2014 leon silverman lecture series.
5:22 am
the society was formed in 1974 by chief justice warren berger with the notion of promoting public understanding of the history of the court. and it does that in many ways, through lectures like these, through the publication three times a year of the journal of supreme court history, and through the acquisition of portraits of the justices for display in the supreme court building. i'd also like to especially thank the society for its efforts to assist my predeces r predecessor, bill suter, and the curator's office in obtaining the port raraits of all prior 1 clerks of the court, which have now been obtained for the court. and on behalf of all the officers of the court, i'd like to thank the society for all of the efforts they give to all of us. this evening we're joined by three distinguished scholars for discussion, the civil war and its impact on justice oliver
5:23 am
wendell holmes. the moderator will be professor brad snyder, assistant professor of law at the university of wisconsin law school. he's the author of "well-paid slave: curt flood's fight for free agency in professional sports," and he's currently at work on "the house of truth" about felix frankfurter, walter lipman, and other progressives who lived in a dupont circle row house and formed a political salon in the 19-teens. he's written extensionively in law review articles about justice holmes. tonight's panelists are james mcpherson and g. edward white. professor mcpherson is the george henry davis 86 professor emeritus of united states history at princeton university. he is a noted and award-winning civil war historian. his book, "the struggle for equality," was awarded the wolf award in 1965, and his book "battle cry of freedom" received the pulitzer prize in 1988.
5:24 am
he's twice received the lincoln prize, the first time in 1998 for his book "for cause and comrades," and again in 2009 for "tried by war: abraham lincoln as commander in chief." professor white is the david and mary harrison distinguished professor of law at my alma q mater, university of virginia law school. he's the author of 16 books including "oliver wendell holmes, sage of the supreme court," "law and american history volume 1" from the colonial years through the civil war, and "the marshall court" and served as a law clerk to chief justice earl warren. i could heap more ak lalds upon all of the panelists tonight, but that would just cut into our time for discussion of justice holmes. so weather that, professor snyder, i turn the floor over to you. >> thank you so much. thanks so much for having us here. i'm delighted to have these two
5:25 am
master historians here. i'm going to try to just get out of the way and let them be the stars that they are. oliver wendell holmes enduring fascination to lawyers and kons tus nal historians both historians of civil war and historians of the supreme court, and part of that was the huge impact of the civil war on his jurisprudence, his life, and his world view. first we'll have professor mcpherson speak about the civil war then professor white speak about professor holmes. professor mcpherson, the floor is yours. [ applause ] >> dpeeng, everybody. i'm looking forward to this discussion. everyone who knows something about oliver wendell holmes jr. is familiar with the famous passage from his memorial day address in keane, new hampshire, in 1884.
5:26 am
"through our great good fortune," said holmes on that occasion, "in our youth, our hearts were touched with fire. it was given us to learn at the outset that life is a profound and passionate thing. we have seen with our own eyes beyond and above the fields the snowy heights of honor, and it is for us to bear the report to those who come after us." is fire that touched holmes' heart was, of course, his service in the civil war two decades before he delivered this speech. at the age of 20, in 1861, holmes had been commissioned first lieutenant in the 20th massachusetts volunteer infantry. he rose to captain in this regiment, one of the best in the army of the potomac, and one that suffered the fourth highest number of combat deaths in the entire army. holmes twice came close to being
5:27 am
numbered among those dead. from serious wounds he received at the battle of balls bluff in october of 1861 and at antietam in september of 1862. his third wound, a piece of shrapnel in his heel at the battle of chancellorsville in may 1863, appeared less serious at first but required the longest period of convalescence before he could return so to his regiment in -- well, actually to the sixth corps in march 1864. but then he had transferred to staff duty with general horatio wright. a safer post than as a line officer in an infantry regiment but one that proved more exhausting and dangerous than he had anticipated. on one occasion, he was almost captured. at the end of his three years' enlistment, holmes mustered out in july 1864 and enrolled at
5:28 am
harvard law school. holmes' youth but therefore certainly touched with fire. and his experience in the war did, indeed, teach him that life was profound and passionate thing that could come to an end at any moment. as it happened, however, he lived another 72 years after the third of his civil war wounds. during those 72 years, he alluded to his war experiences on several occasions in conversations with friends but rarely in public. in fact, his memorial day address in 1884 was his first public reference to the war since shortly after he had been mustered out 20 years earlier. thousands of books appeared about the civil war during holmes' lifetime, but he read almost none of them.
5:29 am
he did not join any of the veterans' organizations like the grand army of the republic or the loyal legion of the united states or the 20th massachusetts veterans organization. he did not attend any of the many reunions of soldiers who wore the blue that took place during the postwar decades. he showed little passion or activism toward the issues of nationalism and freedom that had motivated his enlistment in 1861 and for which he had perilled his life for three years. during his time as a student at harvard college from 1857 to 1861, holmes had been an abolitionist. he was a distant cousin of wendell phillips, one of the most militant of boston abolitioni abolitionists. holmes' best friend in college was norwood penrose hollowell, a
5:30 am
fervent ablolitionist from a philadelphia quaker family. holmes and hollowell formed part of the bodyguard in the winter of 1860-1861. they enlisted together in the 20th massachusetts after graduating from harvard when hollowell's anti-slavery convictions trumped his quaker pacifism. in february 1863, hollowell accepted a commission as lieutenant colonel in the new 54th massachusetts infantry, the first black regiment officially organized in the fourth inorth. he tried to persuade holmes to take a commission as a major in this regiment where together they could help advance the cause of abolition and equal rights. holmes was not interested. hollowell went on to fight in the 54th, to command another
5:31 am
black regiment, to work on behalf of black rights for the rest of his life, and helped found the naacp 45 years after the end of the civil war. while holmes showed little, if any, interest in this cause. holmes and hollowell drifted apart over the years, and holmes' circle of close friends during those years included few civil war veterans. if holmes' heart was touched with fire in the early 1860s, the fire appeared to have flickered and gone out in later years. or maybe not. perhaps the flame of commitment to a cause with a capital "c" had been transmuted into a commitment to a cluster of values described by such words as duty, honor, professionalism. holmes hinted at such a
5:32 am
transmutation, and his next reference to the civil war, 11 years after his memorial day address, when he spoke about the soldiers' faith at a ceremony at harvard to award him an honorary degree in 1895. i do not know what is true, he said on that occasion. "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, 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 kind of campaign of which he has no notion, under tactics of which he does not see the use.
5:33 am
." now, the point oop soop not whether holmes was right about the soldiers' lack of understanding. i think that most civil war soldiers did understand the cause for which they fought and had some understanding of strategy and tactics. the point is that holmes now admired the soldiers' faith not in an ideological cause but in duty and honor. by 1863, midway through his civil war service, holmes' closest friend in the army, his true model, if you, will was no longer hollowell but henry abbott, who was actually a year younger than holmes. abbott's ideological convictions were 180 degrees contrary to those of hollowell and initially to those of holmes himself. abbott was a democrat, almost a copperhead, who was contemptuous of abolitionists, blacks,
5:34 am
republicans, and abraham lincoln. yet holmes struck up a friendship with abbott that turned into admiration for abbott's extraordinary courage and cool professionalism under fire. abbott was a superb soldier, the best one in an outstanding regiment, whose death commanding the regiment at the age of 22 in the battle of the wilderness profoundly affected holmes. according to louis minand, and i think he's right, the example of abbott convinced holmes that nobility of character consists in doing one's job with indifference to ends, and, to rate the professionalism of a soldier higher than the may or may notes of any particular cause, or to return to holmes' own words, the highest value is that which leads a soldier to throw away his life and
5:35 am
obedience to blindly accepted duty, it's beyond my competence to evaluate holmes' judicial philosophy or to trace any kind of direct relationship between his civil war experience and his decisions as a justice on the massachusetts and then on the united states supreme court. but i think i can see a connection between the evolution of his mind-set as a soldier from idealism to pragmatism, a connection between that and the famous sentence, first sentence, in his book, "the common law." "the life of the law has not been logic. it has been experience." many of his decisions and dissents on the supreme court, as i understand it, reflected this pragmatism, reflected a willingness to allow state legislatures or congress to
5:36 am
experiment with legislation that might or might not accomplish its purpose but should not be declared unconstitutional just because it may have violated some principle or precedent. as a justice, he could not conveniently be categorized as a liberal or a conservative. he did not really believe in the efficacy of many reform efforts by the progressives, but he did believe in allowing them to make the effort. he was skeptical of some aspects of the new deal but convinced of the necessity to do something. when president franklin d. roosevelt spoke with holmes four days after his inauguration in 1933, roosevelt asked holmes if he had any advice for dealing with the crisis facing the country. "in your opinion a war, mr. president," holmes is quoted as replying. "i was in a war too.
5:37 am
and in a way there is only one rule -- form your battalions and fight." [ applause ] >> well, it's nice for me to be here as well. look forward to the discussion that follows. i think james mcpherson has done an excellent summary of holmes' civil war experiences, and i'm not going to repeat that. i do want to, houwever, suggest that the cumulative experience of the war for holmes left him with considerable ambivalence. first of all, he mustered out
5:38 am
when his initial term of enlistment expired, and he did that after considerable soul searching. indeed, as late as month before he made the decision, he had written a letter to charles elliott norton talking about how he had been inspired by an account that norton had given of the crusaders, and he likened the participation in the war to a crusade on behalf of the whole civilized world, and then ended the letter by saying that he planned to reup, "it will not do to live palestine yet." but at the time he wrote the letter, he was to face the last of a series of harrowing experiences. chancellorsville and wilderness campaigns where the, as he put
5:39 am
it one time in a reminiscence, the bodies of men lay six feet deep piled up in corpses as he rode his horse on a walk as he put it through the line. and finally, he comes to the realization that he just can't go back because, among other things, if he does go back, he's not going to be able to go back as an aide and a position that kept him largely out of the line of fire, but back into his infantry unit. and as he says to his mother, i'm waiving promotion and i'm going to -- not going to reenlist. the sufficient reason is that i can no longer endure the horrors of the line. and he said, i know i can face a
5:40 am
thing coolly when it's my duty, but war demoralizes me as it would any nervous man. so he left, and he left with a fair amount of guilt. his comrades and friends like abbott had died, and he had survived, and he had left before the war ended. so i think one of the reasons that he doesn't participate in any of the ceremonies, any of the veterans ceremonies, any of the occasions making a formal remembrance of the war, is that feeling of ambivalence. and i also think that that's the source of a kind of r
5:41 am
romanticization where there was a crusade where he remembers the splendid carelessness of the soldier has in throwing his life away for a cause that he doesn't necessarily understand. at the same time, there's a good deal of private prild that holm holmes takes having been in the war. holmes in his late years, after he goes on to the court and after about the first decade of his service when he realizes he can do the work in a comparatively short time and yet it's a collegial body, so he has to kind of wait for his colleagues to catch up with him, holmes would -- the court conferenced on saturdays during
5:42 am
holmes' tenure, basically 1902-1931. the assignments or the opinions would be dealt out after the conference on saturday. holmes would take his assignment home and produce an opinion approximately by tuesday. he would then ask the chief justice if he could do another one. he would volunteer to do opinions that other justices were struggling with. chief justices had to rein him in pause of these tendencies. so, not being able to do the full amount of work that he would have desired, he turned to literature and he turned to writing correspondence, and in some of this correspondence with some of his intimate friends, he will note the anniversaries of his war wounds for particular battles. when he died and the contents of
5:43 am
his house were surveyed, two items turned up. one of them was in a bedside table and it was in a little typeny case containing two bullets. and there was a little memorandum next to the bullets saying these are bullets which are taken from me in the civil war. in the closet in his bedroom were two uniforms, and two of the uniforms were pinned. these are the uniforms i wore in the civil war. this is my blood spattered on them. so there's a kind of secret pride in participating but there's also an awkward memory,
5:44 am
which i think explains why he tends to emphasize in hi casualties of the civil war this soldierly ethos that professor mcpherson has alluded to. this is mi whooi he admires abbott, and his admiration for abbott is the other side of some self-loathing. he recognizes in the war that -- and he writes about this. he says, one of the things i learned in the war was that just because i was perhaps more educated than some people and possibly more intelligent than some people, i wasn't necessary lay better soldier. indeed, i was a deficient soldier in some respects. well, i think it's hazardous to draw much about his judicial career from these experiences.
5:45 am
i think these were very important experiences in his life. and to be sure, for much of his life as a judge, he had another life which was extrajudicial, which involved correspondence and flirtations with women and a romance with claire castleton and affectionate relationships with his law clerks. but i'm loathe to suggest there was much direction of a direct kind between his jurisprudence and his civil war experience. one has to bear in mind that when holmes left the army of the potomac in july 1864, he was 23 years old. in the next 18 year, he would go to law school, be accepted to the massachusetts bar, begin with a law firm, became an
5:46 am
editor and contributor to the american law review, edit the 12th edition of james kent's commentaries, and write a series of articles in the american law review between the early 1870s and 1880 on a variety of subjects, write the lectures that he delivered that became the common law, be apointed to the harvard law faculty and stay there for one year, leaving so suddenly that the harvard law -- that his colleagues on the harvard law faculty, including james bradley thayer, that had raised money far chair for holmes to take when he joined the faculty, he consulted none of them in accepting the position on the supreme judicial court of massachusetts. and they were thunder struck and they were outraged.
5:47 am
and it took over 15 years before harvard granted holmes any official recognition even though by that time he'd gone on to become an obviously visible associate judge and then chief judge of the supreme judicial court in massachusetts. so there's a lot going on in those 18 years between the time he leaves the army and the time he first steps onto the bench. it's all a loss. it's a sampling of nearly every professional role that the legal profession presents and an immerinimme immerings in it that was so extensive that on one occasion holmes was dining with henry and william james' family, and he
5:48 am
brought with him to the dinner table one of these green bags that is a bag containing a manuscript that students used to use at the time, and he's not a student at this point, he's working at -- he's practicing law and doing academic work and he's editing commentaries. and he's got in the bag the manuscript of his editor. and henry william james' mother says, do you bring that bag with you to the table all the time? he says, oh, yes, yes, i do. and she then describes him as a powerful groove carved to narrow out a self-beneficial groove through life. a powerful machine carved to narrow out a self-beneficial -- he's -- his friends and intensity. so, this is not a trivial
5:49 am
pursuit that he's engaged in. this is -- the law is very important for him. he struggles with understanding whether he would want to do it as a law student initially, and he finally concludes that it's, as he puts it, worthy of an intelligent man. and so he throws himself into it. so, i think the -- what professor mcpherson has described as his pragmatism, i don't -- i wouldn't -- i would find it hard to trace that to the civil war experience. and with respect to his abolitionism, i think there's a considerable transformation of holmes' attitudes while he is in service. and it's, as professor mcpherson puts it, it's a way from abolitionism. he says later on that his heroes
5:50 am
in the war were more on the confederate side. he admired their courage. he admired their soldierly series. when he turns down penn well howell's offer to a regiment that would be composed of african-american soldiers, he tells this to henry abbott and abbott writes him a letter saying i'm glad you didn't worship at the shrine of the great nigger. holmes' record on civil rights issues as a supreme court justice is not exemplary. he's probably in an era in which the court's support for civil rights was grudging, at best. hoemdz is even less grudging than many of his colleagues.ku+f
5:51 am
so, if there was an yishl enthusiasm for abolitionism, it dissipated in the war. i think the greatest impact of judge and a scholar comes in this sort of double transformation that he made from the idea of war being a crusade to admiration for the ethos of the soldier's faith. and then it takes yet another turn. when holmes begins to do scholarship and be a judge, begins to liken intellectual enterprise as to something like a so will dairy hazardous jourp any. he begins to wrap himself in a cult, which is later called
5:52 am
jobbism, the idea that you just do your job as best you can do your job as best you can and leave it as that. there's a remarkable passage holmes makes on the 50th anniversary of the harvard class of 1861, 1911, in which he says to an audience, incidentally something like 70% of that class fought in the war. so he's talking about the class. he's talking about the war. and he says, i learned in the regiment and the class to hammer out as solid and compact a piece of work as one could to try to make it first rate and leave it unadvertised.
5:53 am
now, that's a good encapsulation of holmes' attitude to his work. but did he learn it in the class and the regiment? i think not. or put it another way, i think only in translation. thank you. >> so, my job here is just to try to get this discussion going and keep us from going over 7:00, as i've been instructed by the powers that be. what i'm really interested in is holmes as a justice was considered a philosopher king. and people have sort of had a field day with his different philosophies.
5:54 am
i think there's a disagreement as to what that something else is. professor mcpherson said it was pragmatism. lewis mcnann would say it's skepticism, and professor white was resisting the idea toward the end that it was jobbism, right? that that was sort of constructed later on. but that's not really what the war taught him at all. in his book professor white says he said it was sort of an unadvertised professional craftsmanship is what the war taught him. was that -- i guess what i'm wondering, are these competing narratives about holmes' world view, his philosophy, are they mutually exclusive? contradictory? what narrative do you buy most about how the war affected holmes' thinking? >> well, i see no inconsistency
5:55 am
between holmes as a pragmatist and holmes as -- his jobbishness. i think that he -- what he admired more than anything else was a kind of professionalism f of -- of doing the job right, getting things right. not exactly a per fictionism, whatever works. to me, that's the essence of pragmatism. one of his friends, close friends during much of his life was william james. the architect of the philosophy of pragmatism. and i think this admiration of abbott, the professionalism of abbott, the courage, the devotion to duty and to honor really replaced the idea of devotion to a cause.
5:56 am
because of holmes' civil war experience. and that, i think, evolves into what i called pragmatism, but i don't see it as all being inconsistent with what professor white described either. >> i think we're talking about two related but different things. i entirely agree that the cult of jobbism is a translation of the ethos of sole dediering. i think holmes gets it from that. he doesn't explicitly acknowledgele connection, but he feels as if that's what he's -- he's trying to do his job the best way he could in the same manner abbott was trying do his job the best way he could. and i think first they'd have to
5:57 am
get over a letter that holmes wrote to william james when james published a book on pragmatism. william james and holmes had been close in the 1860s. and these are the days in which they were both participants in the metaphysical club. james went abroad to study medicine and went back and, in fact, he and holmes organized the club. holmes is very interested in philosophy. in fact, that's one of the concerns he has about whether he'll ever catch on to law school because it may not be that interesting, as philosophical issues are. once holmes goes to law school and finally gets immersed in things, he begins to separate himself from the jameses and, indeed, from his college friends
5:58 am
generally. and he and william james don't have much contact after that. and when holmes writes james that letter, it's not a favorable review. it's an expression of holmes' skepticism about whether the pragmatism does anything as a philosophy. i don't think one can make holmes into brandeis. brandeis was all for experimentation at the state level. at least if it suited his particular agenda. but -- so you could probably say in some respects brandeis might have embraced pragmatism. but there's not a single line that i have found in holmes' papers, holmes' writings that identifies him explicitly with a pragmatic approach. and i don't think it's consistent with his temperament.
5:59 am
i don't think holmes is a mr. fix it guy. i don't think holmes is a facilitator, an akak date come . i think he's aloof, largely detach detached, independent. he certainly wasn't much of a player, as that term is used on the supreme court. he didn't. he was very disfekzly disposed to his fellow justices. but there's very little sense he's acting like justice brennan or someone who is really enjoying the politics of the institution and trying to persuade people to do -- take positions that holmes would endorse. holmes goes his own way. so, i -- i mean, i realize that i'm, perhaps, in a minority among the holmes scholars but i resist the pragmatic label. >> so, i want to go back to the civil war a little bit. there's been a recent book,
6:00 am
which i know you're aware of. it's called "harvard civil war" about the massachusetts regiment by a historian named richard f. miller. what he shows in that book about the 20th regiment is that it was really divided along both ideological lines and along class lines. so, you had most of the officers being these sort of harvard gentlemen. you had german troops in the unit, and then you had these nantucket whalers. >> and some irish. >> and some irish in the unit. and then there was the other division among class of abolitionis abolitionists, which holmes was at the beginning and not at the en, and the nonabolitionists led by henry abbott. i was just sort of wondering, did that change holmes' ideas about class and difference and, you know, because here's someone who really befriended a lot of
6:01 am
people who boston brahmans wouldn't accept. i just wanted to know if you thought that had any influence on sort of his acceptance of lots of different types of people. >> well, i think his experience in that regiment certainly democrat tiesed his attitude in many ways different ways. i think he came to enjoy courage and all these different groups, the whaling people from nantucket, the german-americans from boston, the irish, demonstrated courage because this was a tough regiment. at the same time, i think the harvard cast of the officers, the brahman cast to some degree, not all were harvard men, but many came from the upper class
6:02 am
of boss tone ytonians. they forged a relationship of class, indeference. the officers represented the men and the men respected the officers partly because the officers demonstrated their skill and leadership and i think that's what forged the regiment into such an outstanding regiment, even though one would not originally see this as a promising mix. but it turned out to work very well. and i think that probably had something to do with holmes' sense of, you know, professionalism. as being one of the highest values. >> there's no question when holmes enlists, he thinks this is a class contribution. that he thinks it's a kind of no
6:03 am
blesoblege on the part of him and his porclian classmates at harvard to go out and fight for this cause. that's why the term civil chiva comes up. this is the knights of the round table in holmes' consciousness. i agree the experience in the regiment, it's -- it sticks in my craw a little bit to use the word demom ra tiesing in connection with holmes. it's hard too think think of h democrat. he is the author of a letter that says, i loathe the thick-fingered clowns who are the people. so, i -- but as i said earlier, he recognizes that there are people in this regiment from different backgrounds from his, from less, quote, distinguished
6:04 am
backgrounds, that are better soldiers. that are dealing better with the stresses of war than he is. so i think that's important. now, with respect to holmes' -- again, this is a label that people have associated with him. tolerance. with respect to holmes' tolerance, it's often cited that he had close friendships with people who were jewish or who were chinese. i have a couple things to say about that. first, he clearly has -- he has a love/hate relationship with his own sort in boston. which he goes on the court of massachusetts, he writes opinions that are not regarded from the point of viewk
6:05 am
there's a quote from senator hore who opposes holmes' nomination. he's trying to -- the strategy is to bypass hore, who's the senior senator from massachusetts when henry cab bot lodge and theodore roosevelt appoint him to the court. they know hore is going to apose it and go ahead and do it later and consult him later and they know at this point hore can't oppose hore. how is the senior senator from massachusetts going to say no to that? senator hoar writes a letter saying, i think there are a lot of solid oak timber in the massachusetts bar. and i wonder whether carving a
6:06 am
judge out of ornamental ivory would be better. there's a sense -- then there's the famous colloquy between addison, the philanthropist -- capitalist turned philanthropist after the soldiers faith. and holmes runs into addison and addison says, i read your speech. i don't like it. it's bad morals and bad politics. there is this sense captured in a letter holmes writes to frederick pollock after he's captured the court, there is this sense that citizens of boston don't think he's reliable, too intellectual, too ornamental. he resents this. and he doesn't -- with the
6:07 am
exception of john chipman gray, he doesn't have intimate friends drawn from the braman group. but his intimate friends fall into two categories. one group is women where he just enjoys and maybe there's been some flirtations earlier in their lives, but now they're just friends and he has long correspondences with women. john chipman grays wife and several others. the others are people that he has intellectual engagement with, intellectual affinity with. holmes doesn't really care who you are. if you write him and you show evidence that you paid attention to issues that holmes is interested in and whether you're
6:08 am
john h.woo or lewis einstein or willis frankfurter or howard laski or sir frederick pollock from a different background, holmes is happy to talk to you. he's interested to engage with you anything that interests him. but this is a different kind of intimacy. this is a very structured intimacy. it's the intimacy of the correspondence relationship. there's this story about lasky. lasky is many years younger than holmes. lasky is 40 years younger than holmes. holmes has taken to lasky and he sends him books and they exchange -- there's more letters to lasky than any one k correspondent. five or six years into the correspondence, lasky proposes they call each other by their
6:09 am
first names. they've been writing these, my dear holmes, my dear lasky. holmes writes back, my dear lasky. that's all i'd say. >> we would be remiss if we didn't talk about ft. stevens if we talked about holmes and the civil war. i want to get your thoughts on was holmes at ft. stevens with president lincoln when confederate troops were approaching washington, d.c.? are his quotes about telling lincoln, get down you damn fool, apocrafil. i wanted your thoughts on that. >> what we know for sure is president lincoln was at ft. stevens on july 11th. he was peering over the paraput while the bullets were flying and some soldier told him to get
6:10 am
down. he may have said, get down you fool. he may have said get down you damn fool, but we know someone did because lincoln told john hey about it that evening that some soldier had roughly told him to get down and hay recorded in his diary. we don't know whether holmes was there on the 11th. we do know that holmes was there on the 12th, the next day, and lincoln was there. and on this occasion general wright told lincoln to get down. i would like to believe that it was holmes on the 11th who told lincoln to get down. but we don't know that for sure. and and i don't know, ted, what you think about this. i suspect probably it was somebody else, but i wish it was holmes.
6:11 am
>> i have reason to doubt it was holmes for two reasons. holmes talked to his close friends about particular experiences he had in the civil war. he talked to his law clerks about them. his law clerks remembered several conversations. and he -- when he would remember the days of wounds, he would sometimes make other aleutians -- illusions to things. and he did write a letter, as jim has said, that he was at ft. stevens when lincoln was there. and he actually mentions the fact that lincoln was there. but he says nothing about any incident involving people -- someone telling lincoln to get down, you fool. and that is a little curious. holmes was very far from being
6:12 am
someone who wanted to embellish his participation in things. so, i think if he had on that occasion said, get down, you fool, to lincoln and he would have simply said it to someone at that point. he wouldn't have advertised prominently but he would have mentioned it to an intimate at some point in his life and he never did. the other thing is the source of the story was harold lasky. and lasky was a notorious embellisher. and so -- and there's no other account of -- there's no other
6:13 am
source for this story. so i'm inclined to put this in the same category as when daniel webster made his plea in the john marshall, there were tears in his eyes. it's a good story and somebody tells it at some point in the history of writing up these incidents and it's too good for people not to repeat. that isn't to say it didn't happen. >> so, before we go, i wanted to talk about holmes' views about lincoln. because it seems like that not only was holmes after his wartime experience ambivalent about the war, but he was also ambivalent about lincoln. when people asked him about lincoln later on, he didn't really put lik con even in the great man category. i was curious as to why you thought that. >> i don't really know the er

38 Views

info Stream Only

Uploaded by TV Archive on