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  William did take those things rather consciously. “If you knew my life,” he wrote to Renouvier in 1882, when he was forty, “you would confess that my little stream of work runs on under great disadvantages.” 34 He was not referring to external pressures. He seems to have undergone what he called an “annual collapse” every February. He agonized for two years about his courtship of Alice Gibbens until their marriage in 1878—a period when he behaved, as he confessed to her later, like “a man morally utterly diseased.”35 He complained of depression in 1893 (“I … know now a new kind of melancholy”).36 In 1899, when he was supposed to be writing The Varieties of Religious Experience, a heart ailment brought on a depression that lasted nearly two years. He was incapacitated again by severe depression in 1909, the year before his heart disease finally killed him. “The fact is,” he wrote in 1901 to his brother Henry (who, despite his wish that William would display a little more fortitude, was subject to serious depressions himself), “that my nervous system is utter trash, and always was so. It has been a hard burden to bear all these years, the more so as I have seemed to others perfectly well; and now it is on top and ‘I’ am under.”37

  William experimented with pretty much every cure available for his various psychosomatic symptoms: chloroform, electric shock (intended to stimulate the nerves), weight-lifting, diet, hypnotism, drugs, travel, Christian Science, “mind cure” treatments (during which the practitioner “disentangled” his mind while he slept), and the “talking cure” (a primitive form of psychotherapy). So it would hardly be surprising if he had also checked himself into the McLean Hospital. Some of the rumors that have been reported indicate that he was being treated there for depression later in life. This seems plausible. It is worth noting that McLean did not accept voluntary admissions until 1881.

  Still, the events used to frame the standard biographical narrative—the Renouvier diary entry and the story of the epileptic patient—are plainly relevant to our understanding of James’s thought. The question is, How? The texts themselves are a good deal less clear on this point than has generally been assumed. In the story of the epileptic patient, the Frenchman’s sudden perception that he might end up in the same condition induces a fear of going out in the dark and of being left alone, which is allayed by recalling tags from the Bible. In the Renouvier episode, a feeling of inanition caused by excessive philosophical speculation is addressed by a decision to assume a more active role in life. In the first case the problem is fear of catastrophe, and the remedy is religious consolation. In the second, the problem is intellectual paralysis, and the remedy is a belief in the efficacy of self-assertion. The two episodes do not seem to be related as crisis and recovery, or negation and transcendence, or down and up. They seem to be experiences of different kinds of distress alleviated by different kinds of self-therapy. The mistake has not been singling these passages out as emblematic of Jamesian insights. The mistake has been stringing them together as the endpoints of a single crisis.

  In fact, for James the two experiences represented eternally opposed responses to life. He made himself clear on the matter in an odd corner of his work—in the introduction he wrote to his father’s Literary Remains, a memorial anthology which was published in 1884 and promptly sank without a trace. Most people who believe in God, William says there, are really pluralists. God for them is just one force in the universe, “a concrete being whom it does not take a scholar to love and make sacrifices and die for.” It is hard to feel affection for an omnipotent God, a God defined as Universal Substance, or as First Principle. And pluralism, says James, is anyway “a view to which we all practically incline when in the full and successful exercise of our moral energy.” For when we feel healthy, our will seems a match for the forces we confront; life, as James put it elsewhere, “feels like a real fight,” whose outcome is still in doubt.

  But, he continues, there are also times when life feels like a mechanical and predetermined process whose outcome we are powerless to change; and at these times, trying to buck ourselves up with the thought that we, too, can make a difference, that we get a vote, is futile. In his description of this fatalistic state of mind, he evokes the epileptic:

  To suggest personal will and effort to one “all sicklied o’er” with the sense of weakness, of helpless failure, and of fear, is to suggest the most horrible of things to him. What he craves is to be consoled in his very impotence, to feel that the Powers of the Universe recognize and secure him, all passive and failing as he is. Well, we are all potentially such sick men. The sanest and best of us are of one clay with lunatics and prison-inmates. And whenever we feel this, such a sense of the vanity of our voluntary career comes over us, that all our morality appears but a plaster hiding a sore it can never cure, and all our well-doing as the hollowest substitute for that well-being that our lives ought to be grounded in, but, alas! are not. This well-being is the object of the religious demand,—a demand so penetrating and unassuageable that no consciousness of such occasional and outward well-doing as befalls the human lot can ever give it satisfaction. On the other hand, to satisfy the religious demand is to deny the demands of the moralist … . So that of religion and moralism, the morbid and the healthy view, it may be said that what is meat to the one is the other’s poison. Any absolute moralism is a pluralism; any absolute religion is a monism … . The accord of moralism and religion is superficial, their discord radical. Only the deepest thinkers on both sides see that one must go.38

  James was a moralist who gave a great deal of his time and intellectual energy to the business of trying to understand religion. But although he believed in the legitimacy of the religious response to the universe, he was never able to attain its consolation for himself. All his efforts to make contact with God, or to enter into what he could regard as a spiritual state of mind, were unsuccessful. “My personal position is simple,” he wrote two years after the publication of The Varieties of Religious Experience to one of the book’s critics. “I have no living sense of commerce with God.” And then, in an understatement: “I envy those who have, for I know that the addition of such a sense would help me greatly.”39

  This is why treating the Renouvier episode as a response to a spiritual crisis is a disservice to James. James thought that philosophy could never be an adequate response to despair, because he thought that philosophy begins and ends with the recognition of its own inadequacy. Philosophy is a moralism: it is for people who feel strong enough to face the universe on its own terms, knowing that there is, in the end, nothing to back them up, nothing to guarantee that their vote will be counted. “A philosopher has publicly renounced the privilege of trusting blindly which every simple man owns as a right,” James wrote in 1873, in the final entry in his diary, “—and my sight is not always clear enough for such constant duty.”40 He went on, of course, to write a great deal of philosophy, but he could do it only when he felt healthy enough to face the abyss, and he always expressed pleasure when he could take a break from it. Gertrude Stein’s anecdote about the final exam she took in James’s course when she was his student at Harvard is well known. “Dear Professor James,” she claims she wrote on the exam, “I am so sorry but I really do not feel a bit like an examination paper in philosophy to-day” The next day, she says, she received a note from James. “Dear Miss Stein,” he wrote, “I understand perfectly how you feel I often feel like that myself,” and he gave her the highest mark in the course.41 Gertrude Stein was not above autobiographical embellishment, but this story is probably truer than it seems. She had understood the lesson. James knew that philosophy was not enough. But it was all he had.

  James was a beloved figure—not just a man whose writings other people found inspiring, but someone more personally affecting than that. He was adored even by people, such as Bertrand Russell, who detested his philosophical views. After James’s death, many of these people, both the inspired and the uninspired, struggled to explain what it was about James that had made him such a genuine and irresistible character. For there was a side of James that is not captured in his writing, as colloquial and highly inflected with personality as it is.

  In his work, James can sometimes seem to be expounding, with too much bravado, a kind of can-do, self-help attitude toward life, to be suggesting that the answer to most of our problems is just to drop our philosophical worry-bones and get on with the business of making and doing. Many readers since James’s time have complained that the pragmatism and pluralism he promoted are not enough, that life confronts us with some situations that call for a different sort of response. But no one knew this better than James. It is the poignancy of his life that he never found, for himself, that other sort of response. He created a philosophy of hope expressly premised on the understanding that there is, finally, no reason for hope. This is why reading Renouvier was not a cure, and it is why the experience with the epileptic patient is attributed to someone else. James was too wise to believe that true melancholy can ever be overcome by a theory, and he was too honest to pretend to a spiritual satisfaction he was never able to feel.

  John Jay Chapman was one of the readers whom James’s writings failed to inspire, but he loved James anyway, and in his memoir he put into words the quality others searched for: “There was, in spite of his playfulness, a deep sadness about James. You felt that he had just stepped out of this sadness in order to meet you, and was to go back in the moment you left him.”42 What lends authenticity to his philosophy is not its triumph over the unhappiness in his own life, but its failure.

  The Principles of Oliver Wendell Holmes

  1

  “Talks too much” was the comment on the first report card of Oliver Wendell Holmes, Jr., the future Supreme Court justice and founder of the constitutional law of free speech.1 Wendy
Holmes (as he was known to his intimates) was six. He lived for another eighty-seven years, and no one ever accused him of keeping his views to himself. He opined regularly to dozens of correspondents, among them the English jurist Sir Frederick Pollock (their letters are collected in two volumes), the political theorist Harold Laski (two volumes), the Washington lawyer Felix Frankfurter (one volume), the diplomat Lewis Einstein (one volume), the Irish priest Patrick Augustine Sheehan (one volume), the progressive journalist and eccentric Franklin Ford (one volume), the philosopher Morris R. Cohen, the Chinese jurist John Wu, the Japanese nobleman Kentaro Kaneko, and a stable of female confidants that included Nina Gray, Alice Stopford Green, Baroness Charlotte Moncheur, and Holmes’s Anglo-Irish paramour, Lady Clare Castletown, of Granston Manor, Upper Ossory, Ireland.

  When Holmes’s brothers on the bench—he served for twenty years on the Supreme Judicial Court of Massachusetts and for thirty years, beginning in 1902, on the Supreme Court of the United States—fell behind in the production of opinions, he begged his chiefs to reassign their cases to him. In the end, he wrote over two thousand opinions, believed to be a record for judges sitting in courts of last resort. It was his habit, every few years, to refresh himself by traveling to England, leaving his wife behind, where he sought out the company of the leading philosophical and literary lights of the land and where he flirted aggressively with most of the women he met, once going so far in his banter with the twelve-year-old daughter of one of his hosts, Tom Hughes, the author of Tom Brown’s School Days, that Hughes sent a letter afterward demanding to know Holmes’s intentions. He had none, except to experience once again the pleasure of his own flamboyance. “He would catch a subject, toss it in the air, make it dance and play a hundred tricks, and bring it to solid earth again,” an English acquaintance described his social manner. “He liked to have the ball caught and tossed back to him, so that he could send it spinning away again with a fresh twist.”2

  Holmes’s father, Dr. Oliver Wendell Holmes, Sr., a pioneer of the germ theory of disease, the author of the patriotic poem “Old Ironsides,” cofounder of the Atlantic Monthly (whose name he came up with), coiner of the term “Boston Brahmin,” the first person to refer to Boston as “the Hub of the Solar System,” and dean of the Harvard Medical School, was said to have been the greatest talker of his day. He thought the talent worth acquiring, and made it a rule that any child who uttered a clever remark at the dinner table be given extra marmalade. Holmes Sr. was five feet three and round; his son, fully grown, was six-three and lean, and their relations were notoriously fractious. But this was one trait that got passed along.

  The law provided Holmes with a steady supply of occasions to exercise his gift for turning a phrase, but he did not allow the engine to idle. Early in his career, when he was in practice in Boston, he would walk into the office in the morning and announce to one of his firm’s junior associates, “Mr. Evans, I am ready to contradict any statement you will make.”3 Mr. Evans evidently felt it his duty, each morning, to oblige. Fifty years later, Holmes liked to tell his colleagues on the Supreme Court, when they were conferring about a case, that he would admit any general principle of law they proposed, and then use it to decide the case under discussion either way. It was not persiflage, or it was not only persiflage. Holmes had a profound appreciation for the malleability of words, and that appreciation is the demon that sits at the bottom of his thought. His challenge to his fellow justices was not an excuse to show off his forensic dexterity; he was making a point about the nature of language. There have been hundreds of efforts since Holmes published The Common Law, in 1881, when he was thirty-nine, to sew a political label on him. Commentators have tried to prove that he was a progressive, a liberal, a civil libertarian, a democrat, an aristocrat, a reactionary, a Social Darwinist, and a fascist. But none of these efforts has gotten to the core of what Holmes did, because all of them have mistaken the implications for the premises. They have focused on the accidents of his thought.

  Calling Holmes a progressive or a reactionary is like calling, say, Wittgenstein a progressive or a reactionary. It assumes that he was interested in the political consequences of his ideas. But one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes. He didn’t read the newspaper, and he was utterly, sometimes fantastically, indifferent to the real-world effects of his decisions. He saw the law as a series of minutely varied, frequently boring, but sometimes delightfully nasty intellectual problems. These took the form, in his view, of concrete conflicts, each with some slight but potentially crucial point of difference from the rest, submitted for resolution by the ultimately absurd process of reasoning out a result from abstract principles. From the very beginning of his career, Holmes regarded the reasoning part as factitious and, in its relation to the result, logically ex post facto. “It is the merit of the common law that it decides the case first and determines the principle afterwards,”4 is the first sentence of the first legal article he ever published, “Codes, and the Arrangement of the Law” (1870), and he spent the next sixty-two years as a jurist and a judge trying to be faithful to this insight. That it was an impossible task by definition—as though one were to make it a principle never to rely on principles—seems only to have whetted his sense of sport.

  Holmes repeated his view of the relation between reasons and results in the opinion that, after his opinions in the free speech cases, is his most celebrated, the dissent in Lochner vNew York . (1905): “General propositions,” he said there, “do not decide concrete cases.”5 This is a radical assertion; for it leaves us with the question, If principles don’t decide cases, what does? Holmes’s effort to answer that question led him, after many years, and very improbably, to the free speech opinions which capped his career, and on which his reputation now rests.

  2

  In 1995, the University of Chicago Press published the first three volumes of The Collected Works of Justice Holmes, which include all the nonjudicial writings, and is the first such comprehensive edition. It was edited by Sheldon M. Novick, whose Honorable Justice (1989) was the first full-length biography of Holmes to make use of all the archival material—a fact that is testimony chiefly to the speed with which Novick was able to take advantage of the opening, in 1984, of the Holmes Papers to biographers after fifty years of failed attempts to get an official life completed. Mark DeWolfe Howe, a professor at Harvard Law School who had once served as Holmes’s secretary, managed to finish two detailed and elegant volumes, The Shaping Years (1957) and The Proving Years (1963); but these take the story only to 1882, the mere brink of Holmes’s fifty-year career as a judge, and Howe died in 1967. Novick’s biography, though serviceable as a narrative of Holmes’s life, was notable for its relegation of virtually all discussion of Holmes’s jurisprudential work to the footnotes, which sometimes assumed a rather disputatious tone. In his main text, Novick suggested that Holmes espoused “a kind of fascist ideology”; he described Holmes as “a violent, combative, womanizing aristocrat whose contribution to the development of law was surprisingly difficult to define”; and he announced it to be his conclusion that Holmes was, in his thought, a structuralist—a judgment that can be called, among the many that have been offered about Holmes’s work, unique. 6

  How this came to be the person chosen to put together the official edition of Holmes’s writings by the trustees of the Holmes Devise (the fund established from Holmes’s bequest of a portion of his estate to the government of the United States) is a mystery, as is the decision of the University of Chicago Press to publish the volumes in the form in which they appear. The first volume contains 333 pages of text; 198 are by Oliver Wendell Holmes, and 135 are by Sheldon M. Novick. Most of these are devoted to a disquisition on “Holmes’s Philosophy and Jurisprudence,” with an ensuing “Critical Appraisal.” This is a subject which has received continuous attention, at a pretty high level of critical inquiry, since about 1914. A bibliography of Holmes scholarship (none is provided) might have served the purpose more economically and, in what is presented as a memorial edition, more tastefully. Still, though it took sixty years, this is how the job was done.7