Here’s some quotes from Mr. Justice Holmes that express one point of view on the issue you’ve brought up(they seem to be somewhat different from some of Justice Thomas’ quotes):
�All my life I have sneered at the natural rights of man.� Letter to Harold Laski, (Sept. 15, 1916) in 1 Holmes-Laski Letters 21 (M. Howe ed., 1953)
the State has the power and constitutional right arbitrarily to exclude the plaintiff without other reason than that such is its will.� Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 (1926).
Holmes� rejection of natural law is also reflected in his dictum that sovereign immunity embodies �the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.� Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
As H.L. Mencken said in his great article on Holmes, �[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct…. The typical lawmaker of today is a man wholly devoid of principle�a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.� H.L. Mencken, A Mencken Chrestomathy 260-61 (H.L. Mencken ed., 1962). If Holmes� views were generally accepted, Mencken wrote, �there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.� Id. at 260.
That’s one viewpoint. Of course Holmes’ best known sentence from his SC ouevre is the following:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.� Buck v. Bell, 274 U.S. 200, 207 (1927)
I can only imagine the reaction if Justice Scalia or Justice Thomas wrote that passage in an opinion of theirs today. Reading it today it seems like it comes straight from some Eugenics manual or pamphlet.
Of course, Holmes also wrote the following which seems to endorse a “living constitution” view, at least somewhat:
With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into LIFE a being the development of which could NOT HAVE BEEN foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had CREATED AN ORGANISM; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our WHOLE EXPERIENCE, and NOT MERELY in that of what was said a HUNDRED YEARS AGO. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country HAS BECOME in deciding what that Amendment has reserved.
And he also joined in full Justice Brandeis’ concurrence in Whitney which said the following(with regards to SDP and Satre Decisis):
Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights. See Meyer v. Nebraska, 262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510; Gitlow v. New York, 268 U.S. 652, 666; Farrington v. Tokushige, 273 U.S. 284.
So, I guess one has to conclude that Holmes certainly gives one much rom for thought and discussion.
�All my life I have sneered at the natural rights of man.� Letter to Harold Laski, (Sept. 15, 1916) in 1 Holmes-Laski Letters 21 (M. Howe ed., 1953)
the State has the power and constitutional right arbitrarily to exclude the plaintiff without other reason than that such is its will.� Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 (1926).
Holmes� rejection of natural law is also reflected in his dictum that sovereign immunity embodies �the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.� Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
As H.L. Mencken said in his great article on Holmes, �[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct…. The typical lawmaker of today is a man wholly devoid of principle�a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.� H.L. Mencken, A Mencken Chrestomathy 260-61 (H.L. Mencken ed., 1962). If Holmes� views were generally accepted, Mencken wrote, �there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.� Id. at 260.
That’s one viewpoint. Of course Holmes’ best known sentence from his SC ouevre is the following:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.� Buck v. Bell, 274 U.S. 200, 207 (1927)
I can only imagine the reaction if Justice Scalia or Justice Thomas wrote that passage in an opinion of theirs today. Reading it today it seems like it comes straight from some Eugenics manual or pamphlet.
Of course, Holmes also wrote the following which seems to endorse a “living constitution” view, at least somewhat:
With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into LIFE a being the development of which could NOT HAVE BEEN foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had CREATED AN ORGANISM; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our WHOLE EXPERIENCE, and NOT MERELY in that of what was said a HUNDRED YEARS AGO. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country HAS BECOME in deciding what that Amendment has reserved.
And he also joined in full Justice Brandeis’ concurrence in Whitney which said the following(with regards to SDP and Satre Decisis):
Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights. See Meyer v. Nebraska, 262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510; Gitlow v. New York, 268 U.S. 652, 666; Farrington v. Tokushige, 273 U.S. 284.
So, I guess one has to conclude that Holmes certainly gives one much rom for thought and discussion.

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