As a federal judge has a far-reaching influence on American constitutional thought, Holmes's constitutional history and legendary life experience closely related. Generally speaking, the formation and development of thought is a slow and orderly process, but sometimes a creative leap, sometimes even unbelievable. Therefore, in this sense, the differences of thought and system.

The king of philosophy, legal Empire

   Many a long night life has great influence on Holmes mainly by the blood and fire test in the civil war, Harvard law school professional training as well as the "USA Law Review" writes reviews of the. For him, this period has become a source of legal history long river can be assembled. When the first wounded to Boorse cliff battle, Holmes was a young man just leave the campus; and when taking a skeptical attitude, with deep insight began writing "common law" and the calm and rational, Holmes was close to the age of 40. From a letter to a friend, can clearly feel, Holmes is always in a rare calm handling everything, this is the life experiences are reflected in the innermost true. Since then, he no longer wrote a book, but in the fifty year of the judge career written legal opinions of thousands, it is the legal opinion plastic as a judicial philosophy king, although not to regard it as right, but he still wore the crown.

 
Oliver Wendell Holmes

(1900Years2Month28Day, the Massachusetts Supreme Court Chief Justice)

   As a scholar, Holmes and "the metaphysical club" friends, belong to the intellectual activist, also by theThe 19 WorldEffect of documentary evidence doctrine of science, this kind of influence to his pragmatism tendency later.

   When faced with two different "law of road" -- judges and scholars --, Holmes chose the former.1872Years, he became the Massachusetts Supreme Court judge, from as "related rights / obligations or moral norms relevant rules of law as" steering "for the court will actually do what forecast" law. At the same time, the theory of deterministic and logic of blanking, in judicial practice, sometimes have to make even arbitrary choice.

   Holmes began to predict law theory "through legal ideas and judicial practice this kind of original". In Lochner v. New York (Lochner v. New York), he put forward the famous opposition, created a new jurisprudence -- a judge does not clarify the philosophical premise and social priority of self consciousness. The case became a major turning point in the course of the thoughts of Holmes, although on the surface, seems to be merely a "chance". It is this "accident", but in twentieth Century 30 in American jurisprudence launched a "legal realism movement".

Two, the great legal advice

   Since the1902Since, in USA Federal Supreme Court, Holmes is always a lone rider, until the arrival of Brandeis. In cases involving the first amendment constitutional cases, Holmes always carefully between autocracy and freedom. From Schenck v. American case "clear and present danger" standard to Abrams v. American case "great criticism", to target Los v. New York "the flame of reason", the constitutional cases prompted his thought experienced a bold but cautious evolution.

   During the first World War, Schenck leafleted the draftees through the mail, pointed out that the draft is caused by the capitalist system absurd mistake, that "don't give in to threats", take the peaceful resolution of conflict. On the basis of "anti spyware law" and relevant laws, Schenck for trying to guide the army revolt and hinder conscription was charged with the following facts: first, during the war and in an attempt to cause resulting in the army revolt, hinder conscription activities; secondly, conspiracy to infringe the interests of the state behavior; third, the illegal use of mail send with the intention of leaflets. The defendant First Amendment to the Constitution provides that "Congress shall make no law...... To reduce the speech or the freedom of the press ", according to defense.

    1919Years, in this case, Holmes on behalf of the Supreme Court has written legal opinions, points out that in general "the defendants in the expression of the leaflets to all content, originally should be within the scope of the constitutional rights of expression. However, the nature all behavior depends on the behavior of the environment. Even for the most stringent protection of free speech would not protect a, in the theatre that the fire caused panic in people". In such cases, he explicitly proposed the inspection standard, namely, "in any case, the problem lies in the use of words, whether or not to use in this environment, and whether it has such properties will result in clear and present danger, that those words would cause substantial harm", but Congress has the power to block substantive such harm through the development of legal way. In his view, this is "a close to the degree of the problem". Accordingly, the Supreme Court ruled, protect the Schenck not protected under the first amendment "freedom of speech" in terms of the specific circumstances, and in time of war, who had in peacetime can tolerate expression may also be punished.

   Soon after, in Abrams v. America cases, two defendants for printed and distributed two leaflets was convicted, leaflets aims to oppose the war, publicly accused the government sent troops to USA Russia and stop the Russian revolutionary activities. The two defendants were found guilty of the following facts: first, in the war with Germany to a conspiracy of government behavior during published defamatory remarks; second, during the war Conspiracy: intention of contempt of the government behavior of speech; third, conspiracy in the war against the activities of the government; the four, conspiracy to incite subtractive munition activities. Application of the case also relates to the first amendment to the constitution "freedom of speech" clause. The Supreme Court majority argued, "amendment to the Espionage Act" is constitutional, and therefore should be to maintain the guilty defendants. However, Holmes and Brandeis clearly expressed objection.

   In the case of disapproval, logic, along the Schenck case Holmes pointed out, "America government according to the Constitution by punishment or intention dangerous some obvious and adjacent speech, the speech will immediately lead to USA government according to some actual disasters" Constitution attempted to prevent, but this power "in the war period than in time of peace, because the war will always result in the absence of other risk period". At the same time, he is also aware of the danger during the war, unique and on other risk, "about the right of free speech principle is always the same. The only danger disaster exists or cause it to happen some intentional, and this makes the Congress may not involve personal rights under the set expression of opinion ", but in fact limit," Congress would not ban all attempts to change the national mental effort". Therefore, he thinks, the idea American government is against the historical, the common law that the first amendment to the constitution of the seditious libel behavior can enter into force. Accordingly, Holmes put forward his constitutional theory -- "when people have realized the time had overturned many fighting for faith, believe that their behavior relative to the base, they may even believe that, through the free exchange of ideas can better realize perfect people desire truth -- namely the best standard is thought whether can make its own competition in the market recognized that kind of persuasion, and, believe, the truth is the only basis on which the people's desire to do". Finally, he slightly regret that, "in the charges based on and decided against the defendant, the defendant also deprived according to enjoy American constitutional rights".

    1925Years, a socialist Gitlow "left wing manifesto for distributing" -- called for strikes and joint action to build socialism -- were arrested, according to the laws of the state of New York, Gitlow is found guilty, the reason is any advocacy of violent revolution theory of offence. The case also involves a state law is in violation of the first amendment to the constitution "freedom of speech" in terms of the problem. That the Federal Supreme Court majority party on the basis of "danger" standard, states have the right to prohibit which may endanger public safety of speech, so even if the speech is not any danger, still will be punished. In this regard, Holmes and Brandeis disagree.

   Holmes in the case Schenck case to the "clear and present danger" standard, and further explains: "this declaration is not only a theory, or a fan. Every thought is an incitement,...... Will declare themselves in order to get the world believe ", in the strict sense," and to instigate only difference lies in the degree of enthusiasm for the speaker to express ideas. Eloquence can ignite the flame of reason." Finally, he suggested to overturn the verdict.

   In the evolution of the thought process, with Holmes almost cold reason for different cases were conceptualized world clearly divided, classical language he uses is still often echoed in every constitutional scholars and federal judge ears.

On three, the later

   When President Roosevelt and his "New Deal" was American history a new scene, Holmes chose to withdraw from the wonderful stage. This can not let those imaginative people feel slightly regret, after all, is the history stage a dramatic colors. Legal realism later that Holmes is shaped and guided the American method, which described him as "model of mature man", although some exaggeration; as a radical critic, Al Schuler is regarded as a "legal source of evil"; and Posner thought he was "America jurisprudence only tutor class people". However, no matter how, Holmes still can not predict the 30's of the twentieth Century constitutional reform first remember later destroyed his reputation.

   In broad sense, Holmes's intellectual heritage experienced a boom, shake, collapse and revival process. Perhaps, the formation of great thought and expression is unique and cannot be fiction, but admit of no doubt is, floating track Holmes tradition has in the history of thought and wrote a very attractive canto.

[Note: the original published in Gao Quanxi editor: "Grand View" (No.7Volume), publishing house of law2011Year edition, No.312~317Page. ]