Should the tide ever turn sufficiently for the friends of Western civilization tobeina position to write its history, it is a good guess that Oliver Wendell Holmes will take his place as one of the chief villains of the piece—the man, among Americans anyway, who was as responsible as any other for almost bringing the structure down. The single contribution of this strange little book by Francis Biddle is to remind us why this is so.
I say a strange book because there is no apparent reason why it was written—why Biddle, once Holmes’ secretary, once Franklin Roosevelt’s Attorney General, ever a dedicated partisan of Holmesian jurisprudence, imagined he would be advancing his hero’s cause by several dozen pages a) repeating admiringly the Justice’s most extravagant and vulgar attacks against Natural Law and the idea of eternal verities, and b) insisting that the wisdom contained in these aphorisms would have completely carried the day had it not been for the opposition of all Roman Catholics—concretely the Jesuit priests who teach at Catholic law schools! The manifest absurdity of suggesting that only “Catholics say that [general principles] come from God, and have a validity entirely independent of their human acceptance,” and so disagree with Holmes that such principles “are derived from the consensus of the community” need not be commented on here beyond noting that Biddle’s whole presentation rests on that assumption, and raising the question: What strategy, political or otherwise, could Biddle conceivably have had in mind in insisting on this silly lie?
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