The legislature, like the executive, has ceased to be even the creature of the people: it is the creature of pressure groups.

A very interesting review by H.L. Mencken of a book on Justice Holmes. I have enjoyed Holmes from a literary perspective but not ever particularly investigated his judicial record. Mencken is a master craftsman with words and the turned phrase but his exuberance sometimes takes him beyond the bounds of reliability and certainly beyond the bounds of civil discourse.

From Mr. Justice Holmes by H.L. Mencken in 1929.

There is even more surprising stuff in the opinions themselves. In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside summarily by any jury that has been sufficiently inflamed by a district attorney seeking higher office. In Fox vs. the State of Washington we learn that any conduct "which shall tend to encourage or advocate disrespect for the law" may be made a crime, and that the protest of a man who believes that he has been jailed unjustly, and threatens to boycott his persecutors, may be treated as such a crime. In Moyer vs. Peabody it appears that the Governor of a State, "without sufficient reason but in good faith, "may call out the militia, declare martial law, and jail anyone he happens to suspect or dislike, without laying himself open "to an action after he is out of office on the ground that he had not reasonable ground for his belief." And in Weaver vs. Palmer Bros. Co. there is the plain inference that, in order to punish a theoretical man, A, who is suspected of wrong-doing, a State Legislature may lay heavy and intolerable burdens upon a real man, B, who has admittedly done no wrong at all.

I find it hard to reconcile such notions with any plausible concept of Liberalism. They may be good law, but it is impossible to see how they can conceivably promote liberty. My suspicion is that the hopeful Liberals, frantically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holmes's opinions without examining the rest, and read into them an attitude which is actually as foreign to his ways of thinking as it is to those of Mr. Chief Justice Hughes. Finding him, now and then, defending eloquently a new and uplifting law which his colleagues proposed to strike off the books, they concluded that he was a sworn advocate of the rights of man. But all the while, if I do not misread his plain words, he was actually no more than an advocate of the rights of law-makers. There, indeed, is the clue to his whole jurisprudence. He believes that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly pass the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including, apparently, even the rights of man. If this is Liberalism, then all I can say is that Liberalism is not what it was when I was young.

In those remote days, sucking wisdom from the primeval springs, I was taught that the very aim of the Constitution was to keep law-makers from running amok and that it was the highest duty of the Supreme Court, following Marbury vs. Madison, to safeguard it against their forays. It was not sufficient, so my instructors maintained, for Congress or a State Legislature to give assurances that its intentions were noble; noble or not, it had to keep squarely within the limits of the Bill of Rights, and the moment it went beyond them its most virtuous acts were null and void. But Mr. Justice Holmes apparently thinks otherwise. He holds, it would seem, that violating the Bill of Rights is a rare and difficult business, possible only by summoning up deliberate malice, and that it is the chief business of the Supreme Court to keep the Constitution loose and elastic, that getting through it may not be too onerous. Bear this doctrine in mind, and you will have an adequate explanation, on the one hand, of those forward-looking opinions which console the Liberals—for example, in Lochner vs. New York (the bakery case), in the child labor cases, and in the Virginia case involving the compulsory sterilization of imbeciles—and on the other hand, of the reactionary opinions which they so politely overlook—for example, in the Debs case, in Bartels vs. Iowa (a war-time case, involving the prohibition of foreign-language teaching), in the Mann Act case (in which Dr. Holmes concurred with the majority of the court), and in the long line of Volstead Act cases.

Like any other man, of course, a judge sometimes permits himself the luxury of inconsistency. Mr. Justice Holmes, it seems to me, did so in the wiretapping case and again in the Abrams case, in which his dissenting opinion was clearly at variance with the prevailing opinion in the Debs case, written by him. But I think it is quite fair to say that his fundamental attitude is precisely as I have stated it. Over and over again, in these opinions, he advocates giving the legislature full headroom, and over and over again he protests against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at minorities. If what he says in some of those opinions were accepted literally 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.

The weak spot in his reasoning, if I may presume to suggest such a thing, is his tacit assumption that the voice of the legislature is the voice of the people. He is, I take it, a democrat, and thus holds naturally that the people ought to have every right to make experiments and to change their minds. But there is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased to be even the creature of the people: it is the creature of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle — a mere counter in a grotesque and knavish game. Is he in favor of Prohibition? Then it is no more than a sign that the Anti-Saloon League has found out how to scare him. Is he for a high tariff on this or that? Then it is simply because the Grundys of his bailiwick have told him plainly what they want, and what penalties will follow if they don't get it. If the right pressure could be applied to him he would be cheerfully in favor of chiropractic, astrology or cannibalism.

It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have minorities in mind; what they sought to hobble was the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury vs. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the cornerstone of American constitutional law. Now the court takes the opposite line, and public opinion seems to support it. Certainly Dr. Holmes has not gone as far in that direction as some of his brother judges, but if the opinions in this book represent him fairly he has gone far enough. He is a jurist of great industry, immense learning and the highest integrity, but in the light of the present book, to call him a Liberal is to make the word meaningless.

"The legislature, like the executive, has ceased to be even the creature of the people: it is the creature of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty" puts the lie to the hysteria of the mainstream media today.

There is nothing out of the ordinary, nothing we have not seen before, no perilous discord that we are left trembling on the brink of dissolution, discord and even civil war. What silly, ignorant ninnies.

The Mandarin Class of the mainstream media, academia and the establishment political parties were dealt a surprise by the electorate at the election. There is nothing inherently stupid or evil about Trump other than that he is a constant and visible reminder that people don't accept the ministrations of the Mandarin Class. He is doing nothing out of the ordinary other than to speak directly to the people on matters important to them, leaving the Mandarin Class fuming on the sidelines absorbed in their own nonsense.