The Kaleidoscopic 1905 of Mr. Justice Oliver Wendell Holmes. What two unrelated opinions could tell us about immigration law, American jurisprudence, and twentieth century exceptionalisms

In 1905 Justice Oliver Wendell Holmes delivered two historical yet different opinions: the dissenting one in Lochner v. New York (198 U.S. 45) and the majority one in United States v. Ju Toy (198 U.S. 253). Comparing the two opinions written by the same Justice a few days apart, a contradiction seems to emerge: while the former has been widely known and celebrated as showing the progressivism of Holmes, the latter has had far more limited fame precisely because it upheld the “executive oppression” (Dickinson, 1927) of aliens. Notwithstanding this, a comparative analysis of these opinions involving labour and immigration regulation by the government ultimately shows more similarities than inconsistencies. Consequently, their analysis could provide an opportunity to recast the multifarious contribution of Holmesian jurisprudence (which has already been interpreted in many different ways) to the evolution of American law in terms of individual rights, balance of powers, and more broadly democracy. Moreover, it would also provide insight into the development of some exceptionalism(s) as a useful tool employed by American jurisprudence toward the evolution of American constitutionalism in the first decades of the 20th century.