How Holmes Got the Constitution Wrong
A webinar lecture by Paul DeHart
July 30, 2025 12:00 PM EDT
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According to Oliver Wendell Holmes—sometimes considered the second most important jurist to have occupied a seat on the Supreme Court—the Constitution embodies no particular moral or economic theory. Rather, it serves as a device for translating majority will into law, whatever majority will happens to be. He famously told Harold Laski that if his fellow citizens wanted to go to Hell, he would help them. The Constitution, as he saw it, aimed at no substantive ends.
Over and against this, James Madison viewed the Constitution as an instrument for establishing constrained majority rule. In particular, the Constitution aimed to prevent factitious majorities animated by narrow interest or the passion of the moment—such as ambition or avarice—from dictating public policy and law. Indeed, he defended long terms for Senators as a safeguard that allows the Senate to resist passionate and interested majorities that might animate the House “until reason, justice, and truth can regain their authority over the public mind.” And he excoriates democratic Athens for lacking such “a safeguard against the tyranny or their own passions.” Madisonian constitutional thus favors long-term, broadly distributed, deliberative majorities over factitious ones. And this favoring of long-term, deliberative majorities over narrow, factitious ones is only explicable on the supposition of a real common good and an objective moral law of right and wrong of the very sort Holmes, quite wrongly, considered the Constitution to reject.
