Aphorisms, Enthymemes, and Oliver Wendell Holmes, Jr. on the First Amendment

Abstract

By relying on Oliver Wendell Holmes's decisions as a Supreme Court Justice, I argue that aphorisms employ enthymematic reasoning and that enthymemes are best conveyed through aphorisms. Such an argument requires that I classify Holmes's decisions as aphorisms and show how Holmes explicitly rejects formal, legal rhetoric. These two moves are most clear in his First Amendment decisions, and it is these decisions that demonstrate how Holmes rethinks, broadly, the relationship between rhetoric and law. Holmes's position on the First Amendment, informed by the relationship between aphorisms and enthymemes, helps show how style is constitutive of reason.

Notes

¹I thank RR reviewer John Gage for his thoughtful, extensive, and rigorous review of this manuscript.

²In what follows I rely extensively on Max Lerner's excellent collection of Holmes's writings, The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions. All references to quotations from Holmes's decisions and essays are taken from this anthology.