Now that President Obama has ordered the closing of the prison at Guantatmo Bay, we should take a moment to consider how we stepped into the constitutional anomaly that created Gitmo. The story upsets some progressive-liberal iconography.

Now that President Obama has ordered the closing of the prison at Guantatmo Bay, we should take a moment to consider how we stepped into the constitutional anomaly that created Gitmo. The story upsets some progressive-liberal iconography.

The judge most responsible for the Gitmo situation was Oliver Wendell Holmes, Jr., prominent in the pantheon of civil libertarians. Shortly after the Spanish-American War, President Theodore Roosevelt was concerned that the Supreme Court might insist that all constitutional guarantees extended to our newly-acquired empire—in popular parlance, that “the Constitution follows the flag.” With a Court seat open in 1902, TR sought and obtained a pledge from Holmes that he would not apply this standard. Holmes then lied to the press about his secret meeting with the President. He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiians.

Thus we carved out special exceptions where the guarantees that the Constitution imposes on the federal government do not apply.

Holmes became a hero to progressives and liberals first for his 1880 book, The Common Law. His approach to the law here stressed its evolutionary, developmental, adaptability. Later theories of the “living constitution” often derive from Holmes. His most celebrated opinion came in 1905, when he dissented in Lochner v. New York. Here the Supreme Court overturned a state law that limited the hours that bakers could work, long regarded as the apex of “laissez-faire jurisprudence.” “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes quipped. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” referring to a prominent Social Darwinist of the day. But even more amusing was the fact that Holmes himself was the only real Darwinist on the Court.

In his superb recent biography, Al Alschuler concluded, “The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” “Holmes had a brutal worldview and was indifferent to the welfare of others.” He “sneered at all political and moral causes except eugenics, which he supported in an especially chilling form by advocating the execution of ‘everyone below standard.’”

In 1927, Holmes wrote the opinion in Buck v. Bell, which upheld the compulsory sterilization laws of the states, which ultimately resulted in the sterilization of about sixty thousand Americans. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” wrote the thrice-wounded Civil War veteran. “It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In another pithy aphorism, he concluded, “Three generations of imbeciles are enough.” As cruel as this opinion was, it was toned down from an even harsher version at the behest of Chief Justice Taft.

For most of his career, Holmes really didn’t believe that there were any constitutional limits at all to government power. He advocated the complete separation of law and morality, writing, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether,” he wrote, “and other words adopted which should convey legal ideas uncolored by anything outside the law.” He continued, “Manifestly… nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.” Essentially, he thought that the majority had the power to impose its will on the minority, for good or ill. Holmes himself confessed in 1919 that he had come “devilish near to believing that ‘might makes right.’” After the Second World War had shown the danger of such theories of unlimited governmental power, one law professor entitled an article “Hobbes, Holmes, and Hitler.”

Near the end of his judicial tenure, after the First World War, under the influence of Justice Louis Brandeis, Holmes discovered some regard for free speech as a constitutional value. In a 1919 dissent he wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas...that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” But Holmes never explained just why the Constitution compelled the free-market model for speech, but not for labor. And the standard that he developed—that Congress could suppress speech or writing if it posed “a clear and present danger” that they will bring about substantive evils—was one that proved remarkably flexible.

As the nation faces the challenge of protecting civil liberties in wartime, and of individual freedom in economic crisis, let’s hope that our judges don’t look to Holmes as a model.