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Books Books illuminate U.S. values in law, life
LIFE WITHOUT VALUES:
THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES By Albert W.
Alschuler The University of Chicago Press, 325 pages,
$30 |
AN HOUR BEFORE
DAYLIGHT: MEMORIES OF A RURAL BOYHOOD By Jimmy Carter Simon &
Schuster, 284 pages, $26 |
REVIEWED By LESLIE
GRIFFIN
Readers will enjoy the distinctive perspective on law and values
provided by these two very different but equally engaging books. Professor
Alschuler deconstructs the myth of Justice Oliver Wendell Holmes by arguing
that Holmes is a false hero whose skepticism contributed to our current culture
of law without values, that is, without any objective concepts of right and
wrong.
President Carter reconstructs his boyhood in rural Georgia, where
he learned the lasting values that have sustained his political and public
career and enhanced his international reputation as a persistent advocate of
human rights and opponent of human wrongs.
Both books are noteworthy for their unexpected perceptions. The
liberal Yankee from Olympus justice became a harsh skeptic after
his service as a soldier in the Civil War. Although some of his decisions were
progressive, he also with pleasure upheld the sterilization of
imbeciles and sustained the white power structure against
challenges by black plaintiffs. Alschuler argues that Holmes lost his idealism
in the war. From then on, right could never be more than the will of the
strongest, what a given crowd will fight for. This most influential
Supreme Court justice subscribed to a power-focused philosophy: Winners win.
Law without values.
Carter, the Christian Southern governor and president, explains
that the Civil War was a living reality in [his] life; he
grew up in one of the families whose people could not forget that we had
been conquered. Carter narrates apologetically how the separate but
equal standard was lived in the South, where segregation and the
dominance of whites were accepted facts until the post-Holmes Court changed the
legal landscape. Nonetheless, many of the people who profoundly influenced the
presidents childhood were black. His conclusion, and one of his goals of
writing the book, is to remind readers that his life was shaped by a
degree of personal intimacy between black and white people that is now almost
completely unknown and largely forgotten.
Both authors avoid traditional biographical or autobiographical
style. For example, neither book is chronological. Many of the chapters can be
read as independent units. You could begin with Chapter 3, Would You Have
Wanted Justice Holmes as a Friend?(Probably not.) Or if you begin with
Learning About Sin in Chapter 9, you would discover that
lying was the ultimate crime in the Carter family house, just as it
was years later in the Carter White House.
The Holmes book has an analytical order, in which chapters
dedicated to the justices battlefield experience, legal opinions, his
book (The Common Law) and his influential article (The Path of the
Law) provide evidence of Alschulers basic argument.
Alschulers thesis is that the revered Holmes did not bring
something new to law; [he] took something away, namely morality, an
objective sense of right and wrong. Moreover, the historical context of the
Alschuler book is not really Holmes era, but our own. The author wishes
to convince the heirs of Holmes, the pragmatists and the moral skeptics who
dominate American law, that we have walked Holmes path and have
lost our way. In other words, morality still exists, and the
brooding of the skeptics [is] adolescent and destructive.
Some NCR readers may remember that despite the general
beatification of Holmes in American law, Catholics were always
among his fiercest critics. Alschuler acknowledges that Catholic scholars
recognized the darkness of Holmes jurisprudence. Alschuler
also notes that the conservative Justice Pierce Butler, the only Catholic
member of the Supreme Court, dissented from Holmes notorious opinion in
the sterilization case Buck v. Bell.
Carters book has a vivid factual narrative that emphasizes
the lessons learned from farm and family. The chapters focus on different
features of rural and family life. Carters account of the
Depressions effect on farm life, from the tramps who stopped by the farm
looking for food to the cotton crops that were destroyed at the order of the
government, is especially compelling. Carters Democratic father never
forgave Roosevelt for the cotton and never voted for him again. The son also
learned a lesson about Washington: This was my first picture of the
difference between political programs as envisioned in Washington and their
impact on the human beings I knew.
On a lighter note, we learn that Georgia politicians wore wide red
galluses; the best customers ordered boiled peanuts, and a dope
(Coca-Cola); and blue john (skim milk) is good for cereal and
cooking.
The professors book is much more academic than the
presidents. Non-lawyers may need to take occasional breaks from the
books detailed legal analysis. Keep reading, however, for the
authors consistently interesting insights about Holmes influence on
the morals of our legal system.
Leslie Griffin is a professor at Emery University School of
Law, Atlanta, Ga., and co-editor (with Charles E. Curran) of The Catholic
Church, Morality and Politics.
National Catholic Reporter, March 15,
2002
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