Holmes and Honors Law at LSU-From the Great Hall to La Maison Française

• Author: Paul R. Baier
• Position: Speech at LSU Honors College Advocates Banquet
• Pages: 53-68

Page 53

Speech at LSU Honors College Advocates Banquet, Grand Salon, La Maison Française, Louisiana State University, Baton Rouge, Louisiana, (April 26, 2002). Professor Baier has annotated his speech for publication in the Louisiana Law Review.

George M. Armstrong, Jr., Professor of Law, Paul M. Hebert Law Center, Louisiana State University. Member of the Louisiana Bar. Judicial Fellow, Supreme Court of the United States, 1975-76; Executive Director, Louisiana Commission on the Bicentennial of the United States Constitution, 1987-91; Scholar in Residence, Louisiana Bar Foundation, 1990-92.

I think one of the best things an older man can do for younger men is to tell them the encouraging thoughts his experience has taught him. It is better still if he can lift up their hearts-if after many battles which were not all victories, the old soldier still feels that fire in him which will impart to them the leaven of his enthusiasm.

- Oliver Wendell Holmes, Jr.¹

ADVOCATES OF LSU HONORS COLLEGE:-"At every feast it is well to have a skeleton. At every gathering of the elect, the doubting spirit must be allowed to ask his question."²

This from a ghost of the law I venture to conjure up at a banquet of LSU Honors College Advocates.

I mean Oliver Wendell Holmes, Jr., of Boston, sometime student of the law at Harvard Law School, Civil War Captain, Twentieth Massachusetts,³ later Mr. Justice Holmes of the Supreme Court of the United States.

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When the great Hopkinson portrait of Holmes was unveiled at the Court-it was painted from life-this is what Justice Holmes, a Doubting Spirit himself, said of Mr. Hopkinson's portrait. Holmes was nearing his ninetieth birthday at the time.

I quote him:-"It's not me, but it's a damn good thing the American people think it's me!"⁴

You will see His Honor Holmes with your own eyes in a moment "live and in person," so to speak, preserved in National Archives nitrate negatives dug up and featured in a little film I made while working inside Mt. Olympus. Do I have your attention?

"Court Reports" premiered a quarter of a century ago in the Great Hall of the Supreme Court of the United States. Chief Justice Burger arranged a black-tie feast celebrating the founding of the Supreme Court Historical Society. I conspired behind his back to project the ghost of Holmes onto the scene.⁵ It worked out well.⁶

I propose to bring the same JUSTICE HOLMES & CO. from the Great Hall of the Supreme Court to the Grand Salon of the French House. My aim is to answer the doubting spirit's question, "Why Holmes, Why Honors Law at LSU?"

II

I put this question in the negative myself to Dean Billie Seay of LSU Honors College the day I met him. Our chance encounter followed a brown bag lunch at the Law Center, where I heard then Chancellor William Jenkins tell the Law Faculty that LSU Honors College-and here I quote him precisely-"is just like Oxford." He spoke of top students, small seminar rooms, and an aura of inspired teaching.

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I heard William Jenkins's proud bugle boast: "LSU Honors College is the crown jewel of the University."

William Jenkins, as life unfolds, is now President of our University. He, too, is an Honors College Advocate. His enthusiasm sparked in me a desire to see this diamond for myself. Thus it was that I closed in on Dean Seay's door. All I had to do was cross the street, just as Holmes passed the crowd⁷ on 1st Street, N.E., Washington, D.C., to reach the Library of Congress. To my disappointment, I could find not one stitch of law in the Honors College Bulletin.

"Why not Holmes? Why not Honors Law at LSU?" I asked Dean Seay.

An advocate, I am sure LSU Honors Advocates know, aims at persuasion. According to Justice Frankfurter, another ghost at our banquet, an advocate is "a practitioner in the art of persuasion."⁸ I made one argument to Dean Seay. It was made in all apparent seriousness: "Mr. Dean, I assume you have heard of Princeton University." His Deanship nodded yes, as of course I knew he would.

Next, I followed up with unanswerable advocacy: "Princeton University does not have a law school, but it has a Department of Jurisprudence. You should teach law in LSU Honors College." Dean Seay, thinking nothing of Holmes, I am sure, but rather eyeing an eager resource, asked me in turn, "Do you have any ideas?"

I filed a seven-page syllabus with the Honors College's overseers. Honors 3031, Baier & Hardy, has been on the Dean's Docket Sheet ever since. Two fat volumes of cases and materials,⁹ an Appendix of Writing Samples¹⁰ (mainly Baier & Hardy, say it softly), two Page 56 paperbacks, Max Lerner's engaging The Mind and Faith of Justice Holmes¹¹ Benjamin Cardozo's immortal classic, The Nature of the Judicial Process,¹² lectures delivered at Yale University in 1921, constitute the corpus juris of the course.

"And so LSU has its first Honors College offering in Law: 'The Constitution and American Civilization,' featuring Holmes and Cardozo, and aimed at LSU's brightest aspirants for law school and the legal profession."¹³ This from Justice Catherine "Kitty" Kimball's Foreword to Volume I of our cases and materials. Justice Kimball, the first woman elected to the Louisiana Supreme Court, joins your company as a proud LSU Honors College Advocate. She is one of us.

I remember my own beginnings at LSU both as an undergraduate and as a law student, pouring over the books and walking the great halls of the Old Law School, where few women, at that time, accompanied me. One never knows what the future holds, but a path must be blazed. I am glad to add a word of encouragement and hope to Baier and Hardy's enthusiastic experiment. Why hasn't this been done before?¹⁴

III

My teaching colleague in the Honors College, Jim Hardy, is a delight. He is a scholar of Milton's hermeneutic journey in poetry,¹⁵ Page 57 as I am of Holmes's in law. Cross-pollination of our respective fields at LSU Honors College convinces us that Holmes was wrong-we say Holmes was wrong-to exclaim, in all apparent seriousness, in a speech to Harvard undergraduates on the profession of the law:- "Of course the law is not the place for the artist or the poet. The law is the calling of thinkers."¹⁶

Holmes, Jr.'s remark was aimed, under the table, so to speak, at his father, Dr. Holmes, poet, essayist, author of The Autocrat of the Breakfast Table,¹⁷ who wondered out loud how law "could be worthy of the interest of an intelligent mind."¹⁸ The son answered the father:

My way has been by ocean of the Law. On that I have learned a part of the great lesson, the lesson not of law but of life. There were few of the charts and lights for which one longed when I began. One found oneself plunged in a thick fog of details-in a black and frozen night, in which were no flowers, no spring, no easy joys. Voices of authority warned that in the crush of that ice any craft might sink. One heard Burke saying that law sharpens the mind by narrowing it. One heard in Thackeray of a lawyer bending all the powers of a great mind to a mean profession. One saw that artists and poets shrank from it as from an alien world. One doubted oneself how it could be worthy of the interest of an intelligent Page 58 mind. And yet one said to oneself, Law is human-it is part of man, and of one world with all the rest. There must be a drift, if one will go prepared and have patience, which will bring one out to daylight and a worthy end.¹⁹

Civilization, no doubt, is a worthy end. And true it is, that the human enterprise of Law tends, by differences of degree, to make the world civilized. Between us "and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies a culture of two thousand years."²⁰

But, contrary to Holmes, we say the artist or the poet may find her place in the Law. The general clauses of the Constitution, "Liberty," "Equality," "Due Process," are not self-defining terms. At its highest, constitutional hermeneutics requires the artistry of the poet.

Baier & Hardy, take note, are doubting spirits themselves. And here the poetic spirit of Cardozo²¹ comes to life at La Maison Française, as a sharp foil to Holmes. "No one shall be deprived of liberty without due process of law. Here is a concept of the greatest generality,"²² says Cardozo. "Yet it is put before the courts en bloc. Liberty is not defined. Its limits are not mapped and charted. How shall they be known?"²³ Cardozo's answer is to see the notion of modern liberty as a "fluid and dynamic conception,"²⁴ which "must also underlie the cognate notion of equality."²⁵ "From all this, it results that the content of constitutional immunities is not constant, but varies from age to age."²⁶

Like Napoleon's Code, America's Constitution is seen as a living document. Portalis-le Père du Code Civil (the Father of the Civil Code)-puts it this way: "The Codes of nations are the fruit of the passage of time; but properly speaking, we do not make them."²⁷ Or, Page 59 in Chief Justice John Marshall's immortal aperçu, "we must never forget, that it is a constitution we are expounding."²⁸ Judges of Cardozo's School, our Honors students know, are entrusted to interpret with "le sens évolutivf."²⁹

"The Constitution and American Civilization" is aimed at spirits of fire who would make out a life for themselves through such a door as the law. It is through the door of the law that America has civilized herself, as we see it. The Supreme Court, we all know, ended apartheid in America by the stroke of the Constitution.

"Well, it was the most difficult adjustment I had ever made in my life, before or since. I've always thought that perhaps the most lonesome day I ever had in my life, was the day I arrived at the Supreme Court."³⁰

Earl Warren was not an artist, he was not a poet, before coming to the Court. Yet the Warren Court's vision of America's Constitution, explained in plain and simple lines, is poetic-as...