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Canadian Review of American Studies Volume 23, Number 4, 1993, pp. 151-158 Effective Constitutionalism MarianMcKenna 151 Harvey Flaumenhaft. The Effective Republic: Administration and Constitution in the Thought of Alexander Hamilton. Durham: Duke University Press, 1992. Pp. 309. Robert W. Gordon, ed. The Legacy of Oliver Wendell Holmes, Jr. Stanford: Stanford University Press, 1992. Pp. x + 313. A. E. Dick Howard, ed. The United States Constitution: Roots, Rights and Responsibilities. Washington, D. C.: Smithsonian Institution Press, 1992. Pp. xxix+ 402. The voluminous (and still growing) literature on Oliver Wendell Holmes Jr. ranges from the reverence of votaries like Charles E. Wyzanski to adverse critics like Harold McKinnon, whose analysis of the distinguished Massachusetts jurist emphasizes his celebration of force as an ultimate factor in law and government ("Right was on the side that could lick the other side"). One adverse critic went so far as to group Holmes with Hobbes and Hitler! Until now, many writers have been preoccupied with trying to establish whether Holmes was a liberal, only a liberal, or a closet conservative. But, as Daniel Boorstin (1941) has made clear, the use of labels like liberal and conservative are not at all helpful in trying to come to grips with the real Holmes. Of all the great legal minds the United States has produced, Oliver Wen dell Holmes was undoubtedly the most cerebral, and arguably the 152 Canadian Review of American Studies most influential in recent times. "I should like to be admitted to be the greatest jurist in the world ... " he is reported to have once said. If not quite having achieved that vaunted goal, he did succeed in making a singular contribution to the life of the law.More sophisticated recent scholarship on Holmes asks why this is so and explores the wellsprings of his greatness. A new collection of seven essays, edited by Stanford legal historian Robert Gordon, attempts to view Holmes's life and work apart from the restricted framework supplied by traditional jurisprudence. Holmes has served for generations of Americans as a representative man, an icon. Essays in this polished volume by Robert Ferguson, Peter Gibian, and David Hollinger emphasize in different ways how Holmes's influence has permeated all aspects of law and the legal profession. In fact, it has been magnified into legend by the unprecedented attention paid to him. These seven fresh interpretations, part of yet another astonishing revival of interest, offer further proof that the striking paradox Holmes represents still commands respect. The book opens with a well-balanced essay by Robert Gordon surveying the Holmes historiography through its many phases and schools since the justice's retirement in 1932 and death in 1935. It goes far to explain why a Victorian realist and judge who happened to be carried by longevity into the New Deal era should have inspired, and indeed continues to inspire, not only lawyersand judges, but those with diverse intellectual and political orientations, in an attempt to come to terms with this legendary figure, to appropriate his legacyto their own purposes, to denounce and resist it, or simply to take it apart and examine its content. To a considerable extent, this is what givescohesion to this collection of essays; it describes what the authors, separately and collectively, attempt and, in large part, succeed in doing. J. W. Burrow looks at Holmes in his contemporary, intellectual context, relating him to the various strands of Victorian social thought of which Burrow himself is considered the premier historian. He treats such largely neglected sources of Holmes's socialthought as the historical scholarship of Sir Henry Maine and Rudolf von Jhering, along with the various schools of Roman and Teutonic legal history and cognate work in the "comparative method" of anthropology and linguistics.For example, readers are informed MarianMcKennaI 153 that Holmes's use of "smvival," translated heretofore as equated to "survival of the fittest" or, to appropriate a phrase from Holmes himself, the breeding of a race fit for headship and command, was a concept less likely to have been borrowed from Daiwin's evolutionary theory than from linguistics . Burrow pursues the theme relating Holmes to Social Darwinism, but with a new twist that distinguishes him from...

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Additional Information

ISSN
1710-114X
Print ISSN
0007-7720
Pages
pp. 151-158
Launched on MUSE
2019-01-02
Open Access
No
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