The paths of the law: historical consciousness, creative democracy, and judicial review.

• Author: Kidwell, Erin Rahne

INTRODUCTION

As our nation approaches the turn of our third century, there has been a resurgence of the philosophy born in the turbulent crucible of the late nineteenth century--American Pragmatism.(1) Accompanying this reawakening is a reexamination of the jurisprudence of Oliver Wendell Holmes, the jurist perhaps most directly responsible for infusing into the American legal system the anti-formalism of Legal Pragmatism.(2) A further parallel between the last turn of a century and our own time is the resurgence of a criticism apparently endemic to American culture, namely, that the judiciary is too active a player in our political system.(3) What better voice to answer the assertions of those who maintain that judicial deference and judicial activism are mutually incompatible paradigms of judicial review than one drawn from the wellspring of non-traditional jurisprudence that is Justice Holmes.(4) This Article is meant to offer such a response.

Holmes's jurisprudence should be seen as ameliorating the tension between the opposing principles of judicial deference and judicial activism, allowing each principle to inform and augment the use of the other.(5) Judicial review, the power that Alexis de Tocqueville saw as "one of the most powerful barriers which has ever been devised against the tyranny of political assemblies," is a vital element in our political system.(6) A paradigm of judicial review within which the judiciary defers wholesale to the legislature is hardly a barrier against the dangers of representational fascism.(7)

The bulk of secondary literature discussing Holmes as a pragmatist has focused on what Holmes said about pragmatism and on the degree to which Holmes was influential in the founding of American Pragmatism.(8) There has been relatively little application of Holmes's thought in light of current reinterpretations of pragmatism.(9) The first section of this Article will focus on Holmes's legal theory from a perspective suggested by these reinterpretations.(10) Special attention will be given to the Emersonian roots of American Pragmatism.(11) This focus will stress the importance of historical consciousness in Holmes's legal thought, and connect Holmes's legal theory to an Emersonian vision of creative democracy.(12)

The remaining sections will explore the relevance of Holmesian legal pragmatism to the role of the judiciary in the constitutional experiment in popular sovereignty that is America, concentrating on judicial review. First, Holmes's exercise of judicial review during his career on the bench will be explored. Holmesian judicial review has been traditionally viewed as an exercise in judicial deference with little room for judicial activism.(13) While Holmes's record in exercising judicial review is not uniform, during his last two decades on the Court he exercised judicial review in a manner which foreshadowed Justice Stone's enunciation of the rationale underlying the sliding scale of strict, intermediate, and rational-basis scrutiny in United States v. Carolene Products.(14)

The final section will propose a model of the federal judiciary which frankly acknowledges its political character and function.(15) The responsibility for protecting the personal liberties and political rights of individuals and "discrete and insular minorities" rests on the shoulders of the courts, cries of judicial activism notwithstanding.(16) Judicial review based on the principles of Holmesian legal pragmatism represents the best hope of maintaining and encouraging the exercise of de Tocqueville's "barriers."(17)

1. HOLMESIAN LEGAL PRAGMATISM

   The argument that Holmes was working within the paradigm of American Pragmatism has already been thoroughly covered.(18) Although inconsistencies remain in Holmes's thought, "they can be explained by a characteristic paradox--the man was disabled by temperament, by experience, and by the historical context in which he found himself from adequately practicing the pragmatism he so eloquently preached."(19) The underlying assumption of this Article is that Holmes was a pragmatist. A word of caution is in order for the unwary formalist reader. From the formalist perspective, pragmatism can be unwieldy, vague, and lacking in rigor.(20) There will be many more questions raised than answered in the following pages.

   This is unavoidable to some degree. "The payoff of pragmatist philosophy is ... often more in the critique than in the construction."(21) To adequately address all the issues raised in researching this Article would require a book rather than a law review article. This Article offers suggestions for further inquiry, not a finalized construction of judicial review within the paradigm of Neo-Holmesian legal pragmatism.(22)

   Pragmatism is a philosophy born in the late nineteenth century in Europe, Britain, and most significantly, America.(23) American pragmatism was, in a very real sense, the first truly American philosophy.(24) Wendell Holmes was a fellow traveler of the founders of this school of thought as a member of the Metaphysical Club in Boston in the late 1860's, forming a lifelong friendship with the populizer of pragmatism, William James.(25) In its most common and mundane form, pragmatism is mere practicality and common sense observation of the physically real; the stuff of concrete existence.(26)

   Not surprisingly, none of the original formulators of American pragmatism operated on such a narrow level of thought.(27) Religion, art, history, psychology, indeed, the entire realm of abstract thought occupied their efforts.(28) The deep and abiding mysteries of humanity and the universe were their intellectual stomping grounds, not simply the dreary nature of day-to-day existence.(29) It is becoming clearer that Holmes's conceptions of law, jurisprudence, and legal theory were deeply influenced by his association with the original pragmatists at an early, formative stage.(30) This influence waned, yet never died out, rising stronger than ever late in life.(31)

   Pragmatism asserts that the meaning and truth of any aspect of our existence, shared or individual, is to be found in the consequences of setting our interrelationship with various aspects into actuality, both on the conceptual and concrete level.(32) For example, the meaning of a concept is not to be found in its suppositions and premises, or by reference to some inexperienceable ideal "higher" universe. The consequential workings out of the concept, theoretically or actually, in experienceable phenomenon provide the keys to unlocking truth and meaning.(33)

   Meaning and truth are dependent on experience and driven by the future, not the past. Whether the sun truly rises in the east and sets in the west is not determined and definitively answered by contemplating some "ideal" solar system beyond our capacity to experience. The answer begins in our prior experiences of sunrises and sunsets. Its confirmation only comes with the dawning of each new day.

   Thought, both analytical and intuitive, is seen as a perpetual dynamic of doubt and belief. It is a continuum of seeking and finding, testing and verification. The ideal of foundational knowledge, firm, fixed and immutable, is a mythical construct of humanity's hubris and folly. What everyone truly gets by on, from the simplest to the genius, are reasonably grounded beliefs.(34) These must be confirmed and reconfirmed, consciously and subconsciously, individually and communally. This process takes place wholly within the continuum of experience. Repeated verification of the "facts" of existence through experienceable phenomenon is required to maintain such reasonable systems of belief. This is so whether the system encompasses science, religion, law, ethics, aesthetics, or any other aspect of our individual and communal existence.

   The advantage pragmatism has in fueling inquiry and action over other schools of philosophy is this frank acknowledgment that there are no fixed and immutable answers. Nor are there any fixed and immutable problems. This is because the problems and our attempts to solve them through inquiry and action are intertwined with the ever changing and developing socio-cultural context of our existence.(35) The racial and gender issues of today, for example, have clearly changed from those of a century ago. The issue today is not gaining the right to vote or embedding non-discriminatory principles in the law. Those laudable goals have for the most part been accomplished.(36) Now the focus is on applying the right to vote and actualizing other non-discriminatory legal principles.(37) "[T]he goals that give structure to human plans are never `final'; they are at best momentary resting points whose attainment has further foreseeable consequences desirable or undesirable; hence they must themselves be evaluated as means relative to those consequences.(38) Pragmatism acknowledges that contingency and change are ubiquitous to the human condition. It insists that the world is still in the making and that our efforts for change are not futile; existence can be made better.

   The value of pragmatism to legal thought has been eloquently expressed by Thomas Grey:

   [L]egal theorists ... traditionally see legal disputes as posing binary choices ... treat[ing] opposed legal principles and theories as if we must choose between them to maintain intellectual consistency, as if they were mutually contradictory mathematical theorems or scientific hypotheses. But plausible legal principles are rarely precise enough to play such a role. They are better seen as guidelines, reminders of matters to be taken into account in judgment. They can thus readily coexist in useful tension, without contradiction, bringing to mind the opposed factors that the decision maker should consider. But legal thinkers resist this pragmatist middle way.(39) Ample evidence exists that Holmes favored the application of this pragmatic middle-road between conflicting...