1 See Kassan, , “Benjamin Nathan Cardozo—In Memoriam” (1974) 9 Is.L.R. 159 at p. 163.Google Scholar

2 Little, Brown & Co., Boston, 2nd ed., 1938.

3 Frankfurter, Felix, Of Law and Men (Harcourt, Brace and Co. Inc., New York, 1956).Google Scholar

4 Frankfurter, Felix, “Mr. Justice Holmes and the Constitution” (1941) 41 Harv. L.R.Google Scholar, reprinted in Frankfurter, Felix ed., Mr. Justice Holmes (New York, Conrad-McCann, Inc.) 46 at pp. 54–55.Google Scholar

5 See Kassan, , “Louis Dembitz Brandeis—In Memoriam” (1971) 6 Is.L.R. 447 at 452.Google Scholar

6 187 U.S. 606 (1903).

7 This amendment reads: “Sec. 1 … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

8 187 U.S. 606, at p. 608.

9 Frankfurter, , “The Constitutional Opinions of Mr. Justice Holmes” (1915–1916) 29 Harv. L.R. 683, 684.CrossRefGoogle Scholar

10 “Law and the Court”, speech at a dinner at the Harvard Law School Association of New York on 15 Feb., 1913, reprinted in Speeches of Oliver Wendell Holmes (Boston, Little, Brown & Co., 1913) 98–103.

11 198 U.S. 45, 65, 74 (1905).

12 Ibid., at p. 57.

13 169 U.S. 366 (1898).

14 Ibid., at p. 395.

15 198 U.S. at p. 57.

16 Ibid., at p. 59.

17 Pound, , “Liberty of Contract” (1909) 18 Yale L. J. 454.CrossRefGoogle Scholar Reprinted in Two Selected Essays on Constitutional Law 208, 231.

18 Judges 12:6.

19 198 U.S. 45, 74 at pp. 75–76.

20 66 U.S. 366 (1898).

21 See supra n. 7.

22 Hughes, , The Supreme Court of the United States (Long Island, Garden City Publishing Co., 1936) 50.Google Scholar

23 167 Mass. 92, 104 (1896).

24 Ibid., at p. 105.

25 Ibid., at p. 108.

26 Suggestive of a definite economic philosophy as these observations were, they did not quite convey the whole of it. Alongside these observations must be placed the ideas revealed by Holmes in a case—again in dissent—which is in a very real sense a companion to Vegelahn v. Guntner, though decided four years later, namely: Plant v. Woods (176 Mass. 492, 504 (1900)).

27 247 U.S. 251 (1917).

28 Re the battle preceding this appointment see Kassan, op. cit. supra n. 5 at p. 447.

29 247 U.S. 251 at pp. 271–272.

30 Ibid., at p. 278.

31 Ibid., at p. 281.

32 Lerner, Max, The Mind and Faith of Justice Holmes (New York, Modern Library, 1954) 166–67.Google Scholar

33 U.S. v. Darby, 312 U.S. 100 (1941).

34 These queries were asked by Benjamin Cardozo, the Chief Judge of New York, Court of Appeals, in his masterly contribution to Mr. Justice Holmes, op. cit. supra n. 4 at pp. 6–7.

35 250 U.S. 616, 624 (1919).

36 Ibid., at p. 621.

37 Ibid., at pp. 626–27.

38 Ibid., at p. 628.

39 Ibid., at pp. 629–30.

40 Frankfurter, Felix, “Mr. Justice Holmes and the Constitution” in Mr. Justice Holmes, supra n. 4 at p. 72.Google Scholar

41 Konefsky, Samuel J., The Legacy of Holmes and Brandeis (MacMillan, New York, 1956) 207.Google Scholar

42 For Holmes J.'s interpretation of the freedom of speech guaranteed by the Constitution, see the comments upon this case by Sir Frederic Pollock in (1920) 36 L.Q. R. 334. It will be of interest to note that Dean Pound and Professors Frank Sayre, Edward Adams (the Librarian), Zach Chafee and Felix Frankfurter, all of Harvard University, “signed a petition to the President of the United States to commute to lower sentences the heavy sentences which Holmes in his dissenting opinion so strongly condemned, though he could not do anything about it”. Felix Frankfurter Reminisces (Reynal and Co., New York, 1960) 176.

43 268 U.S. 652, 672 (1925).

44 Ibid., at pp. 666–5.

45 Ibid., at p. 665.

46 Ibid., at p. 669.

47 See supra at n. 35.

48 Supra n. 43 at pp. 672–3.

49 Ibid.

50 Ibid.

51 Ibid. It might be of interest to note, that following Holmes J.'s dissenting opinion, the appellant (Gitlow) was pardoned by Governor Smith of New York and then Gitlow broke away from the Communist party and became one of its bitterest critics. See Max Lerner, supra n. 32, at p. 324. Furthermore, in 1951 Frankfurter J. remarked, “… it would be disingenous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a decision” (concurring in Dennis v. United States, 341 U.S. 494, 517 at p. 541.)

52 United States v. Schwimmer 279 U.S. 644, 653 (1928).

53 Holmes-Pollock, Letters vol. 2, p. 230.

54 Ibid., at p. 653.

55 Ibid.

56 Ibid.

57 Ibid., at pp. 654–5.

58 This dissenting opinion became eventually the majority view of the U.S. Supreme Court. In the case Re Summers (325 U.S. 56, decided in 1945) Reed J., who spoke for the majority, relied on this opinion. Four Justices dissented in the Re Summers case. They were: Black, Douglas, who was Brandeis' successor, Murphy and Rutledge.

59 237 U.S. 309, 345 (1915).

60 Wyzansky, , “The Democracy of Justice Oliver Wendell Holmes” reprinted in Marke, Julius J., ed. The Holmes Reader (Oceana Publications, New York, 1955) 263.Google Scholar

61 Louis Marshall (1856–1929), American born U.S. lawyer and Jewish community leader best known for his efforts to extend religious, cultural and political freedom to all racial, religious and linguistic minorities. He achieved eminence as an appellate lawyer, and made many important contributions to legal and constitutional reforms.

62 261 U.S. 86 (1923).

63 See Max Lerner, op. cit. supra n. 32 at xliv, xlv.

64 Holmes, Oliver Wendell, Collected Legal Papers (1920) 258.Google Scholar

65 Dissenting in Truax v. Corrigan, 257 U.S. 312 at 344 (1921).

66 262 U.S. 390 (1923).

67 Ibid., at p. 399.

68 Ibid., at p. 401.

69 Ibid., at p. 412.

70 Ibid.

71 Max Lerner, op. cit. supra n. 32, at p. 318.

72 Holmes, op. cit. supra n. 64 at pp. 245–6.

73 “The Profession of the Law” in Speeches of Oliver Wendell Holmes (1934) 24–25.