After law school, I clerked for a year for Judge Learned Hand, of the United States Court of Appeals for the Second Circuit in Manhattan. One evening I had to drop off a memorandum at his house, and I asked a young woman whom I had just met, and who was having dinner with me, to come along because it would take only a second. But when Hand answered the door, he invited us in, made dry martinis, and talked to my new friend for almost two hours about art history, his old friend Bernard Berenson, the state of Harvard College, New York politics, the Supreme Court, and much more. When we left, walking down the brownstone steps, she asked, “If I see more of you, do I get to see more of him?”
Learned Hand was one of America’s greatest judges and now, through Gerald Gunther’s brilliant biography, we can all see much more of him. Hand wrote prodigiously—thousands of judicial decisions, and tens of thousands of memoranda to his fellow judges, letters to his legions of friends, academic essays, ceremonial speeches, and philosophical essays—and an enormous volume of material was at Gunther’s disposal soon after the judge’s death in 1961. Gunther has had a very distinguished academic career in the intervening decades—he is a professor of constitutional law at Stanford Law School, and the author of one of the leading casebooks in that subject. But Hand’s family and admirers had been growing impatient for his biography.
It was worth the wait. Learned Hand, at over eight hundred pages, is not only comprehensive but penetrating and illuminating as well. Its dust jacket, with the famous brooding photograph of Hand as the Platonic form of a judge, eyes glowing under the famous eyebrows, is a splendid bonus. Gunther’s book combines four different stories, each of which would have made a book on its own, and its achievement can be best appreciated by reviewing each of these stories in turn.
The first is a history of America’s second century, from the perspective of a public and sensitive man who lived through almost all of it. Hand was born in 1872, a few years after the Civil War ended, and died in 1961, when John Kennedy was president. Describing his life means describing many of the central American institutions, personalities, and movements of those ninety years. At Harvard College in the 1890s Hand studied philosophy with Santayana, Royce, and James; he also made friends with Jews there, which helped to spoil his chances for membership in the exclusive Porcellian club, which he badly wanted. At Harvard Law School he watched the beginnings of Dean Christopher Columbus Langdell’s transformation of American legal education through the case system. His own law practice, first in Albany, where he had been born, and then in New York, was dull, but it was still possible then for a bright, personable young lawyer with a good academic record to know most people who counted at the bar, and he did. In 1909 his friends secured a federal judgeship for him, a job so little desired by promising lawyers, and so badly paid, that his father-in-law thought him a fool for seeking it.
Though Hand’s family were Democrats in the Jeffersonian tradition, and were appalled at the “progressive” doctrine that national government should regulate commerce and industry in the interests of justice, he himself was an early convert to the progressive movement. He persuaded Theodore Roosevelt, whom he had met, to read Herbert Croly’s progressive manifesto, The Promise of American Life, which became Roosevelt’s bible. He himself worked with Croly in founding the New Republic, for which he wrote unsigned articles. In 1912, he joined Roosevelt’s Progressive Party, helped draft its platform, and a year later ran unsuccessfully for a seat on the New York Court of Appeals on its ticket.
Thereafter he was more faithful to his own view that judges should not publicly take sides on controversial political issues. But he was outraged, both as a judge and as a progressive, by the decisions of the deeply conservative Supreme Court, which declared unconstitutional much of the social legislation that is now considered routine in a just society, including laws stipulating maximum working hours and imposing minimum wages for women. According to the Court of that time such legislation offended the due process clause of the Fourteenth Amendment by depriving citizens of a fundamental liberty of contract, and this Hand thought preposterous.
He deeply disliked Harding and Coolidge, and was disappointed in Hoover, whom he had admired as an administrator. While he believed FDR to be intellectually shallow, he admired him for his optimism and experimentalism. He had a clearer sense of the coming of World War II than others, particularly his then close friend Walter Lippmann, and became a national figure during the war when he gave a widely quoted and reprinted speech about liberty in a patriotic ceremony in Central Park. (“The spirit of liberty,” he said, “is the spirit which is not too sure that it is right.”) In the postwar period, he was appalled by the sadism and folly of McCarthyism, as well as by the liberal decisions of the Supreme Court under Chief Justice Warren, which he thought just as wrongheaded as the conservative decisions of earlier years.
Gunther discusses Hand’s place in and reaction to all these great events and periods of American political history, and describes the other political actors Hand knew and corresponded with, all with great verve. Learned Hand seems essential material for historians of any part of the judge’s long era.
The book’s second story provides a psychological portrait of an unusually complex, even paradoxical, person. Hand was funny, spontaneous, and gregarious; he loved practical jokes, classical puns, bawdy stories, and Gilbert and Sullivan arias, which he would suddenly begin to sing, breaking the studious silence of his chambers. His relations with his clerks were unusually close:in my time he and his clerk worked face to face across two pushed-together desks. Though he had himself invented the law-clerk system (paying his first clerks out of his own salary) he claimed uncertainty about how to use those assistants. “Most of my colleagues have their clerks look up the law,” he told me on my first day. “But I know where the law is better than you do,” he said, gesturing toward the books that lined the walls, “because I wrote most of it. Most of my colleagues ask their clerks to write the first draft of opinions. Maybe you write better than I do. But I’m a vain man, and I won’t think so. So what shall I do with you?You’d better just read what I write and tell me what’s wrong with it. And in our spare time, if we have any, we’ll just talk.”
But in spite of Hand’s charm and playfulness he was amazingly insecure:he thought himself weak and even cowardly—he once compared himself with Casper Milquetoast—and his low view of his own abilities was only sporadically lifted by his growing fame. Gunther suggests many roots and reinforcements for this insecurity. Hand’s remote father, a lawyer who was a hero to his family and to the legal community of Victorian Albany, died when Hand was only fourteen, and Hand felt he could not live up to his father’s standards. He never forgot being ignored by the “swells” and their clubs at Harvard—he would talk of this social failure, with droll pain, even in his late eighties. And the fact that he was never appointed to the Supreme Court pained him too, much more than he ever let on, except in an extraordinary letter to Felix Frankfurter in 1950 in which Hand admitted that he longed for a place on the Court “beyond all else”; but he despised this weakness, as he saw it, and worried that it was only the “importance, the power, the trappings” of the office he wanted.
His marriage was one few others would have tolerated: his wife Frances, whom he adored, had a very close friendship for decades with another man, Louis Dow, a Dartmouth professor of French. The Hands had bought a country house in Cornish, New Hampshire, near Dartmouth, and after Dow’s own wife entered a mental hospital in 1913, he spent much time there with Frances while Learned stayed in New York. In the 1930s, Frances made several trips to Europe with Dow and without her husband. Gunther tells the story with great tact, and says he has an open mind about whether the relationship between the two friends was ever a “physical” one. In any case, Hand was, Gunther thinks, desperately anxious for a more intimate relationship with his wife, and after Dow died in 1944, their letters do become tender and playful—his seeming almost childlike in their gratitude for her affection.
Learned Hand’s third story is a professional, even technical, one.Every American law student learns that Hand was part of a quartet, with Holmes, Brandeis, and Cardozo, of the greatest American judges. Many scholars, in my view plausibly, put Hand at the top of even that exalted list. The other three were on the Supreme Court but, as Gunther makes plain, the reasons Hand was never chosen, during the years when he might have been, were accidents of politics; when Felix Frankfurter was asked to name the greatest jurist on the Supreme Court he replied that the greatest jurist was not on the Supreme Court. But few lawyers today (and very few non-lawyers)have any idea why Hand was such a great judge, and in the most impressive pages of the book—particularly in one long chapter entirely devoted to legal analysis—Gunther answers that question, not by abstractions but through an uncompromising and detailed discussion of some of the most arcane matters of federal law:constitutional law and the law of obscenity, as well as apparently much duller matters of admiralty, patent, copyright, and administrative law.
While some readers will be daunted at the prospect of sixty-five pages explaining how Hand practically reinvented each of these fields of law, they will find that Gunther’s exposition is remarkably clear and vivid. As he realized, there is no other way to explain what judging is like, and why Hand was so good at it, than to set out, in an uncondescending way, the problems he faced, the methods he used, and the solutions he offered. For it was above all in the details of his daily work that Hand was a genius. When he was asked to give a tribute to Holmes, whom he deeply admired, at the Harvard Law School in 1930, he said that Holmes was president of the “Society of Jobbists,” those who belong to a craft that does not seek glamour or attention but “gives good measure for its wages” and “demands right quality, better than the market will pass.” In 1958, in his Holmes Lectures at the Harvard Law School, he said that his teachers there had taught him that “it is as craftsmen that we get our satisfactions and our pay.”
The Second Circuit, alone among circuit courts, requires its judges to explain their views on each case in written memoranda before the formal conference at which a collective decision is reached. Hand kept his thousands of preconference memoranda, and they reveal a “jobbist” at work. They are full of good and bad jokes, and some wicked, malicious asides, few of which survived in the eventual formal opinions he wrote. But they are also, as Gunther suggests, dense with meticulous hard work, showing not just the imaginative insight that made his opinions so often path-breaking, but also a staggering degree of industry, day after day, decade after decade, exploring issues well beyond those strictly raised in the case, always in search of a better understanding of the commercial and human problems the law had somehow to solve. In admiralty cases involving collisions between ships, he prepared detailed drawings of how each accident happened until he felt he understood it as well or better than those on board. In patent cases involving inventions of sometimes mind-numbing complexity, when his fellow judges were content with a quick characterization of the issue taken from briefs, Hand made drawings, teaching himself physics or chemistry when necessary, until he understood the technical problem well enough to feel competent to pass on whether a putative invention should be thought to have infringed someone else’s patent.
He was a federal judge for fifty-three years; for a great part of that period he was thought to be the best in the business, and by the end he was a legend. But he worked in the same laborious way until he died, as if each case, no matter how complex or trivial, exciting or mundane, was the most important a judge might ever confront.
He did take quiet pleasure in his growing fame. During my clerkship, he once exercised his prerogative to sit as a district judge, trying a new case on his own, instead of acting in his normal role as a circuit court judge hearing appeals, and he chose an admiralty case, because he particularly loved boats. I knew that the lawyers in the case would have no idea that he was sitting before he entered the courtroom, so I ran down to the court to watch that event. “All rise,” the clerk said to two startled young lawyers, “Judge Learned Hand, presiding,” after which Hand entered, sober and brusque, the great eyebrows knitted in concentration. There was much whispered conference until a young lawyer rose and said, “May it please the court, I request an hour’s adjournment so that I can call my office. My senior partner will fire me if I don’t give him a chance to argue this case.” Hand consented, and both lawyers bolted from the room. An hour later the senior partners of two well-known admiralty firms, neither having the slightest knowledge of the case, were on their feet before the great judge. “Now I can write my memoirs,” one of them told me afterward.
The fourth story Gunther tells is the most important though it is the least explicit. America’s political system is unique in the extraordinary power it gives judges to declare the acts of legislatures and other officials invalid if the judges believe those acts offend any of the abstract moral standards of the Constitution’s Bill of Rights, which include the provision, for example, that government shall not infringe “freedom of speech” or deny “due process of law” or “equal protection of the laws.” It is therefore a crucial question how judges should interpret such abstract phrases, and Gunther provides the material we need to study Hand’s dramatic answer.
Some judges decide constitutional cases on the assumption that it is their duty, so far as the Constitution’s text and past decisions permit, to interpret these moral phrases according to their own views about which liberties are necessary in a decent society and which forms of equality are essential to equal citizenship. The conservative judges who invalidated legislation regulating the maximum number of working hours assumed that freedom of contract is so fundamental that “due process” of law requires its protection. The judges who declared racial segregation of schools unconstitutional thought this form of discrimination so invidious that it undermines “equal” protection of law.
But from the beginning of our constitutional history, other lawyers and judges have objected to the assumption that judges should make such decisions; judges should not, they said, have so much power. That was the view of James Bradley Thayer, Hand’s favorite teacher at the Harvard Law School, who said, in 1893, that judges should declare statutes unconstitutional only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”1 Hand was much influenced by Thayer, and when the Supreme Court held unconstitutional the progressive economic and social legislation he himself favored, he became even more distrustful of judicial power.
As a judge, Hand initially made one significant exception to his creed of restraint. In 1917, Congress, in a World War I fervor, adopted the Espionage Act, which made statements critical of the war a crime, and allowed the postmaster general to exclude from the mails periodicals containing antiwar statements. Under that authority, the post office banned an issue of The Masses, the radical journal edited by Max Eastman, which contained several cartoons and articles depicting the war as a weapon of big business against the interests of the workers. The case came before Hand, who was still a district judge, and who knew he would damage his chances for promotion if he lifted the ban. But he did so in a brilliant decision that remains one of the strongest, and most prophetic, judicial defenses of free speech. He said that the First Amendment’s guarantee means that even dangerous speech must not be prohibited or punished unless what is said constitutes a direct incitement to crime, and that the Espionage Act should be interpreted as subject to that limitation.
Hand was promptly overruled, and his reputation did suffer. When he had failed to convert even Holmes to his view, he gave it up—he called it a toy boat that hadn’t sailed very far and must be taken out of the water. Holmes’s own “clear and present danger” test, which offered less protection because it allowed speech to be punished when a judge or jury thought it was likely to cause imminent harmful acts, whether or not the speaker actually called for them, became the constitutional standard (although the law has now settled, in recent years, into a view closer to Hand’s original opinion).
In 1950, in the Dennis case, Hand felt himself bound to use Holmes’s test in reviewing the conviction of Communist Party leaders, under the Smith Act, for conspiracy to advocate overthrowing the government by force or violence. He said that Congress might well think, in the midst of the cold war, that the threat of Communist violence did present a clear and present danger, and he upheld the conviction in language the Supreme Court adopted in confirming his ruling. Though Gunther defends Hand’s decision, as that of a good lower court judge following Supreme Court precedent, the decision can only be explained as showing his increasingly strong view that judges should not overrule political or predictive or moral judgments that other institutions have made. In fact, he himself thought, as he said in a letter to Bernard Berenson shortly after his Dennis decision, that the prosecution was a tactical mistake, a statement that is hardly consistent with the judgment that the threat was clear and present. On any reading, Hand’s opinion in Dennis shows much less concern for court-protected freedom of speech, and much more for judicial restraint, than his radical opinion in the Masses case did.
By 1958, when he gave his long-awaited Holmes Lectures at Harvard, his opposition to judges’ second-guessing legislators about moral issues had stiffened into the strongest doctrine of restraint ever defended by a major judicial figure. He said that there was no warrant in the Constitution for judges having any power to invalidate the acts of another “department” of government, and that though he agreed that it was necessary to read such power into that document, in order to save the nation from the paralysis that would follow if, for example, the president and Congress interpreted the Constitution in different ways, that power should be exercised only when necessary to prevent that paralysis. It was certainly not necessary for judges to remake decisions the legislature had already made, either about the likely results of different economic or other policies, or about the best balance of competing moral values. Judges should ask only whether the legislative judgment was honest and impartial—and then he added that even this question was too “political” for judges.
His austere view would deny citizens the protection, in court, of their most important constitutional guarantees:the due process and equal protection clauses of the Fifth and Fourteenth Amendments—and of the First Amendment as well, for Hand had come to think that even Holmes’s clear-and-present-danger test gave judges too much power. “For once Homer nodded,” he said of Holmes’s view, and he ridiculed, as unhelpful, his own formulation of that test in Dennis.2 He did not shrink, moreover, from accepting the most difficult conclusion his view entailed. The Supreme Court had made its famous decision in Brown four years earlier:it had declared that the longstanding racial segregation of public schools in the South was unconstitutional. Its decision caused immediate controversy, but by 1958 it was widely regarded as among the greatest decisions the Court had ever made. Hand nevertheless told his audience, with evident sadness, that he thought it indefensible.3 He had hated and opposed prejudice all his life, and yet he insisted, at the end of his career, that the American Constitution, with its enviable Bill of Rights, did not give judges the power to outlaw prejudice’s worst results. What drove this great judge to that depressing conclusion?
Hand was one of three famous judges whose constitutional philosophy was influenced by Thayer. The others were Oliver Wendell Holmes and Felix Frankfurter, and since Hand’s version of judicial restraint was stricter than that of the other two, it may be instructive to compare his reasons with theirs.4 Frankfurter’s grounds for restraint were often practical and political. He remembered the popular outrage that greeted the conservative Supreme Court decisions striking down early New Deal legislation, and cared as much about protecting the Court’s reputation from the people as the people from the Court. Though he was on the Court when Brown was decided, and joined in its unanimous decision, he thought that the Court’s authority would suffer if it opposed popular opinion too forcefully, and sometimes went to what might seem unprincipled lengths to avoid unpopular or divisive decisions—he fought to delay any decision that laws against interracial marriage were unconstitutional, for example.
Holmes’s reasons for constitutional restraint were different:they were based not on practical politics but on philosophical skepticism about morality. This was not a matter of personal uncertainty:he had very firm and confident convictions about almost everything. But he said that these were only his opinions, only what he, constituted and conditioned as he was, could not help but believe. So he called them his “can’t helps” and insisted that from an objective point of view there was no more to be said for them than for the opposite. He had no reason, he declared, to think that his “can’t helps” were those of the cosmos, and he therefore thought it absurd for him or any other judge to appeal to moral “truth,” which meant nothing more, he said, than the judge’s subjective opinion. Instead, he said, echoing Thayer, judges must strike down only legislation that no rational or reasonable person could think proper—only legislation, that is, that offends the “can’t helps” of all reasonable people.
Though Holmes’s form of moral skepticism reflected much of the pragmatist philosophy of his time, and is now embraced by Richard Rorty and others who deny the possibility of “objective” truth, it is confused. If someone can’t help but believe something, he can’t help but believe it, and then he contradicts himself if he says that it isn’t really true, or no more true than its opposite. It doesn’t remove the contradiction for him to say that though he believes some moral claim to be true, he doesn’t believe that it is “ultimately” or “objectively” or “foundationally” or “cosmically” true. So far as these odd adverbs make any sense at all, they simply repeat, in a table thumping way, the original opinion he says he can’t help but believe. There is no distinct “foundational” truth, no distinct point of view of the cosmos. There is only ordinary truth, and someone’s “can’t helps” are, among other things, his beliefs about what is, in that ordinary way, true. Holmes recognized this himself in the arguments he gave for his clear and present danger test, which, while not as strong as Hand’s view in the Masses case, nevertheless justified judges in overruling censorship laws. Holmes said that a free marketplace of ideas is the best way to discover truth, which makes no sense if there are only individual “can’t helps,” and no real truth for free discussion to discover.
Holmes’s philosophical skepticism was too muddled to have any important effect on his own legal arguments, and in fact it didn’t. He did dissent from the ultra-conservative due process decisions of the Supreme Court when he was on it, but he did so not in spite of his own moral convictions but because of them. He did not necessarily agree with the economic theories behind the progressive social legislation he voted to uphold, but he plainly did not think that these laws were immoral, or that they violated any important individual rights, as his colleagues who voted to invalidate them did think. According to Louis Brandeis, Holmes’s actual working test for unconstitutionality was the question:”Does it make you puke?” which presumably means, in less visceral language, “Does it offend your deepest moral ‘can’t helps’ or convictions?”5 There was nothing in maximum hour or minimum wage legislation that was capable of making Holmes puke. But if he had still been on the Court in the 1950s, when the war had finally made Jim Crow laws seem intolerable, it might well have made him puke that black children were turned away from white schools. There is no reason to doubt that he would have voted, in Brown, the same way Frankfurter did.
Hand was also a skeptic, but his skepticism was very different from Holmes’s. Hand’s skepticism consisted not in the philosophical view that no moral conviction can be objectively true, but in a disabling uncertainty that he—or any one else—could discover which convictions were true: he thought moral matters were much too subtle and complex to allow anyone much confidence in his own opinions. He often said that he despised “absolutes.” He meant, by that ambiguous phrase, that he distrusted any attempt to resolve the untidy complexity of a moral or legal or political issue in a neat and simple formula. He resisted Frankfurter’s heated defense of Sacco and Vanzetti’s innocence (until, after their execution, he seemed to regret his failure to study the case more thoroughly) mainly on the ground that the case must be more complex than Frankfurter had allowed. By 1944, as I said, he had come to the remarkable view that the spirit of liberty is essentially the spirit “that is not too sure that it is right,” and in his Holmes Lectures he recommended, as a “combination of tolerance and imagination that to me is the epitome of all good government,” Benjamin Franklin’s plea that people should on occasion “doubt a little of [their] own infallibility.”6
Hand’s personal uncertainty about moral issues, and his sense that moral truth is more complicated than any simple formula can disclose, obviously contributed to his distaste for judicial activism in constitutional matters. But these factors alone cannot explain his extreme position—the people’s representatives, after all, are as likely to be wrong as judges, and should doubt their own infallibility as much. A different idea, emphasized by his teacher Thayer, had a further and decisive role. Hand believed passionately in the virtues of what is often called civic republicanism: he thought that a political community could not flourish, or its citizens develop and improve their sense of moral responsibility, unless they participated in the community’s deepest and most important decisions about justice. In his Central Park speech he warned that “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help.”7 (Thayer had written, a half-century earlier, that “Under no system can the power of courts save a people from ruin; our chief protection lies elsewhere.”)8 And Hand’s most formal statement of his views, in his 1958 Holmes Lectures, culminated in this passage:
For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew 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. If you retort that a sheep in the flock may feel something like it; I reply, following Saint Francis, “My brother, the Sheep.”9
Though Hand’s views about judicial restraint are not much studied in law schools now, or treated as very important, they in fact made a considerable contribution to the long national debate about constitutional interpretation. Both before his lectures and after, constitutional experts and scholars have tried in various ways to evade the stern question he insisted on facing. When and how far is it right for judges testing statutes against the Bill of Rights to rely on their own moral convictions about which liberties and which forms of equality are fundamental? Many contemporary judges, scholars, and journalists hope for an answer to that question that will enable them to applaud the Supreme Court for its decision in Brown and condemn it and Hand for the decision in Dennis while nevertheless insisting that judges may not substitute their own moral convictions for those of legislatures.
But all the notable attempts by constitutional scholars and judges to explain how that is possible—from Herbert Wechsler’s plea that judges develop “neutral” principles that nevertheless impose serious constraints on legislation to Robert Bork’s attempt to show that Brown was right while all other liberal decisions of the last few decades were wrong—fail for a reason Hand saw clearly and most of his critics ignore. The great constitutional clauses set out extremely abstract moral principles that must be interpreted before they can be applied, and any interpretation will commit the interpreter to answers to fundamental questions of political morality and philosophy. As Hand said, any attempt to decide how the original “framers” of these principles would have interpreted them is both hopeless and pointless. It is therefore an inescapable question whether, in the end, the interpretations of the legislatures or those of the judges will prevail, and though lawyers who dislike either answer call for something in between, there is, as Hand pointed out, no logical space for anything in between.
Hand chose the interpretations of the legislators who had been elected by the people, and his argument needs to be answered, not just set aside by pointing out that it entails the judicial abstinence he gloomily conceded it did. I think his argument can be answered. He was right in saying that a nation is sick when its most important collective moral decisions are reserved for specialists who decide in isolation and furnish the public with only Delphic verdicts. But he wrongly rejected an apparently paradoxical possibility that was difficult to see in the years in which his opinions were formed, but is more evident now:that individual citizens can in fact exercise the moral responsibilities of citizenship better when final decisions involving constitutional values are removed from ordinary politics and assigned to courts, whose decisions are meant to turn on principle, not on the weight of numbers or the balance of political influence.
It is true, of course, that when political controversies are decided by legislatures or other elected officials, the decision is likely to be governed by what most people want. That is desirable when an issue turns on the question of what is in the best interests of the community as a whole, and the gains to some groups are balanced against losses to others. In such matters, numbers should count. But they need not count, at least not for that reason, in matters of fundamental principle, when the community must decide, for example, whether blacks have a constitutional right to be protected from discrimination, or atheists from the presence of prayer in public schools, or pregnant women from majoritarian views about how and why life is sacred. In such cases, it is important that the public participate in the decision not because the community should reach the decision most people favor, but for the very different reason that Hand emphasized: that self-respect requires that people participate, as partners in a joint venture, in the moral argument over the rules under which they live.
The distinction Hand relied on in the passage I quoted is essential:between a single citizen’s power over a collective decision, which in a large nation is all but illusory, and that citizen’s role as a moral agent participating in his own governance, which is sometimes better protected if the mechanisms of decision are not ultimately majoritarian.
For though the public debate that precedes a referendum or a legislative decision about some great issue of principle may be of high quality, emphasizing reasoned debate, it rarely is. Depressingly often—as in arguments over the morality of gun control, for example—the process is dominated by political alliances that are formed around a single issue and use the familiar tactics of pressure groups to bribe or blackmail legislators into voting as they wish. The great moral debate that Hand thought essential to the spirit of liberty never begins. Ordinary politics generally aim, moreover, at a political compromise that gives all powerful groups enough of what they want to prevent their disaffection, and reasoned argument elaborating underlying moral principles is rarely part of or even congenial to such compromises.
When an issue is seen as constitutional, however, and as one that will ultimately be resolved by courts applying general constitutional principles, the quality of public argument is often improved, because the argument concentrates from the start on questions of political morality. Legislators often feel compelled to argue for the constitutionality and not just the popularity of measures they support, and presidents or governors who veto a law cite constitutional arguments to justify their decision. When a constitutional issue has been decided by the Supreme Court, and is important enough so that it can be expected to be elaborated, expanded, contracted or even reversed, by future decisions, a sustained national debate begins, in newspapers and other media, in law schools and classrooms, in public meetings and around dinner tables. That debate better matches Hand’s conception of republican government, in its emphasis on matters of principle, than almost anything the legislative process on its own is likely to produce.
The great national debates about racial justice that intensified in the 1950s illustrate this claim. So do the arguments about abortion that began two decades later, after the Supreme Court’s decision in Roe v. Wade. The abortion controversy has been extremely violent and has divided us as few other issues have. (It might very well have been just as violent if the law had been settled, not by a Supreme Court decision, but by political battles state by state.) But, in spite of all the violence, it is also true that the public discussion of that issue in America has involved many more people, and has been more successful at identifying the complex variety of moral and ethical issues involved, than in other countries where a political compromise was engineered. In France, for example, this was done more in the interests of avoiding intense public discussion than of reflecting it, and in Ireland the dominant political group directly imposed its will, smothering any effective debate. Americans better understand, for instance, the distinction between the question whether abortion is morally or ethically permissible, on the one hand, and the question whether government has the right to prohibit it, on the other; they also better understand the more general and constitutionally crucial idea on which that distinction rests: that individuals have rights that may work against the general will or the collective interest or good.
I must be careful not to overstate my point. Of course, I am not arguing that only courts should consider issues of moral principle, or that all issues of moral principle should be regarded as constitutional ones, or that judges should reverse any legislative decision they think morally unsound. There are many arguments for limiting the constitutional power of judges (and many others for expanding those powers) that I have not considered here.10 I mean only that Hand’s main reasons for denying judges any such power at all, in spite of the Constitution’s direct instruction that government be limited by moral principle, might actually count against rather than for his conclusions.
In any case, however, the civic benefits of public discussion I have described can be realized only when judges and the public cooperate in securing them. When Hand began to worry about the effects of a strong judiciary on the spirit of liberty, many judges treated constitutional issues as more conceptual than moral, and rarely brought moral argument explicitly into their opinions. Constitutional jurisprudence has improved since then, and Supreme Court opinions are more explicitly concerned with moral argument. True, those opinions are not very widely read by the general public. But many of the most important of them are now written in less technical language, so that they are available to journalists as well as professional lawyers, and this change has facilitated—as well as reflected—the steadily growing attention they receive in the press.11
The process of nominating Supreme Court justices and other federal judges is also more open than it once was, and this, too, allows the public to participate more effectively, coming to understand constitutional issues better, and to influence decisions more, through its reaction to and part in those proceedings. The political process that ended in the Senate’s rejecting Bork’s nomination provided a crucial introduction to constitutional theory for many people, and the verdict the public rendered, though informal, may well have had important consequences for the law. It may have been among the historical causes, for example, of the impressive argument of principle at the center of the Court’s 1992 decision in Planned Parenthood v. Casey, which confirmed its earlier Roe v.Wade decision, but in a way that took account of, and reflected, the long public argument that earlier decision had generated.
So we, Hand’s “sheep,” do play a part in a common constitutional venture in the United States. It is a different venture, to be sure, from what it would be if all great decisions of principle were taken by majority vote. But it may be a better one—better suited to developing a national sense of justice, and to keeping our spirit of liberty alive—because it engages us as moral deliberators and advocates rather than just as numbers in a political count. I cannot suggest that Hand would have changed his mind had he lived longer and noticed the developments I have been describing. But the structure of his argument—his insistence on the need for a dramatic choice between constitutional philosophies, and his emphasis on the importance of that choice for self-government—are even more important now than when he gave his brave Holmes Lectures to an admiring but astonished audience in 1958.
I want to end, however, by turning back from Hand’s work and thought to his character, because though he was a great judge, it was the man that I loved. Law clerks normally received a month’s paid vacation at the end of their service. But Hand told me, when I raised the question, that he didn’t approve of that practice, and thought it particularly wrong that the public should pay for a vacation for me, since he was technically retired by my time, sitting only when he chose to, and since much of our time together had been spent discussing the Holmes Lectures he was then writing. So, though he regretted it, I would have no paid vacation.
I was only a little surprised:Iknew Hand was passionate for public economy, and turned off all the light bulbs at the end of the day, not only in his own chambers but in other judges’ chambers as well. A few days after my duties ended, I married the woman who had been so impressed with my boss five months earlier. Hand’s wedding present was his personal check for a full month’s salary.
August 11, 1994
Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard Law Review, Vol. 7, No. 3 (October 25, 1893), p. 129. ↩
Hand did, however, say that there were good arguments why a community might entrust the protection of free speech to judges even though, in his view, our Constitution does not. ↩
Gunther suggests that Hand’s treatment of Brown in his Holmes Lectures was the result of pressure by Frankfurter. Hand thought that if the Court’s decision could be seen to rest on the assumption that the Fourteenth Amendment in its own terms allows no racial distinction whatever, the decision would be defensible, because it would not then have been the result of the Supreme Court’s substituting its judgment for the legislatures’ about whether discrimination was particularly offensive or unwise in the specific case of education. Frankfurter pressed Hand not to take that view of the decision, however, because Frankfurter did not think it would be wise for the Court soon to invalidate laws prohibiting interracial marriage, as it would have to do if it really had decided that all racial distinctions were unconstitutional. But Hand had his own reasons for rejecting that view of what the Court had decided in Brown, and they were persuasive. Chief Justice Warren’s opinion for the Court deployed elaborate sociological argument to explain why at least in contemporary circumstances, separate educational facilities for blacks were inherently unequal, an explanation that would not have been necessary, as Hand pointed out in his lectures, had the Court intended a blanket invalidation of all racial distinction. ↩
For Thayer’s influence, see Harlan B. Phillips, Felix Frankfurter Reminisces (Reynal and Company, 1960), pp. 299- 300. I should point out that Frankfurter and Holmes served on the Supreme Court, where the pressure on a judge to respond to deeply felt injustice is strong, and Hand did not. But even so it is striking that Hand’s version of judicial restraint was so much more austere than their versions. We cannot explain that austerity simply by pointing to the bad conservative decisions the Supreme Court was making when his judicial career began, because we can think these decisions wrong for two different kinds of reasons. The justices who held that maximum hour laws were unconstitutional argued in two steps: first, that the due process clause obliges judges to declare unconstitutional any infringement of an individual liberty so basic that it is essential to a free society, and, second, that freedom of employers and employees to enter into any contract they might think in their best interests is such a liberty. ↩
Philippa Strum, Louis D. Brandeis:Justice for the People (Harvard University Press, 1984), p. 361. ↩
Learned Hand,The Bill of Rights (Harvard University Press, 1958), pp. 75-76. ↩
Learned Hand, The Spirit of Liberty (Knopf, 1952), p. 190. ↩
Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law.” ↩
Learned Hand, The Bill of Rights, pp. 73-74. ↩
See Chapter 5 of my book Life’s Dominion (Knopf, 1993) and my “Equality, Democracy and Constitution: We the People in Court,” Alberta Law Review, Vol. 28, No. 2 (1990), p. 324. ↩
See Christopher L. Eisgruber, “Is the Supreme Court an Educative Institution?” New York University Law Review, Vol. 67, No. 5 (1992), p. 961. ↩