TRIAL BY FIRE
When Oliver Wendell Holmes Jr. was buried at Arlington National Cemetery in 1935 on what would have been his 94th birthday, he was one of the most famous men in the United States—certainly one of the most famous justices ever to sit on the U.S. Supreme Court. His lone and prophetic dissenting opinions upholding free speech against government censorship, the protection of criminal defendants against mob law, and the right of the people to control their destiny by enacting social and economic reforms all still hold a venerable place in the annals of American constitutional law.
But on his gravestone, Holmes chose to place the words justice supreme court of the UNITED STATES below the title that had carried more meaning to him throughout his long life:
CAPTAIN AND BREVET COLONEL 20TH MASS. VOL. INF. CIVIL WAR
To historians of the Civil War, Holmes is most often remembered today for his stirringly poetic words in two Memorial Day speeches. “We have shared the incommunicable experience of war; we have felt, we still feel, the passion of life to the top,” he said in one of them, evoking the war’s deep effect on the young men who had gone off to fight in it. And in the other he spoke what may well have been the most famous line ever uttered about that terrible conflict: “Through our great good fortune, in our youth our hearts were touched with fire.”
At the Battles of Ball’s Bluff and Antietam, Holmes twice barely escaped death. Musket balls tore through his chest and neck, missing his heart, carotid artery, and spinal cord by an eighth of an inch. But his service in the Union army was not only a cherished memory and source of pride to him. For the next 70 years the horrors and lessons of war shaped in subtle yet profound ways his ideas about the law—above all, his insistence on tolerance for opposing viewpoints and on the right of each generation to govern itself.
Born into a privileged world of Boston society—the son of Oliver Wendell Holmes Sr., the celebrated physician, poet, humorist, and literary figure who coined the phrase “Boston Brahmin” to describe his class—Holmes came away from the war also with an appreciation for what practical men with practical knowledge could do and of the redeeming power of hard work and practical courage in everyday life.
“The army taught me some great lessons,” he remarked many years later to his young friend Harold Laski, the English political theorist and economist. “To be prepared for catastrophe—to endure being bored—and to know that however fine a fellow I thought
