Magazine December 31, 2009, Issue

The Curious Constitution of Oliver Wendell Holmes Jr.

Oliver Wendell Holmes, c. 1930 (Harris & Ewing/Library of Congress)

Oliver Wendell Holmes Jr. was appointed to the U.S. Supreme Court by Theodore Roosevelt, America’s first progressive president. He served from 1902 to 1932, and his name remains familiar to this day. There is good reason for that, as Holmes stands out among Supreme Court justices for his enduring influence on constitutional jurisprudence.

Holmes set forth the essence of progressivism as a legal theory, though he was not primarily a theorist. Instead, he was a practitioner, so we must distill from his many arguments and judgments a coherent account of progressivism as a distinctly legal — as opposed to philosophical or

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