美國100位歷史名人榜(53)Oliver Wendell Holmes Jr.

Oliver Wendell Holmes, Jr. (March 8, 1841 March 6, 1935) was an American jurist who served as an

Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice on the Supreme Court of the United States from 1902 to 1932. Noted for his long service, his concise and pithy opinions, and his deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his "clear and present danger" majority opinion in the 1919 case of Schenck v. United States, and is one of the most influential American common-law judges.

Early life
Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr. and abolitionist Amelia Lee Jackson. As a young man, Holmes loved literature and supported the abolitionist movement that thrived in Boston society during the 1850s. He graduated from Harvard University in 1861, where he was elected to the Phi Beta Kappa honor society and was a brother of the Alpha Delta Phi.

Civil War
During his senior year of college, at the outset of the American Civil War, Holmes enlisted in the fourth battalion, Massachusetts militia, and then received a commission as first lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry. He saw much action, from the Peninsula Campaign to the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. Holmes particularly admired and was close to his fellow officer in the 20th Mass., Henry Livermore Abbott. Holmes is said to have shouted at Lincoln to take cover during the Battle of Fort Stevens, although this is commonly regarded as apocryphal. [Note: In the biography "Justice Oliver Wendell Holmes:Law and the Inner Self" by Edward G. White, Justice Holmes is quoted as indicating that while he was at Fort Stevens on the day of President A. Lincoln's visit, he denied that he made any remarks at all to the President.

State Judgeship
 Oliver Wendell Holmes Jr. as a young man.After the war's conclusion, Holmes returned to Harvard to study law. He was admitted to the bar in 1866, and went into practice in Boston. He joined a small firm, and married a childhood friend, Fanny Bowditch Dixwell. Their marriage lasted until her death on April 30, 1929. They never had children together. They did adopt and raise an orphaned cousin, Dorothy Upham. Mrs. Holmes was described as devoted, witty, wise, tactful, and perceptive.Whenever he could, Holmes visited London during the social season of spring and summer. He formed his closest friendships with men and women there, and became one of the founders of what was soon called the “sociological” school of jurisprudence in Great Britain, which would be followed a generation later by the “legal realist” school in America.Holmes practiced admiralty law and commercial law in Boston for fifteen years. In 1870, Holmes became an editor of the American Law Review, edited a new edition of Kent's Commentaries on American Law in 1873, and published numerous articles on the common law. In 1881, he published the first edition of his well-regarded book The Common Law, in which he summarized the views developed in the preceding years. In the book, Holmes sets forth his view that the only source of law, properly speaking, is a judicial decision. Judges decide cases on the facts, and then write opinions afterward presenting a rationale for their decision. The true basis of the decision is often an "inarticulate major premise" outside the law. A judge is obliged to choose between contending legal theories, and the true basis of his decision is necessarily drawn from outside the law. These views endeared Holmes to the later advocates of legal realism and made him one of the early founders of law and economics jurisprudence.Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George

Frisbie Hoar convinced Hayes to nominate another candidate. In 1882, Holmes became both a professor at Harvard Law School and then a justice of the Supreme Judicial Court of Massachusetts, resigning from the law school shortly after his appointment. He succeeded Justice Horace Gray, whom Holmes coincidentally would replace once again when Gray retired from the U.S. Supreme Court in 1902. In 1899, Holmes was appointed Chief Justice of the Massachusetts Supreme Judicial Court.During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize trade unions as long as no violence or coercion was involved, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers.


Retirement, death, honors and legacy
Holmes served on the court until January 12, 1932, when his brethren on the court, citing his advanced age, suggested that the time had come for him to step down. By that time, at 90 years of age, he was the oldest justice to serve in the court's history. Three years later, Holmes died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday. In his will, Holmes left his residuary estate to the United States government (he had earlier said that "Taxes are what we pay for civilized society" in Compania General De Tabacos De Filipinas vs. Collector of Internal Revenue, 275 U.S. 87, 100 (1927).) He was buried in Arlington National Cemetery, and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.

Holmes's papers, donated to Harvard Law School, were kept closed for many years after his death, a circumstance that gave rise to numerous speculative and fictionalized accounts of his life. Catherine Drinker Bowen's fictionalized biography "Yankee from Olympus" was a long-time bestseller, and the 1951 Hollywood motion picture The Magnificent Yankee was based on a highly fictionalized play about Holmes's life. Since the opening of the extensive Holmes papers in the 1980s, however, there has been a series of more accurate biographies and scholarly monographs.

霍姆斯的哲學觀受到了社會達爾文主義和實用主義的影響,這在他生前和死後都遭到了批評。霍姆斯在1927年的 Buck Bell案中,認為州政府強制給智障者絕育並不違反聯邦法律,他聲稱:癡呆人有三代就夠了。這是霍姆斯在判例中奉行社會達爾文主義的著名例子。霍姆斯在對待種族和貧困問題上的個人態度上有精英主義之嫌,這也遭到了批評,他的好友路易士·布蘭戴斯曾評論道:霍姆斯對損害大眾的罪惡一無所知

霍姆斯反對道德理論和自然權利論,而信奉道德相對主義,這使得他強烈支持第一修正案的言論自由權,尤其是密爾的觀點市場理論。他的名言是;第一修正案不會保護一個在劇院裡妄稱失火而招致恐慌的人。他還創制了清楚而即刻的危險標準,已確定政府對言論的限制是否合憲,該標準源於1919年的Schenk 訴合眾國案,該案在最高法院言論自由判例中非常著名。霍姆斯相信,沒有絕對的真理,因此言論自由對自由交流觀點而言至關重要。

對道德相對主義的支持,也使得霍姆斯反對實體性正當程式(substantive due process判解原則,不認為美國憲法對政治過程強加了實體性限制。儘管他對做出了一個著名的例外,即令他作嘔的政府行為。該致嘔檢測法成為了後來菲力克斯·弗蘭克福特良心震撼論的依據,並在當前在一些實體性正當程式案例中成為主導原則。霍姆斯的司法哲學在美國法律現實主義中起到了很大作用,該學派強調現實世界對判決的影響,而不強調法律形式主義和理論。

霍姆斯受到當時像弗蘭克福特和布蘭戴斯等自由派人士的推崇,被認為是對最高法院合同自由判解原則的強有力的批評者。該院則經常被用來判決社會性立法違憲,其中最著名的是1905年的Lochner 訴紐約州案。霍姆斯在該案中書寫了異議意見,他認為:憲法並不意圖支持某個特定的經濟理論。這是最高法院判例史中最廣為引用的話之一。

《普通法》(The Common Law),1881 
法律之路(The Path of the Law,載於《哈佛法律評論》第10卷,1897年。



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