Newspaper Reader.
Jul 01, 2026
In May 1944, Learned Hand delivered a brief but timeless address in New York on “the spirit of liberty.” Freedom, the great Second Circuit jurist warned, cannot be safeguarded by constitutions, laws or courts. Nor can there be freedom wherever “men recognize no check upon their freedom” — a road down which it becomes “the possession of only a savage few.”
Instead, the judge said, the spirit of liberty lay in a combination of humility, curiosity, generosity and restraint. It was “the spirit which is not too sure that it is right,” the one that “seeks to understand the mind of other men and women” and “weighs their interests alongside its own without bias.” It was an elusive spirit, one that could exist only “as the conscience and courage of Americans create it.” Yet it was also one “for which our young men are at this moment fighting and dying.”
Hand gave his speech on the eve of D-Day. What is — or ought to be — the spirit of liberty on the eve of our 250th anniversary?
It is the spirit of public example, beginning with the character of the president; of presidential character defined by modesty, composure and integrity, which are necessary to offset the vast and sometimes terrifying powers of the office; of leadership that ensures the faithful execution of laws by submitting to them fully, transparently and unto the smallest detail; of statesmanship that never mistakes grandiosity for greatness, or rhetoric for reality, or monuments for meaning
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The Judge Who Shaped Our Law
https://www.nybooks.com/articles/2013/12/05/judge-who-shaped-our-law
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Hand’s lectures made the case for judicial enforcement of them only “on extreme occasions.” He contended that there was no basis in the text of the Constitution or in its history for the Supreme Court to hold acts of government unconstitutional, especially statutes passed by Congress and state legislatures.
It was not, he wrote, “a lawless act to import into the Constitution such a grant of power,” for “without some arbiter whose decision should be final the whole system would have collapsed.” But justices and other judges, he advised, should use this power only when that was essential—when a governmental act violated the clear “historical meaning” of the amendments in the Bill of Rights—or they would function as a super-legislature. “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians,” he said famously, “even if I knew how to choose them, which I assuredly do not.”
The lectures were an attack on judicial activism but also the Warren Court. In 1954, Warren had led the Court to the unanimous Brown v. Board of Education ruling. Every justice then on the Court, as the legal historian Michael Klarman noted, “had criticized untethered judicial activism as undemocratic.”
But the justices recognized that America was a transformed nation in its views about race and that history compelled the Court to find segregation of public schools unconstitutional.In a short opinion, Warren stated that principle.
Among liberal and centrist legal thinkers, the question was how broad a principle of equality the Court had actually stated. In his lectures, however, Hand staked out a very conservative position. The Brown ruling was unacceptable because it was second-guessing of legislative choices by the states, even though that put Hand on the wrong side of history.
Gunther attributed Hand’s extreme position to Felix Frankfurter, who, though younger by a decade, had authority as a longtime Harvard Law School professor. They had a memorable correspondence for fifty years, with Frankfurter signing off “Ever yours” and Hand, “Thine.” Franklin D. Roosevelt had appointed Frankfurter to succeed Benjamin Cardozo on the Supreme Court in 1939 and sustain a liberal vote but, by the time of the Brown ruling, Frankfurter’s fierce adherence to judicial restraint had repositioned him as a conservative.
While Frankfurter joined the unanimous decision in Brown, he was deeply conflicted about it. In the internal deliberations about the case, he emphasized that he could not say that the Fourteenth Amendment “meant to abolish segregation.” But as Klarman put it, he abhorred segregation more than he scorned basing a legal decision on politics.
As if he could turn an activist ruling into a restrained one, however, he persuaded Warren that the Court should take a gradualist approach, with implementation of the order to desegregate public schools the responsibility of local authorities—with no deadline. One district after another refused to obey the Court, which hardened Frankfurter’s conservatism and invigorated Warren’s liberalism. Brown introduced a new era of expanded authority and activism for the Court. Frankfurter blamed Warren and his “self-willed self-righteous power-lust.” That was the backdrop for Frankfurter’s goading of Hand, who took the ultra-restraint, anti-Brown position of his lectures.
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In June 1954, after Frankfurter sent Hand a copy of the Brown decision, Hand wrote the justice that he would have reached the same result: “It is difficult for me to avoid the conclusion that the Fourteenth Amendment meant to cover such interests as a separation by race in so primary an activity as education.”
In other words, Hand’s initial view aboutBrown was that state laws calling for segregated public schools violated the historic meaning of the Fourteenth Amendment, making them unconstitutional even under his conception of judicial restraint.
But in September 1957, months before Hand’s Holmes Lectures, Frankfurter and Hand exchanged a series of letters that seemed to help change Hand’s mind about Brown. The justice asked the judge:
I hope you can spare time and energy, and that your inclination will move you to do so, to tell me with particularity what you would do in my place were the constitutionality of the conventional [anti-]miscegenation statute before you. I ought to put only one qualification in your disposition of the problem: you are to accept loyally the Court’s decision on school segregation.
(In Frankfurter’s place, Hand would have had to accept Brown as a fresh precedent.)
One of the phony claims made at the time to undermine the authority of Brown in the face of southern disobedience to the ruling was that its real purpose was the “mongrelisation” of the races, by putting blacks and whites side by side in the classroom and then legalizing marriage between men and women of different races. The Supreme Court ducked this controversy, rejecting several cases that challenged anti-mixed-race marriage statutes, and waited until 1967 to strike them down.
Hand expressed uncertainty about the history of the Fourteenth Amendment and the breadth of the reach of its clause guaranteeing equal protection of the laws—uncertainty about how much that history justified his “thinking that the Amendment was passed in a spirit of extreme, indeed extravagant, egalitarianism in favor of Negroes.” But he went on, “If what I have said is true, I cannot see how we can possibly say that it does not deny ‘equal protection’ to Negroes to forbid their marriage with Whites.”
Frankfurter responded that Hand’s “reasoning and the conclusion to which it led you make me extremely uncomfortable” and rebuffed Hand’s understanding of the Fourteenth Amendment as if it were unsupported by history or interpretation and a threat to Frankfurter’s independence as a justice. How could Hand say that “color is absolutely barred as a basis of ‘classification’ allowed by ‘equal protection’? Is the answer that IT IS!! the iron intellectual prison within which the Fourteenth confines me?”
Frankfurter did not acknowledge that Hand’s view about the breadth of the Fourteenth Amendment’s reach was a respectable one. He did not acknowledge that rigid racial discrimination, exemplified by slavery, was the paradigm for the kind of denial that the equal protection clause of the Fourteenth Amendment prohibits.
Hand wrote back to Frankfurter, “I suppose I must say something about all this in my goddam lectures.” “All this” turned out to include saying that Brown was unacceptable. Before this exchange with Frankfurter, Hand’s view had been that the ruling was correct and that he supported it. In The Bill of Rights, by contrast, as Gunther summarized, Hand said that “Brown constituted impermissible second-guessing of legislative choices.” In Hand’s words, the Court assumed “the role of a third legislative chamber.”
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https://www.nybooks.com/articles/2013/12/05/judge-who-shaped-our-law
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