[captions Copyright National cable satellite corp. 2023] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] in partnership with the library of congress, cspan brings you books that shaped america. Our series explores key works of literature that had a profound impact on the country. In this program, the common law. Written in 1881 by Oliver Wendell holmes junior all of her Wendell Holmes junior grew up surrounded by writers and thinkers such as ralph waldo emerson. When the civil war began, folks answered president lincolns call for volunteers homes answered the call and volunteered. At the end of the war, he enrolled in Harvard Law School and embarked on a legal career. In 1881, a summary of lectures he had given was published as the common law. Balancing legal principles with realities of the emerging modern era. He later served on the u. S. Supreme uras remembered for his writing and his jurisprudence. The common has remained in print and continues to be cited, yet remains controversial. Welcome to books that shaped america, our cspan series that looks at how books throughout our history have influenced who we are today. In partnership with the library of congress, this 10 week series looks at different eras, topics, and viewpoints. We are glad you are joining us. So far in this series, we have explored americas expansion and weve looked at the issue of slavery. Tonight, its a look at the development of american law through the eyes of Oliver Wendell holmes junior and his book, the common law. Written in 1881, it was unique for its time and controversial. He would later go on to serve on the u. S. Supreme court for three decades and his words continue to influence the legal world and our lives today. Our guest tonight, to help us learn why the commonlaw is a book that shaped america is jeffrey rosen, president and ceo of the National Constitution center. Mr. Rosen is also an author and writer and clerk for a federal Appeals Court judge. Jeff, welcome back to cspan. What was holmesobjective in writing the commonlaw . He had come back from the civil war where he was wounded three times. He believed in abolitionism and equality, and seeing the carnage at antietam where he almost died in the Bloodiest Day in American History, he lost all his ideals and almost seized nihilism in despair. He looked to systematize the law to come up with some way of understanding that would give him meaning. He tried it a bunch of different ways, and found it goes back to english law and german law and roman law. He had thought there was a logic to the law that developed, but he discovered that was only part of its development. He discovered the historical purpose of the law was balanced against its contemporary relevance, how did it Serve Society . The complexity and brilliance of the insight that might be adopted for one reason hundreds of years ago but retain for another reason today. And probably the most famous quote from the common law. The life of the law has not been logic, it has been experience. Almost a radical thought for a generation that had been raised on legal formalism, that had been taught to believe that simply by applying certain categories of law could judges act without the intervention of policy considerations, empirical study, and the like. Holmes is describing the way the law actually is, and the specificity and precision of his examples stick in the mind. Lets just put one on the table because it is so striking. He says, why is it that a neighbor, when he buys a piece of land that has an easement on and which allows you to cross the property even if you dont own it, get to keep that easement even if the original easement owner took it without proper Property Rights . Holmes says surprisingly the reason for keeping an easement, the land was personified come of the way they used to personify actors when a crime took place. Nowadays, he said the reason it allowed the easement to run, otello would be much more complicated if you bought a piece of land and were not sure if you get to keep the easement. The original personification has given way to the Public Policy. The constitution at this point, in 1881, 94 years old. How sophisticated was our body of law . Constitutional law was not very well developed. The famous marbury versus madison and dred scott cases, and he had decided not to apply the bill of rights to states after the civil war and would that. Almost 100 years to do so as a result, the constn wasnt fully worked out. Ho this is a period when the Supreme Court begins to invoke the constitution to strike down economic regulations. Maximum wage and minimum our laws, and there is a big debate brewing about whether or not the judges are sustaining their own policy prejudices. Host our partner in this series is the library of congress. The library of congress in 2013 developed a list of 100 books that shaped america, and from that list, these are not the best written, they are not classics, but they are books found on Public Policy and thats why tonight we are looking at the common law. The original 1881 version of the commonlaw, the Library Rights that this book is acknowledged as a classic of american jurisprudence, a concept, the law developed and is interpreted not based on what is written legislation, but also based on practice and post experience. Jeffrey absolutely, and that reminds us that the commonlaw law gave rise to what we call illegal pragmatism, the idea that the law should serve the practical purposes of society that current majorities actually embrace. And of course pragmatism embodied today on the Supreme Court by former Justice Stephen breyer is the opposite of formalism embodied by justice like justice neil gorsuch. In that sense, holmes was at the center of the debate that continues to this day. Host what was the reaction in 1881 when the commonlaw was published . Jeffrey i think we could call it respectful to weldment. Bewilderment. It was delivered as a series of lectures and everyone acknowledged that holmes gave a deep and real contribution to systematizing the commonlaw and from the beginning, many people found it tough reading and therefore host jeff rosen, is the commonlaw still taught in law school . I had it assigned in law school. I still remember the copy i had, a brown paperback cov with a gavel on it. I mustveried to make my way through it, but i dont remember a word of it. It wasnt until you gave me the homework assignment of talking about the commonlaw, that i set out to read read reread it. I found it as arduous as many people have before. So therefore deafening took some close reading, but i think it is just an example of the fact that it is a book that is much respected but is not well studied. Host why is it arduous reading . Jeffrey it is beautifully written and it has pithy aphorisms which live in the mind. It is arduous because of the nuance and specificity of its parsing of history and Public Policy. And also because it is essentially a book of private law, torts and contracts and bailments. Many of these causes of action which have been lost to history, and which are very fact specific. And although holmes describes general principles, he doesnt do so in a way that is heavyhanded or designed to stick in the mind. Even in answering your question, i think it is completely unique in its common nation of clarity and opacity. Host does it hold up today . Jeffrey it is said that law has been shaped more by Public Policy and pragmatic concerns than by more formal rules. Descriptively seems correct as a matter of much of legal history, and in fact, the book went on to influence the legal school of the 20th century which agreed with holmes that judges are essentially balancing policy iderations, rather than just being grounded by formal rules. A leader of that Movement Held up holmes as a hero, one of my teachers in law school also embraced it. At the same time, it is hotly contested, and as i said, the Supreme Court right now has a majority of formalists, of strict constructionist who would entirely reject holmes principles. He thought it was policy soaked, and in addition, the holmes approach to the constitution, he thought that judges should almost never strike down laws unless people with different perspectives overwhelmingly would agree that the law was not constitutional. It came from his profound skepticism and his desire to not impose his own views upon the country. That deference doesnt have much of a consistency among liberals or conservatives on the court today. So once again, tremendously ntia but not always followed. Host Oliver Wendell holmes wrote in the commonlnnot be dealt with as lipid as if it contained the axioms and corollaries of a book of mathematics. Our history is the story of our development, but the changes and historical purposes changed, and the law lives. Jeffrey he was not a believer in the dead hand of the past. He said history is a living thing, and therefore you cant understand law by just looking at the axioms, you have to look at what actually happened. Host so the in tipperary argument that the constitution is a living document, etc. . Jeffrey yes. Of course with holmes, it is always complicated. By saying the law is a living document, he didnt by any means say it was up to judges to just make up whatever they thought was good policy and do that. He was really attentive to who was best equipped to ensure that the law lived. We just have to keep returning to what was so profoundly true, the constitution was made for people of fundamentally different points of view. Isnt that a beautiful sentiment in these polarized times when people are so convinced, my way or the highway. But he saw the constitution as of framework for peacefully resolving disagreements. If she thought if you didnt allow the law to solve those disagreements, open war would ensue. Legislators generally should take the first crack at it, and thats why he cant be caricatured as just a dead hand guy or a living constitution guy. Host Oliver Wendell holmes junior was born in 1841 in boston. He graduated harvard in 1861. The civil war started 18611865. He wrote the commonlaw in 1881, and he was chief justice o the massachusetts Supreme Court fo three years prioro being appointed i teddy rooselt to the Supreme Court, where he served for 30 yrs, and he died three years after his Supreme Court service ended in 1934. A biographer of Oliver Wendell holmes junior, talking about his importance in american jurisprudence. He was buried at Arlington Cemetery in march 1935 on the day that wouldve been his 94th birthday. Not only that, he did enough in those 94 years to feel four or five normal peoples lives. As a young Union Officer in the civil war right out of harvard, he saw almost every major battle that the army of the potomac bought in the first three years of the war. He was wounded seriously three times, twice, nearly fatally. As a pioneering legal scholar, he wrote what is still considered one of the most important and significant books in the history of legal scholarship, the common law. And it wasnt only a milestone in legal scholarship. It was one of the most important intellectual achievements in any field by an american in the 19th century. It really helped put american scholarship on the map. It earned the Great Respect of british scholars, who said america is beginning to surpass britain. Host thats a biographer of Oliver Wendell holmes. If youd like to learn more about the life of Oliver Wendell holmes, our companion podcast of this program, you can see the little qr code on the screen right now. Go ahead and get your phone out, we will leave it up long enough that you can get your phone out and click that and you can listen to the companion podcast. Jeff rosen, he talked about the importance of this book, a book that was it a book that had a delayed reaction and a delayed influence in American History . Host i think it was jeffrey i think it was, and i want to say right off that his biography is just wonderful, it is vivid and true. If listeners are not quite ready to jump into the commonlaw, which they should read as well, it did have a delayed reaction, and he is correct that english legal scholars acclaimed it, and boston lawyers, but it wasnt until after holmes joined the supreme coat Supreme Court and became such a revered figure and had a constituency that was rooted in the new republic magazine, with people like Felix Frankfurter and learned hand. He became not just a legal scholar or a myth, the yankee from olympus, and then his book became more interesting and found its greatest audience then. Host tonight it is the commonlaw bought Oliver Wendell holmes junior. We want to hear from you, get your questions and comments ready for jeffrey rosen, president and ceo of the National Constitution center. If you want to send a text message, please include your first name and your city of origin and send it to this number. We will begin taking those in just a few minutes. Jeff rosen, we mentioned that you are also an author and you just finished your eighth book. What is it . Jeffrey im so excited to share with you, its called the pursuit of happiness writers inspired the lives of the founders and defined america. Over covid, i decided to read the books on Thomas Jeffersons reading list that he said inspired his understanding of the pursuit of happyness. These are books like seneca and marcus are really us, john martin and frenchs hutcheson. Francis hutchinson. What i read was a revelation. Happiness wasnt feeling good, it was the pursuit of virtue, not the pursuit of pleasure. I set out to see how they applied this in their lives. They thought constantly about their efforts to achieve mental selfmastery, tranquility, to use their powers of reason to overcome their passions and emotions so they could be their best self and serve others. It was a wonderful opportunity to try to travel into the minds of the framers, and im so excited to share it. Host is it accessible to the average reader like myself . Jeffrey i hope so, that was the goal. The idea was to share it was an unusual practice to wake up every morning before sunrise and read his books of moral philosophy that i had never encountered. I have been so privileged to learn from Great Teachers at great universities. Moral philosophy at the core of reading of kids and adults throughout the 19th and early 20th century fell out of the curriculum when i was in college. They are so illuminating and changed about thought about the founders and about how to live. The goal of the book is to share the light with others and hope that other people will be inspired to read them too. Host did the title come first, or did the title follow the writing . Jeffrey the goal of the book is to figure out what exactly did the founders mean by that famous phrase . To my great surprise, there was not that much writing about this. Jefferson property was considered an inalienable right, but the idea of the pursuit of happyness as the pursuit of virtue, which the founders talked about constantly, and the sources they drew on talked about it constantly. They include not only those philosophers but legal writers like like stone, or religious writers, constantly all these people use the phrase the pursuit of happyness. There always talking about it as a quest for emotional selfmastery. A combination of figuring out where the phrase came from but most importantly, how it applied in the founders mine, how they lived up to its ideals are not, how they would talk about it and chastise themselves for not being virtuous enough. Host we look forward to seeing that in february of 2024, the pursuit of happyness. In 1881, the commonlaw and Oliver Wendell holmes junio thats give you a snapshot of what america was like in 81 there were three president s that ye. Rutherford b hayes, james garfield, and chester arthur. E population a little bit more than 50 million people. At least 20 law schools were in operation. The first womens practice law, 1869, and reconstruction was going on at that time. Did that affect his career, the civil war service, did it affect his career throughout his life and reconstruction . Jeffrey this of course is a Central Development in american in constitutional law. Holmes colleague was affected by his civil war experience. He wrote the dissenting opinion in plessy versus ferguson, and also objected to the courts efforts to strike down landmarks of reconstruction, including the Civil Rights Act of 1875. By the time holmes joined the court, troops had been withdrawn from the south. Holmes didnt have the opportunity to pass on the central landmarks of the reconstruction, but he did in his service acquiesce in some very shameful opinions that poured into the goals of reconstruction, allowing alabama to disenfranchise all black people simply by using literacy tests and full taxes. This is an example of its darker side, holmes said if alabama is perpetrating a fraud on black voters, we dont want to be a party to the fraud by trying to stop it, but then he said more directly, its going to have to come from the political branches because we judges are powerless to change it. That reminds us that holmes, in his great devotion to deference into allowing majorities to work their will in the political process, was not a vigorous enforcer of Constitutional Rights