Jim Crow Pragmatism: Oliver Wendell Holmes Jr. and the Legal Logic of Race

AbstractIn The Common Law (1881), Oliver Wendell Holmes Jr. wrote famously, “the life of the law has not been logic; it has been experience.” This essay turns to this seminal work of American legal pragmatism to reconsider the stakes of pragmatism for contemporary studies of race. After a framing discussion of Holmes’s debt to William James, it examines The Common Law as well as Holmes’s subsequent reading of the Fourteenth Amendment and the ways in which this reading replicates the Supreme Court’s reconstruction of racial citizenship from the end of Reconstruction to Plessy v. Ferguson (1896). The root of this shared logic is a pragmatist theory of personhood that, first elucidated in The Common Law, is itself a remnant of racial citizenship in the United States. Pragmatism’s failure to address practically the racial discord of its era, I argue, is inseparable from its conceptual failure to recognize the social histories of racialized bodies.