SOURCE: "The Conservative Mr. Justice Holmes," in The New England Quarterly, Vol. XXIII, No. 4, December, 1950, pp. 435-52.

In the following essay, Bernstein argues that Holmes's social and political philosophy were not ideologically liberal, but that Holmes was actually a classical conservative.

A cherished American myth is that Oliver Wendell Holmes, Jr., was a liberal. This notion, as baseless as the tale of Washington and the cherry tree, was born during the great jurist's life and persists in the national folklore since his death. Walton Hamilton wrote in 1941, "It has taken a decade to elevate . . . Holmes from deity to mortality."¹ The time has come to lay the ghost of "Holmes and Brandeis dissenting."

Holmes, in fact, was as profound, as civilized, and as articulate a conservative as the United States has produced. Although he eludes the neatly wrapped and labelled package, his views speak for themselves.

As a young...