The Second Greatest American

By Daniel Kornstein

The extraordinary wartime incident at Fort Stevens fascinates us. Pause for a minute and just think about it. A twenty-three-year-old American soldier screams at the president of the United States in the midst of a battle, calls him a damned fool, and gets him out of harms way. And then, with bullets whizzing by, they both proceed as if nothing unusual happened. All in a days work. Nothing special. No medal, no White House ceremony, no photo op. Nothing. What a scene! It is almost too fantastic, too dramatic to be real, too amazing to be true. A movie director like Steven Spielberg could do wonders with it. Imagine the cinematic possibilities. Daniel Day-Lewis could reprise his role as Lincoln, and Jake Gyllenhaal or Ryan Gosling could play the youthful Holmes. It would be a box office hit, a patriotic classic, and what Variety would call socko boffo.

• Language: English
• Publisher: AuthorHouse
• Release date: Jun 15, 2017
• ISBN: 9781524694029

Daniel Kornstein

DANIEL KORNSTEIN practices law in New York City at the firm of Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, where he is a partner. He has coupled a busy and varied civil litigation law practice with writing about the law. A past president of the Law & Humanities Institute, Kornstein has been called "a lawyer as philosopher, historian, as humanist" (Super Lawyers Magazine New York Metro 2012), whose work is "legal writing at its very best, legal writing as literature, his essays inspire us" (New York Law Journal); "a testimonial to cultural literacy at its best . . . gracefully written" (Choice); "the distinctive voice of an American lawyer [who] speaks to our era in the polished cadences of an experienced advocate" (Yale Journal of Law and Humanities). His writings have been cited by several courts, including the U.S. Supreme Court.

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Published by AuthorHouse 06/14/2017

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ALSO BY DANIEL KORNSTEIN

The Music of the Laws

Thinking Under Fire: Great Courtroom Advocates

and Their Impact on American History

Kill All the Lawyers? Shakespeare’s Legal Appeal

The Elsinore Appeal (co-author)

Partial Verdicts

Unlikely Muse: Legal Thinking and Artistic Imagination

Something Else

Loose Sallies

"[F]ighting in the Civil War had made a man of

Oliver Wendell Holmes, Jr, the law made him a great man —

perhaps, after Abraham Lincoln,

the second greatest American."

— Joseph Epstein

Why I Am Not a Lawyer (2003)

Contents

Get Down, You Damned Fool!

Introduction

Hero Or Villain?

Chapter One

Will No One Follow Me?

Chapter Two

Law’s Pivot

Chapter Three

The Holmes-Gödel Theorem

Chapter Four

Felt Necessities, The Constitution, And The Problem Of Standards

Chapter Five

A Touch Of The Poet

Chapter Six

Freedom For The Thought That We Hate

Chapter Seven

Renaissance Man

Chapter Eight

Love And Creativity

Chapter Nine

The Old Master’s Voice

Chapter Ten

Icons Beget Iconoclasts

Chapter Eleven

Get Him Back Here

Chapter Twelve

Final Verdict

Select Bibliography

GET DOWN, YOU DAMNED FOOL!

The acrid smell of gunpowder hangs like a heavy, pungent mist in the air; puffs of smoke trickle up from enemy rifles; the rattle of gun fire and the louder roar of cannon disturb and punctuate the warm afternoon. A sharp, insistent voice suddenly breaks in on the rude sounds of war.

Get down, you damned fool, before you get shot! The shrill warning rises above and slices through the smoke, smell, din, tumult, and confusion of battle.

A war-hardened, battle-scarred, twenty-three-year-old soldier instinctively barks his urgent command at a much older, tall, seemingly reckless civilian dressed in a signature black suit and high stovepipe hat. The civilian has never seen a real large-scale battle before, but, with his six-foot-four-inch frame, makes a nice, tempting target for enemy sharpshooters whose bullets whiz close by.

The concerned soldier, though young, is even then a savvy combat veteran. He has been fighting in the infantry for three long years. He knows what he is talking about, knows what it is like to be in the line of fire. In this same awful war, he has already been shot, not once, not twice, but three times, almost killed too, and has seen many of his close friends shot, maimed, and killed. Those searing experiences would scar him for life.

Get down, you damned fool, before you get shot!

The curious, somber civilian is not used to being talked to this way, in such an imperative and irreverent voice (except perhaps occasionally by his unstable wife). Cool, careless for his own welfare and personal safety, he stands on a low parapet to get a better view of the fighting. His lined, sad face, newly trimmed with a scruffy, scraggly beard, looks worn by worry. His sunken, hollow eyes seem tired, reflecting the strain of late nights spent reading reports of the war’s progress and the depressingly long casualty lists. He is dangerously exposed on the parapet of a low earthworks fort, about five miles from the White House, under vigorous attack. Rifle fire has already killed other men only a few feet away, and wounded an Army surgeon standing right next to him.

The blue-coated young veteran, grim faced and horror stricken, his eyes wide with anxiety, considers grabbing the civilian’s arm and pulling him to cover. Luckily, he does not have to do so. The foolhardy civilian listens, obeys, and gets down. Safe now, the somewhat amused civilian speaks to his rescuer, whose military rank he can tell from the two silver bars on the soldier’s shoulders.

Captain, I am glad you know how to talk to a civilian. With these words, the lanky civilian, a hint of a wry smile starting to decorate his otherwise deadpan face, thanks the straight-talking, fast-acting soldier. More aware of his surroundings now, the civilian can see for the first time that the soldier is almost as tall as he is, especially with his campaign hat on.

The youthful officer himself is, at one hundred thirty-six pounds, thin from his war wounds as well as from years of army food and sometimes violent stomach trouble, including a bad bout of dysentery, a disease that would kill forty thousand men during the war. He has dark brown hair, gray-blue eyes, and a wispy mustache that will eventually grow into one of the most luxurious and famous handlebar mustaches in American history. With bullets flying around them all the while, the two men both go about their business until the battle ends in a Union victory that stops the Confederates from taking Washington.

Soldier and civilian, separated by more than thirty years in age, meet then under trying and dangerous circumstances. July 11, 1864 is hot and uncomfortable. The place is Fort Stevens, part of the extensive fortifications built around Washington during the Civil War. Located near Silver Spring, Maryland, it guards the northern approach to Washington.

General Jubal Early and twenty thousand of his Confederate troops attack. Ignoring concerns for Washington’s security, General Ulysses Grant has stripped the capital of many well-trained troops to lay a siege on Petersburg and Richmond, the Rebel capital. Hoping to divert Grant’s troops from Richmond and to break through to poorly defended Washington, General Robert E. Lee has sent Early up from Virginia to invade Maryland and bear down on Washington from the north. On seeing Early’s infantry advance, the civilian, whose favorite play is Shakespeare’s Macbeth, might well have been reminded of Birnam Wood coming to Dunsinane.

This brief encounter at Fort Stevens is the only time the two men — this alert young soldier and this careworn civilian — ever meet. They have never met before and will never meet again. The soldier may not at first have known whom the civilian was, having acted reflexively when he saw, out of the corner of his eye, the civilian’s danger. But then he does recognize him. How could he not? The civilian is a famous man, probably the most famous man in America at the time, the controversial leader of his war-torn country. For sure, though, the civilian does not know the name of the soldier, a man who has not yet made his mark in the world, not yet won his spurs.

The civilian saved from being shot that day in 1864 is Abraham Lincoln, sixteenth president of the United States, and the soldier’s commander-in-chief. Concerned about the capital’s security, Lincoln went to Fort Stevens that day to inspect Washington’s defenses. It is the only time in United States history (except in a Hollywood version) that a sitting president came under enemy fire. Had Lincoln been killed or captured, little more than a hundred days before the upcoming election, who knows how American history would have turned out?

But instead Lincoln will go on to oversee the final military campaigns that would end the horrible war and he would plan how to bind up the divided nation’s wounds — until he was struck down at age fifty-six by an assassin’s bullet less than a year later. Unfortunately for the history of our country, our brash but protective young soldier was not there that night in Ford’s Theater to save Lincoln once again.

The war-weary, impertinent young soldier who speaks his mind so directly and so imperatively that July day in 1864 to the president of the United States will one day be well known too. He is Oliver Wendell Holmes, Jr., a captain in the Union Army and aide-de-camp to a general at Fort Stevens. He is not yet famous, although his father is Oliver Wendell Holmes, Sr., a famous Boston physician turned poet-writer admired by Lincoln. The younger Holmes, his three-year enlistment up, will leave the Union Army a few days after his memorable run-in with Lincoln, go to law school, and become the most beloved, the wisest, and the most articulate judge in American history. Like Lincoln, Holmes too will come in time to be immensely influential and embody the best in American values, though both men have flaws and will garner criticism and be somewhat controversial. Neither Holmes nor Lincoln would have been possible, would have been what they became, without the Civil War.

The incident at Fort Stevens supplies a good springboard for starting to consider whether Holmes, from several perspectives, is a hero for our time. A subject of perennial interest to anyone with even an average curiosity about American history (especially intellectual history) and law, Holmes is a figure worth pondering.

INTRODUCTION

HERO OR VILLAIN?

The extraordinary wartime incident at Fort Stevens fascinates us. Pause for a minute and just think about it. A twenty-three-year-old American soldier screams at the president of the United States in the midst of a battle, calls him a damned fool, and gets him out of harm’s way. And then, with bullets whizzing by, they both proceed as if nothing unusual happened. All in a day’s work. Nothing special. No medal, no White House ceremony, no photo op. Nothing.

What a scene! It is almost too fantastic, too dramatic, to be real, too amazing to be true. A movie director like Steven Spielberg could do wonders with it. Imagine the cinematic possibilities. Daniel Day-Lewis could reprise his role as Lincoln, and Jake Gyllenhaal or Ryan Gosling could play the youthful Holmes. It would be a box office hit, a patriotic classic, what Variety would call socko boffo.

Fact or Illuminating Myth?

Some skeptical people are uncertain whether the incident actually happened or is simply a legend; or, if it happened, whether Holmes was indeed the soldier who yelled at the president. No matter. Local newspapers reported it at the time. Holmes spoke of it to several people, and even said much later how embarrassed he was to have talked that way, so disrespectfully, to the president. During the thirty-odd years Holmes lived in Washington, he visited the site of Fort Stevens a number of times. And some of our best Civil War historians, including James McPherson in his the Pulitzer Prize-winning Battle Cry of Freedom, record the Fort Stevens incident as fact. Today a marker identifies the spot where the incident occurred, with a photograph of a hundredth anniversary reenactment.

In any event, even legends and myths have their purpose. As Joseph Campbell has taught us, myths define us and inspire us, they inhabit us deeply and explain to us who we are. They tell us something important about their subject and about ourselves. When we are children, and also when we are adults, we learn our deepest truths through myth. More than mere lies, myths simplify the past, smoothing away contradictions to offer reassurance to the present. Myths capture how our own lives are connected to the universal sacred realities. Every nation seeks guiding principles from an imaginary set of wiser and nobler ancestors.

Legendary anecdotes can light up a life. Plutarch, the most famous biographer of ancient times, uses revealing anecdotes to delineate character — a light occasion, a word, or some sport — because they make a man’s disposition more plain than famous battles won. Whether or not apocryphal, anecdotes may supply keys to the deeper truth of the mind and heartbeat of the individual in question.

Regardless of historical accuracy, then, this 1864 incident, mythical or not, is still highly illuminating. We want it to be true, we wish for Holmes to have spoken roughly to Lincoln (not recognizing whom he was talking to) and perhaps saved his life. At their best, myths can inspire us to do better, can, as Lincoln put it in his First Inaugural, help us seek the better angels of our nature. Informal, unplanned, unrehearsed, the Fort Stevens incident is both symbolic and emblematic of two of the most extraordinary individuals in United States history. It links them memorably and reveals, under unexpected, stressful conditions, telling aspects of their true personalities as well as hints at the reasons for their lasting importance. It makes Holmes as a young man a genuine hero of the great American epic.

The Epstein Thesis

Yoking Lincoln and Holmes together this way prompts other thoughts and insights, some of them quite surprising. Joseph Epstein, former editor of The American Scholar magazine and one of our finest essayists, links Lincoln and Holmes in just such an unexpected way in a 2003 essay entitled Why I Am Not a Lawyer. Epstein writes that fighting in the Civil War had made a man of Oliver Wendell Holmes, Jr., the law made him a great man — perhaps after Abraham Lincoln, the second greatest American. That simple but startling sentence, written in the safety and comfort of Epstein’s peacetime study almost one hundred fifty years after the Civil War, is itself almost as extraordinary and as fascinating as the incident at Fort Stevens.

There we have it: Oliver Wendell Holmes, Jr. is, according to Epstein, perhaps after Abraham Lincoln, the second greatest American. Even qualified by the word perhaps, Epstein’s statement grabs us and cannot be ignored or passed over without comment. It raises a host of profound questions and prompts a variety of reactions. It craves attention and begs for further scrutiny.

So let’s scrutinize it. The first part of Epstein’s statement is bland and goes down easily — war does turn boys into men — but the last part of the sentence jolts us. It is provocative, controversial, highly debatable, stimulating, original in the extreme. Many of us might agree with labeling Lincoln as the greatest American, but Holmes as the second greatest? Get serious.

We want to know, we need to know, why Epstein thinks Holmes may be the second greatest American and what led him to that surprising conclusion. Perhaps he is merely being contrarian. Maybe he knows something the rest of us do not know. We yearn to find out.

For decades Epstein’s smoothly composed, witty, well-informed writings on a host of subjects have stimulated, entertained, and enlightened readers. A genuine intellectual with wide-ranging interests and an independent, politically conservative frame of mind, Epstein has both pleased and challenged readers to shake off their mental lethargy and to think in new ways about familiar subjects. He is a superb writer who has good judgment and thinks for himself. He is very much his own man. As a result, if Epstein says something that strikes us at first as weird and jarring, as going against the grain, we probably ought to examine it more carefully, with an open mind, and reconsider our own views from a new perspective. We should test what he says and see what happens. After all, he may just be right.

What is Greatness?

Rankings of the greatest are a popular pastime. We rank everything, from athletes to stocks, from doctors and lawyers to actors and singers, from people’s looks to airlines. We make many lists of the best and the greatest. In sports, we often label someone as the greatest this or that, or vigorously debate the label. Many of us might regard Michael Phelps as the greatest swimmer and Michael Jordan the greatest basketball player of all time. But who was the greater tennis player, Chris Evert or Martina Navratilova? And is Serena Williams the greatest ever? In ice hockey, who was the greatest: Gordie Howe or Wayne Gretzky or Bobby Orr? Was Sandy Koufax the greatest pitcher in baseball? Who was second greatest? Guinness, with its Book of World Records, has made an institution of the greatest in many categories. And the late Muhammad Ali, of course, simply called himself the greatest.

But how do we determine who is the greatest in any category? What criteria do we use to measure greatness? Some categories have more or less objective criteria. In sports, for instance, performance can be measured by time or statistics (e.g., the fastest runner, the slugger with the most home runs, the pitcher with the lowest e.r.a., the batter with the most hits). The highest, fastest, most of something may be easy to tell. But some categories, perhaps the most important ones after all, are more subjective, less scientific, and turn more on judgment and shared values than on common metrics. Particularly is this so when assessing the quality and legacy of a person in society.

In those more social fields, greatness also involves influence. Each year, for instance, Time magazine features and profiles a person [or group, idea, or object] of the year not because he or she is the best or the greatest, but because he or she for better or worse … has done the most to influence the events of the year. Similarly, in 1998 Random House’s Modern Library published a list of the one hundred best books of the twentieth century. Number one on the list was James Joyce’s Ulysses, which was chosen because of how much it influenced modern writing. So, while the greatest can mean the best, the most remarkable, and the most superior, it at the same time means how influential or crucial the person was or is. And people can disagree.

A good example of combining objective and subjective criteria for evaluating greatness is how we view our country’s presidents. Lists of the greatest U.S. presidents crop up frequently, with Lincoln and Washington either at or near the top of all such lists. This is so for good reason, although reasonable might differ as to which of the two should be first.

Washington, after all, was the country’s founder: He led the army that won independence, chaired the Constitutional Convention, and was the first president. And, most remarkably, twice Washington, like Cincinnatus of Ancient Rome, voluntarily relinquished power and returned to private life, once after the Revolutionary War, and then again after his second term as president. Washington had challenges and responsibilities that no other president had. But Washington did not appreciate how slavery would threaten the country, nor did he do anything meaningful to deal with that issue, which later almost destroyed the Union. That task fell to Lincoln.

Lincoln saved the nation created by Washington. A grave, compassionate figure, Lincoln held the nation together by sheer force of will through a harrowing civil war to end slavery. Someone else, faced with the prospect of civil war, might have allowed the eleven states of the Confederacy to secede without a fight, as several influential contemporary critics urged Lincoln to do. Lincoln refused. Instead, amid some constitutional doubt, and struggling to come to terms with the devastation of a war ripping the nation apart, Lincoln kept the country in one piece and he freed the slaves. Someone else, someone more timid and with less resolve, might not have issued the Emancipation Proclamation at all. His public utterances are among the most beautiful in our history and give voice, in the full depth of his humanity, to our deepest democratic hopes for freedom and self-government. And then, unlike Washington who died in his bed, assassination made Lincoln a hallowed martyr.

If we broaden the category from greatest U.S. president to simply the greatest American, the field likewise widens. Under those conditions, Lincoln would probably still hold on to his spot at or close to the top of the list. Of course, he might have some strong competition from George Washington, Franklin Roosevelt, Alexander Hamilton, Thomas Jefferson, Benjamin Franklin, Susan B. Anthony, John Adams, John Quincy Adams, Theodore Roosevelt, Frederick Douglass, James Madison, Martin Luther King, John Marshall, Daniel Webster, and Henry Clay, but not too many others. Others might vie for the title, and individual choices may well differ, but Lincoln’s crucial achievements as president, and considering what was at stake during his presidency, probably go a long way toward justifying his rank as the greatest American.

Lincoln and Holmes

Curiously, and ironically, Holmes was, at least at first, not so enthusiastic about Lincoln’s greatness and had little respect for him. During the Civil War, Holmes was talking with a few of his fellow officers about whether the war had produced a great man. Someone suggested Lincoln, and the others laughed at him. Holmes was initially ambivalent about Lincoln and did not really put Lincoln in the great man category. Few men in baggy pants and bad hats are recognized as great by those who see them, Holmes once wrote privately.

But Holmes later revised his estimate of Lincoln upward. Until I was middle-aged, he wrote in another letter referring to Lincoln, I never doubted that I was witnessing the growth of a myth. Then the revelation of some facts and the greatness of his speeches — helped perhaps by the environing conviction of the later world — led me to accept the popular judgment — which I do, without a great deal of ardor or very great interest in the man.

Perhaps Holmes’s measured attitude and ambivalence toward Lincoln is explained by their living at the same time. Just as no man is a hero to his valet, maybe no man strikes his contemporaries as great. Maybe Holmes blamed Lincoln for military blunders and the war not being prosecuted so well while Holmes was in it. Or perhaps it was because Lincoln had dismissed the popular but ineffective General George McClellan — whom Holmes and many other Union soldiers admired — as commander of the Army of the Potomac. Or maybe Holmes simply continued to think of Lincoln as a damned fool. Or perhaps greatness simply requires the perspective of time.

Their being contemporaries at opposite ends of the chain of command is only one of several intriguing comparisons between Lincoln and Holmes. There were obvious differences: Lincoln grew up poor and obscure on the frontier with little formal education and an egalitarian outlook; Holmes was Boston upper class with a superb formal education and an aristocratic outlook. But there were genuine parallels too: both were lawyers, avid readers, great writers, extraordinary speechmakers, shaped by the Civil War, brave each in his own way, affected at times by melancholy and despair, yet moved by humor, devoted to public service, democratic processes, civil liberties, patriotic and opposed to slavery. Despite their differences in formal education, both men were essentially self-taught from a lifetime of voracious reading. Lincoln and Holmes are indeed an interesting pair, both extraordinary products of nineteenth-century America.

Second Greatness

Whatever the comparison between Lincoln and Holmes, and however large the pool of candidates for greatest American, the title of second greatest American is even more up for grabs. Lots of contenders crowd that field. We start with the many also rans listed above. But those illustrious names do not by any means exhaust the list. Depending on one’s point of view, political sympathies, and definitions of heroism and greatness, other candidates for second greatest American might include John F. Kennedy, Rosa Parks, George C. Marshall, Mark Twain, Ronald Reagan, Albert Einstein, Elizabeth Cady Stanton, Woodrow Wilson, Barack Obama, Walt Whitman, John Glenn, Harriet Beecher Stowe, Thomas Edison, Dwight Eisenhower, Douglas MacArthur, and Walt Disney, for instance. All of these too might qualify in any contest for the second greatest American.

One name that does not readily leap to mind on such a list is Oliver Wendell Holmes, Jr., the soldier who saved Lincoln’s life at Fort Stevens. Many Americans do not even know who he is. How could such a relative unknown even make it onto a list of such renown, let alone at the top of it? By what measure did Epstein, a man of usually excellent judgment and wide learning, anoint Holmes as perhaps, after Abraham Lincoln, the second greatest American? What criteria led to Epstein’s choice? How did it come about that Holmes’s name leads all the rest?

Holmes: A Mini-Biography

To answer these questions, we need to know at least a little something about Holmes. In sketchiest outline, the facts of his life can be summed up briefly. Born in Boston in 1841, Holmes was the son of Dr. Oliver Wendell Holmes, co-founder of the Atlantic Monthly, author of The Autocrat of the Breakfast Table and such popular poems as Old Ironsides, The Deacon’s Masterpiece, and The Chambered Nautilus. The younger Holmes grew up a privileged Boston Brahmin (a phrase coined by his father) amid strong abolitionist sentiment and went to Harvard College, where he was class poet. When the Civil War broke out in April 1861, the barely twenty-year-old Holmes left college to enlist that month and went on to fight with distinction in the Union Army for three years. After that, he went to Harvard Law School and then practiced law in Boston