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The Bill of Rights (Oliver Wendell Holmes Lectures, 1958), by Learned Hand
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- Sales Rank: #3406903 in Books
- Published on: 1958
- Binding: Hardcover
- 82 pages
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How Prescient He Was: Learned Hand, The Paradigmatic Philosopher-Judge
By B. P. Hayek
Billings Learned Hand was born in 1872 destined to follow his father and grandfather not just into the law, but to the bench. He majored in Philosophy at Harvard, graduating summa cum laude, he earned the M.A. in Philosophy at Harvard, graduated with honors from Harvard Law School, and then entered the private practice of law. Hand is said to have remarked that he “was not very successful as a young lawyer” and “never was too happy at the bar,” finding much of it “dull,” “petty,” and unduly “formal.” Fortunately, he was rescued from the drudgery of law practice when appointed as a Federal District Court Judge by William Howard Taft – at the ripe old age of 37 – where he served for 15 years until being elevated to the Second Circuit by Calvin Coolidge. He took senior status in 1951, and in 1958 gave the Harvard Law School’s Oliver Wendell Holmes Lectures. He is widely considered to be the greatest jurist never to be appointed to the Supreme Court, and has been quoted more often by legal scholars and the High Court itself more than any other judge never to be so elevated. Learned Hand died in 1961.
It has been said that Hand’s study of philosophy left a permanent residue on his thought generally and his jurisprudence in particular. I find this claim true beyond all reasonable doubt, for the study of philosophy, insofar as one genuinely pursues it, induces an enormous respect for both intellectual humility and an ironic brand of skepticism. It is no coincidence that Hand is claimed to have once described himself as “a conservative among liberals, and a liberal among conservatives” when it came to politics; for him, a devotion to the truth and the rule of law were paramount, meaning that he sacrificed neither to curry favor from any faction or for any gain of public popularity. Hand was, in other words, the paradigmatic philosopher-judge.
Hand’s 1958 Holmes Lectures are three in number. In Lecture I. “When a Court Should Intervene,” Hand presents his view of the implied authority for, and wisdom of, judicial review. During the discussion, however, he makes several other insightful remarks on the limited nature of the law’s generality as applied to future cases; he remarks on the primacy of the text of the law (as the words were publicly understood at the time of enactment) in relation to the problematic nature of ascertaining “legislative intent”); and he expresses deep reservations about the impropriety of the Court going anywhere near political questions.
In Lecture II. “The Fifth and Fourteenth Amendments,” Hand confesses that, in his view, judicial review regarding either “due process” is confined to the examination of the abuse of constitutional authority, period. If a legislature enacts a new law, one must assume that it did so in the face of an occasion causing discontent with the status quo and the belief that the law will be beneficial to society. That belief involves a choice involving an appraisal (balancing) of values and sacrifices anticipated as a result of the law. But values and sacrifices are “incommensurables” that, under our American Constitution, it is every American must evaluate or “weigh” on his or her own when making choices. For a Court to step in and “decide” such matters “impartially” is impossible, for those sorts of choices are those that are, as a matter of logic in relation to the incommensurable nature of value, for the people themselves to make; moreover, it by definition impedes upon the people’s sovereignty to think and choose freely, rendering it conceptually impossible as a matter of constitutional law. Any other conclusion renders the Court a third legislative chamber. It is, for Hand, a simple “question of power,” concluding that “I cannot frame any definition that will [accurately predict] when the Court will [improperly] assume the role of a third legislative chamber and when it will [properly] limit [itself] to keeping Congress and the states within their accredited authority.”
In Lecture III., “The Guardians,” Hand considers the First Amendment in relation to the arguments made thus far. He repeats his admonition that expanding the constitutional meanings of the other amendments “beyond their historical meaning” is a violation of the judicial function, which in his view lies in policing legislatures to make sure their value choices are honestly made and perceived sacrifices honestly appraised: “The statute may be far from the best solution of the conflicts with which it deals; but if it is the result of an honest effort to embody that compromise,” the “due process” inquiry ends. (He makes the same point regarding Equal Protection, “between which I [Hand] do not distinguish.”) Hand then criticizes the Court for its continuing usurpation of the people, which he worries will someday be viewed as commonplace. Then Hand reminds us that there are other checks, other safety mechanisms, in place to guard against “public hysteria, panic, greed,” and “sudden swings of popular obsession” made manifest in laws (coming out of the House of Representatives), as the Senate and a Presidential veto. Hand also remarks on the “permanent” nature of Court rulings, the Court’s capacity to do “serious damage” that “cannot be undone.” He then warns of the impending disaster that will become of the judicial appointment process should Americans continue to tolerate the Court’s continued encroachment, as well as the inevitable political “splits” that will become commonplace in all the appellate courts, which will in turn wreck the people’s confidence that what judges are doing is “really” law at all.
Hand concludes by assuring us that he is more than aware of the deeper “ever present problem in all popular government: how far the will of immediate majorities should prevail.” To this he replies that: “Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies. No one can fail to recognize the perils to which the last forty years have exposed such governments. We are not indeed forced to choose between absolutism and the kind of democracy that so often prevailed in Greek cities during the sixth to fourth centuries before our era. The Founding Fathers were acutely, perhaps overacutely, aware of the dangers that had followed that sort of rule, though, as you all know, they differed widely as to what curbs to impose. For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I know how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture.”
In 1952, for the Introduction of Hand’s The Spirit of Liberty, Irving Dillard wrote that “Learned Hand has sought to see as far as he could.”
How prescient he was.
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