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Books illuminate U.S. values in law, life

By Albert W. Alschuler
The University of Chicago Press, 325 pages, $30

By Jimmy Carter
Simon & Schuster, 284 pages, $26


Readers will enjoy the distinctive perspective on law and values provided by these two very different but equally engaging books. Professor Alschuler deconstructs the myth of Justice Oliver Wendell Holmes by arguing that Holmes is a false hero whose skepticism contributed to our current culture of law without values, that is, without any objective concepts of right and wrong.

President Carter reconstructs his boyhood in rural Georgia, where he learned the lasting values that have sustained his political and public career and enhanced his international reputation as a persistent advocate of human rights and opponent of human wrongs.

Both books are noteworthy for their unexpected perceptions. The liberal “Yankee from Olympus” justice became a harsh skeptic after his service as a soldier in the Civil War. Although some of his decisions were progressive, he also “with pleasure” upheld the sterilization of “imbeciles” and sustained the white power structure against challenges by black plaintiffs. Alschuler argues that Holmes lost his idealism in the war. From then on, “right could never be more than the will of the strongest,” what a given crowd will fight for. This most influential Supreme Court justice subscribed to a power-focused philosophy: Winners win. Law without values.

Carter, the Christian Southern governor and president, explains that the Civil War was “a living reality in [his] life”; he “grew up in one of the families whose people could not forget that we had been conquered.” Carter narrates apologetically how the “separate but equal” standard was lived in the South, where segregation and the dominance of whites were accepted facts until the post-Holmes Court changed the legal landscape. Nonetheless, many of the people who profoundly influenced the president’s childhood were black. His conclusion, and one of his goals of writing the book, is to remind readers that his life was “shaped by a degree of personal intimacy between black and white people that is now almost completely unknown and largely forgotten.”

Both authors avoid traditional biographical or autobiographical style. For example, neither book is chronological. Many of the chapters can be read as independent units. You could begin with Chapter 3, “Would You Have Wanted Justice Holmes as a Friend?”(Probably not.) Or if you begin with “Learning About Sin” in Chapter 9, you would discover that “lying was the ultimate crime” in the Carter family house, just as it was years later in the Carter White House.

The Holmes book has an analytical order, in which chapters dedicated to the justice’s battlefield experience, legal opinions, his book (The Common Law) and his influential article (“The Path of the Law”) provide evidence of Alschuler’s basic argument. Alschuler’s thesis is that the revered Holmes “did not bring something new to law; [he] took something away,” namely morality, an objective sense of right and wrong. Moreover, the historical context of the Alschuler book is not really Holmes’ era, but our own. The author wishes to convince the heirs of Holmes, the pragmatists and the moral skeptics who dominate American law, that “we have walked Holmes’ path and have lost our way.” In other words, morality still exists, and the “brooding of the skeptics [is] adolescent and destructive.”

Some NCR readers may remember that despite the general “beatification” of Holmes in American law, Catholics were always among his fiercest critics. Alschuler acknowledges that Catholic scholars recognized “the darkness of Holmes’ jurisprudence.” Alschuler also notes that the conservative Justice Pierce Butler, the only Catholic member of the Supreme Court, dissented from Holmes’ notorious opinion in the sterilization case Buck v. Bell.

Carter’s book has a vivid factual narrative that emphasizes the lessons learned from farm and family. The chapters focus on different features of rural and family life. Carter’s account of the Depression’s effect on farm life, from the tramps who stopped by the farm looking for food to the cotton crops that were destroyed at the order of the government, is especially compelling. Carter’s Democratic father never forgave Roosevelt for the cotton and never voted for him again. The son also learned a lesson about Washington: “This was my first picture of the difference between political programs as envisioned in Washington and their impact on the human beings I knew.”

On a lighter note, we learn that Georgia politicians wore wide red galluses; the best customers ordered boiled peanuts, and a “dope” (Coca-Cola); and “blue john” (skim milk) is good for cereal and cooking.

The professor’s book is much more academic than the president’s. Non-lawyers may need to take occasional breaks from the book’s detailed legal analysis. Keep reading, however, for the author’s consistently interesting insights about Holmes’ influence on the morals of our legal system.

Leslie Griffin is a professor at Emery University School of Law, Atlanta, Ga., and co-editor (with Charles E. Curran) of The Catholic Church, Morality and Politics.

National Catholic Reporter, March 15, 2002