A PROGRESSIVE JURIST WHO RESPECTED THE LIMITS OF INTERPRETATION..

A Liberal Who Preached Restraint
By ADAM J. WHITE at WSJ On-Line....

If modern constitutional law has a bedrock rule, it is this: Brown v. Board of Education was correctly decided. To argue, even to imply, that the Supreme Court erred when it ended school segregation in 1954 is to exile oneself from respectable constitutional debate. "Such is the moral authority of Brown," constitutional scholar Michael McConnell wrote in 1995, "that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited."


Only one jurist has condemned Brown without losing his reputation, and he accomplished that feat only because he had established himself as one of the greatest judges in American history. In 1958, near the end of his half-century of service on the federal bench, New York's Judge Learned Hand used a Harvard lecture series to criticize what he saw as the Supreme Court's unprincipled judicial activism in desegregating the schools. Yet just three years later, no less a civil-rights champion than Bobby Kennedy would remark, upon Hand's death, that "he was one of the great legal minds of our history, ranking with John Marshall and Oliver Wendell Holmes."

Judge Hand rejected Brown not in spite of his progressive values but because of them. That is the major lesson imparted by "Reason and Imagination," a collection of Hand's selected correspondence edited by Constance Jordan (a retired English professor and Hand's granddaughter). The book traces Hand's intellectual journey through the words of Hand himself and those of his correspondents, especially his friends Felix Frankfurter and Walter Lippmann. It becomes clear, over the course of these letters, that the views that propelled Hand to acclaim in the first half of his career were also those that, retained with increasing rigidity and even bitterness, put him at odds with the defining legal decision of his lifetime.

Learned Hand was born in Albany, N.Y., in 1872. From his father, a lawyer, he inherited a profession; from his mother, Lydia Learned, he received his memorable name. "Learned" was, in fact, his middle name; born Billings Hand, he dropped his given name in his 20s. He studied philosophy and law at Harvard, graduated in 1896 and returned to Albany to practice law. Like his idol, Oliver Wendell Holmes Jr., Hand would find little fulfillment in the practice of law; unlike Holmes, Hand sought refuge in politics. Moving to New York in 1902 in pursuit of an interesting caseload, he soon became enamored of progressive Republican politics.

In one of the first letters presented by Ms. Jordan, a note to his cousin Augustus Hand (a future colleague on the U.S. Court of Appeals for the Second Circuit), Hand rejected the "doctrinaire individualism" of his Democratic family and embraced the view "that in a vast multitude of cases the State must and should regulate the conduct of individuals for their own welfare and modify the contractual relations which they assume towards one another."

Hand would meet Teddy Roosevelt before TR became governor; he would befriend the progressive movement's leading voice, Herbert Croly, not long after. The two affiliations, it could be said, helped to change American history. By sending TR an advance copy of Croly's "The Promise of American Life," Hand introduced TR to the "New Nationalism" that would define TR's post-presidential political life, leading TR to re-enter politics in 1912, stripping the White House from William Taft and the Republicans, and handing it to Woodrow Wilson and the Democrats. Hand would also help Croly found the New Republic magazine, to which he contributed unsigned pieces. Bored with legal practice, he secured an appointment to Manhattan's U.S. District Court for the Southern District of New York.

The legal philosophy that Hand employed as a judge, and that he extolled in his widely read essays, was the judicial restraint preached by the progressive reformers of Hand's youth. Just weeks after Hand entered Harvard Law School, the law review published James Bradley Thayer's "The Origin and Scope of the American Doctrine of Constitutional Law," an article that guided Hand's lifelong judicial philosophy.

In an era dominated by the Supreme Court's nullification of state laws concerning public health, safety and labor, Thayer argued that the courts should defer to state legislatures and uphold state laws—that is, progressive reforms of state laws—unless the laws' unconstitutionality was "so clear that it is not open to rational question." Because the people's government must respond to "great, complex, ever-unfolding exigencies," the courts must stay their hand, Thayer said, lest they take on the power of an unelected super-legislature.

Hand's debt to Thayer is reflected in Ms. Jordan's choice, to begin the book, of a letter from Hand to "My dear Mr. Thayer" a year after Hand graduated from Harvard. Hand later took up Thayer's theme in a 1911 letter to Frankfurter: The "stand-patters," he wrote, ". . . want to put the whole weight of government on nine elderly gentlemen at Washington." Hand's own belief was that the court "ought not to exercise [the power of judicial review] at all." Instead, as he wrote in a letter to Frankfurter 40 years later, a judge applying a statute should try to "imagine" what outcome the original legislators would have intended. (Hence Ms. Jordan's choice of book title.)

Early in his career, when his progressive political preferences enjoyed wide public support, Hand was a proud democrat, in the small-d sense: Whatever the flaws of the vox populi, legislatures were "the most capable engine of government." Over time his version of progressivism would lead him to shift his political allegiance from the Republican Party to FDR. Still, he continued to defend judicial restraint, not activism, out of a suspicion of the judiciary's elitist prejudices. He warned a correspondent that "judges drawn from one economic class feel free to make the law on their own 'hunches,' and those hunches have corresponded to the unconscious prejudices of their class."

Because Judge Hand had quickly risen to prominence in progressive circles, many hoped that he would rise all the way to the Supreme Court. But in 1930 President Herbert Hoover passed him by for an open seat. It was the closest Hand would come to the high court. Hand had played down his prospects: "The chances are so remote," he told Frankfurter, "as to be merely in the realm of mathematical possibilities." Even so, he was disappointed. In a letter to his wife, he confessed that the nomination "was in my thoughts all the time; it made a kind of coward at me."

It was perhaps the most touching moment of Hand's career; inexplicably, Ms. Jordan omits that letter from "Reason and Imagination." Those searching for it must turn to Gerald Gunther's superb 1994 biography, "Learned Hand: The Man and the Judge."

Ms. Jordan's omits other letters between Hand and his wife, Frances, including any that might shed light on Hand's reaction to his wife's long relationship with Louis Dow, a Dartmouth professor of French. (Dow and Frances were frequently in each other's company and even traveled to Europe together.) When Hand vaguely alludes to "F.H. or Louis Dow" in a letter, the reader is left clueless about Hand's pain. For excerpts from the letters between the Hands, or between Judge Hand and Dow, one must go again to Gunther's biography, which describes the "jealousy and inadequacy" that Dow likely stirred in Hand.

Ms. Jordan focuses instead on Hand's political and judicial philosophy, which took on a decidedly pessimistic color as the years passed. His hero, Justice Holmes, once wrote that "if my fellow citizens want to go to Hell I will help them. It's my job." In a similar tone, in a 1950 letter, Hand decries "the infantile beliefs of so many of our fellows." Still, he sticks with judicial restraint. As he once explained to Lippmann: "We are in for democracy, and while I am as shaken as you, I ask for any available substitutes."

Thus the letters in "Reason and Imagination" offer a narrative arc: Hand adopted a firm philosophy of judicial restraint early in life, as a means toward progressive political ends—and stuck with the philosophy, as the years passed, as an end in itself. Decades later, as FDR replaced the conservative Supreme Court of Hand's youth with a court stocked with liberals and progressives, Hand was unwilling to rethink his views, even if the court's decisions were likely to be more in line with his political outlook.

The next generation of constitutional scholars, such as Alexander Bickel and John Hart Ely, would construct theoretical defenses for the courts' liberal rulings on issues of race and social justice. Brown v. Board of Education was their victory but Hand's defeat. His career confirms Antonin Scalia's warning, years later (before Mr. Scalia himself joined the court), that, "unfortunately, a tactic employed for half a century tends to develop into a philosophy."

Once Hand's gospel of extreme judicial restraint fell out of favor, scholars and judges, such asWilliam Rehnquist, praised him in the neutral terms of "craftsmanship." In 1958, Hand himself had said in a lecture, referring to judges and lawyers: "It is as craftsmen that we get our satisfaction and our pay."

In 2009, Justice David Souter quoted those lines in his farewell address to a conference of federal judges. But to focus on the virtues of craftsmanship leaves one vulnerable to its vices. As Richard Sennett wrote in "The Craftsman" (2008): "The obsession with getting things perfectly right may deform the work itself." There can be no better example of this danger than Judge Hand. The 1958 lectures in which he offered his ode to "craftsmanship" were the same lectures in which he condemned Brown v. Board of Education.

—Mr. White is a lawyer in Washington.
A version of this article appeared January 5, 2013, on page C7 in the U.S. edition of The Wall Street Journal, with the headline: A Liberal Who Preached Restraint.

The reality is, when legislatures allow evil, sometimes others have to overstep their bounds and do something. We do not have a perfect society, nor perfect people, nor a perfect form of government.

I agree with Hand's restraint as the preferred rule. But when there is such an absurd evil as segregation was practiced in the South--and in places in the north--sometimes that justifies action that in less evil situations would not be necessary.

Having lived in "the rural south", and after escaping it, spending significant time there still, if we are ever stupid enough as a country to allow unwatched educational control to be devolved to local communities we will see similar segregation of education--and with it a sharecrop mentality--resurface in many southern locations. That is the primary reason many do not shout louder for the elimination of a Dept of Ed--because they do not trust the closet fanatics who would shove segregation, creationism, and their christian beliefs disguised as something else into the schools. I personally believe that school vouchers are a philosophically good thing--I just don't trust how they would be used. Within 5 years we woud have undone Brown in practice, and we would have segregated education back in place.

Brown may have been a reach farther than technically allowed by the constitution, I will leave that debate to others more learned in the law. But if the legislatures had not perpetuated evil, then it would not have been necessary. While you may not like how it was done, do you actually believe in the educational system that was in existance at that time?

In some ways the founders were too naieve about how evil some groups of citizens can be.

The real punch line is that the Constitution doesn't actually give the Supreme Court the power of judicial review, at least according to some legal scholars. They've been doing it since 1803.

From Claremont.org:

In Levin's view, the history of the Supreme Court has been one of a continuous usurpation of power, a disregard of constitutional principles and a relentless pursuit of influence. This self-aggrandizement began when the Court announced a principle of "judicial review" in Chief Justice John Marshall's landmark Marbury v. Madison decision. As Levin shows, the U.S. Constitution makes absolutely no mention of the concept of judicial review.

http://www.claremont.org/publication...pub_detail.asp

The real punch line is that the Constitution doesn't actually give the Supreme Court the power of judicial review, at least according to some legal scholars. They've been doing it since 1803.

From Claremont.org:

In Levin's view, the history of the Supreme Court has been one of a continuous usurpation of power, a disregard of constitutional principles and a relentless pursuit of influence. This self-aggrandizement began when the Court announced a principle of "judicial review" in Chief Justice John Marshall's landmark Marbury v. Madison decision. As Levin shows, the U.S. Constitution makes absolutely no mention of the concept of judicial review.

http://www.claremont.org/publication...pub_detail.asp Originally Posted by joe bloe

God bless John Marshall.

Do you know the story behind Marbury v Madison? Obviously not.

The case was about the appointment of several officials by outgoing President John Adams. The Secretary of State at the time neglected to distribute those appointments. When the new administration took over, those officials demanded their appointments, and the administration refused, not wanting to appoint Federalists to those positions. The Supreme Court thereupon declared the Act providing for the appointment of those officials unconstitutional. Thereby inventing for themselves the concept of "judicial review."

Oh, did I fail to mention that the Secretary of State involved was . . . John Marshall? Adams appointed him to the Court, and he blew off distributing the appointments. So in effect, Marshall ruled on HIS OWN CONDUCT! He should never have been involved in the case, so Marbury v Madison was simply Marshall's attempt to cover his own ass, and he screwed up jurisprudence forever.

Marshall was, and remains, a disgrace to jurisprudence in the United States.

Yeah, but I really liked her in Laverne and Shirley!

The real punch line is that the Constitution doesn't actually give the Supreme Court the power of judicial review, at least according to some legal scholars. They've been doing it since 1803. Originally Posted by joe bloe

Thereby inventing for themselves the concept of "judicial review." Originally Posted by CuteOldGuy

OK. I'll bite.

If the courts don't have the power to review the actions of Congress, who does?

Do you actually want to give Congress and the President MORE power to interpret the Constitution as they see fit?

Judicial review is not perfect, but it is the best thing we have going to restrain the executive and legislative branches.

Both of you are advocating the nefarious position of progressives. You do realize that don't you?

And just what does Article III of the Constitution mean if it does not provide for judicial review?

OK. I'll bite.

If the courts don't have the power to review the actions of Congress, who does?

Do you actually want to give Congress and the President MORE power to interpret the Constitution as they see fit?

Judicial review is not perfect, but it is the best thing we have going to restrain the executive and legislative branches.

Both of you are advocating the nefarious position of progressives. You do realize that don't you?

And just what does Article III of the Constitution mean if it does not provide for judicial review? Originally Posted by ExNYer

I'm simply making the observation is that there is a real controversy as to whether or not SCOTUS has the power of judicial review based on the Constitution. They've been doing it for 210 years. I don't think it's likely to be taken away.

I'm not advocating anything.

I'm simply making the observation is that there is a real controversy as to whether or not SCOTUS has the power of judicial review based on the Constitution. They've been doing it for 210 years. I don't think it's likely to be taken away.

I'm not advocating anything. Originally Posted by joe bloe

Why not? You always default back to the Founding Fathers ... Who had the amazing vision to see things three centuries into the future.

Then there's your Bible...

I'm simply making the observation is that there is a real controversy as to whether or not SCOTUS has the power of judicial review based on the Constitution. They've been doing it for 210 years. I don't think it's likely to be taken away.

I'm not advocating anything. Originally Posted by joe bloe

I appreciate that you are not advocating anything.

But I don't think any reputable scholar questions whether or not the federal courts in general and SCOTUS in particular has the power of judicial review.

Let's take the words of Article III of the Constitution itself:

Article III, Section 1:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Article III, Section 2:
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Incidentally, the concept of judicial review did not originate in the United States. It was well known in England long before the American Revolution and dates back at least to Lord Coke ("no person should be a judge in his own case."). Judicial review was also widely discussed prior to ratification of the Constitution.

It is a truly BAD idea to allow Congress and/or the President to decide what the limits of their power should be. That's why we have an independent federal judiciary written right into the Constitution.

I have no idea why someone who claims to be a conservative or a libertarian would ever advocate against judicial review.

Expanding the power of government and not letting a pesky little thing like the Constitution get in the way of a Congress with an agenda is a progressive position, NOT a conservative or libertarian one.

Typical Whirlyturd post, including the text but not the link. I have no doubt that the text has been edited to suit DA TURDs agenda. but we'll never know, will we. I guess it's the MEDIAs job to keep things honest!

You are dumb as rocks:

1). Almost all of my posts include a link to the original story. In this case I did not because I clearly identified the sources, as well as the writer's bio.

It would be easy enough for you to find the link if you were inclined. I even posted the Section and Page number of the print edition for you (assuming you read, much less comprehend is giving you too much credit presumably ?).

By the way, most of the WSJ on line articles are behind a paywall. So having a link would not help you !

Do some research before you post Bullshit.

You are likely too dumb and lazy to want to read the WSJ; which is by far the best daily newspaper in the US right now.

Typical Whirlyturd post, including the text but not the link. I have no doubt that the text has been edited to suit DA TURDs agenda. but we'll never know, will we. I guess it's the MEDIAs job to keep things honest! Originally Posted by Yssup Rider

[QUOTE=Whirlaway;1052168968]You are dumb as rocks:

1). Almost all of my posts include a link to the original story. In this case I did not because I clearly identified the sources, as well as the writer's bio.

It would be easy enough for you to find the link if you were inclined. I even posted the Section and Page number for you.

By the way, most of the WSJ on line articles are behind a paywall. So having a link would not help you !

Do some research before you post Bullshit.

You are likely too dumb and lazy to want to read the WSJ; which is by far the best daily newspaper in the US right now.[/QUOTE]

The Wall Street Journal also has the largest circulation of any American newspaper. It's owned by News Corporation, the folks that bring us Fox News.

WSJ has a conservative editorial page. It's the only large circulation American newspaper that does

I get the print edition delivered every morning...6 days a week....home delivery of the WSJ costs me less than my local news paper, which is trash for the illiterate.

I get the print edition delivered every morning...6 days a week....home delivery of the WSJ costs me less than my local news paper, which is trash for the illiterate. Originally Posted by Whirlaway

I thought it was odd that Murdoch paid five billion dollars to buy it a few years ago. It seems like newspapers are an endangered species.