Why Oliver Wendell Holmes is Grossly Overrated
20th August 2009
As Mencken put it, Holmes was no “advocate of the rights of man,” but rather “an advocate of the rights of lawmakers.” With rare exceptions, he ruled that legislators could do almost anything they wanted, even if it contrasted the plain text of the Constitution, or the original meaning. Mencken accurately points out that under Holmes’ judicial philosophy, “there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.”
Hear, hear.