What happens when we lose 'judicial restraint'

Judge Learned Hand

Judge Learned Hand

“A conservative among liberals, and a liberal among conservatives,” he was not consistently conservative enough for Republican President Warren G. Harding and he was not consistently liberal enough for Democrat President Franklin Roosevelt. As a result, he was passed over several times to be a nominee for the U.S. Supreme Court.

His name was Learned Hand, who served as a judge for over 50 years, first on New York’s District Court, then on the U.S. Court of Appeals.

Judge Learned Hand’s legal decisions were so respected they were referenced in U.S. Supreme Court Cases. Though a political progressive, he was an advocate of judicial restraint, stating he could not “frame any definition that will explain when the Court will assume the role of a third legislative chamber and when it will limit its authority.”

In 1934, Judge Hand ruled in United States v. Schechter Poultry that Franklin Roosevelt’s “New Deal” federal law did not apply to a poultry firm which operated only within the state of New York. In 1937, Judge Learned Hand condemned Franklin Roosevelt’s attempt to pack the Supreme Court with as many as 15 justices in order to get the Court’s approval of his power usurping big government programs.

Writing to Justice Felix Frankfurter, March 24, 1945, Judge Learned Hand warned: “I confess it seems to me that we are pretty plainly headed for some fairly comprehensive collectivist ordering of industry; people don’t want it. … Can you have a collectivist democracy? The future has all sorts of creatures in its womb. … There seems to me great obstacles; a society in which the individual’s fate is completely in the hands of the government can scarcely manifest itself as a succession of resultants of ‘pressure groups’ – it won’t stand up.”

Judge Learned Hand, who was nicknamed “the tenth Justice of the Supreme Court,” died Aug. 18, 1961.

In Gregory v. Helvering (2d Cir. 1934), Judge Learned Hand wrote: “Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one’s taxes … Nobody owes any public duty to pay more than the law demands.”

In Dennis v. United States (I83 F.2d 20I, 2I3, 2d Cir. 1950), a plurality of Supreme Court Justices adopted Judge Learned Hand’s view that Eugene Dennis, General Secretary of the Communist Party USA, did not have a First Amendment right to free speech if his goal in organizing protestors was to overthrow the Constitution and set up a government which would not allow free speech.

In agreement, Dwight Eisenhower stated in the Time magazine article, “Eisenhower on Communism,” Oct. 13, 1952: “The Bill of Rights contains no grant of privilege for a group of people to destroy the Bill of Rights. A group – like the Communist conspiracy – dedicated to the ultimate destruction of all civil liberties, cannot be allowed to claim civil liberties as its privileged sanctuary from which to carry on subversion of the government.”

This interpretation may be applied to those wanting to subvert the Constitution to establish totalitarian Islamic Sharia Law.

Comparing Communism with Islam, Judge Learned Hand wrote in the decision: “By far the most powerful of all the European nations (Russia) had been a convert to Communism for over thirty years; its leaders were the most devoted and potent proponents of the faith; no such movement in Europe of East to West had arisen since Islam.”

Judge Learned Hand commented on the danger of allowing political correctness to intimidate people from voicing their opinions for fear of it being labeled “hate speech”: “That community is already in the process of dissolution … where faith in the eventual supremacy of reason has become so timid that we dare not enter our conviction in the open.”

Two weeks before the D-Day invasion in the last year of World War II, Judge Learned Hand was catapulted to national prominence when he gave a speech to the largest crowd ever assembled in New York City to that date. Nearly one and a half million met in Central Park, May 21, 1944, for the annual “I Am an American Day,” including 150,000 newly naturalized citizens about to make their oath of allegiance to the United States.

To become a United States citizen, the Oath required after 1929 that immigrants swear: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law (added 1950); that I will perform noncombatant service in the Armed Forces of the United States when required by the law (added 1950); that I will perform work of national importance under civilian direction when required by the law (added 1952); and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

After comments by Mayor LaGuardia, Senator Wagner and clergymen of Protestant, Catholic and Jewish faiths, Judge Learned Hand gave his short speech, “The Spirit of Liberty,” May 21, 1944, which was reprinted in the New Yorker, the New York Times, Life magazine and Readers Digest.

Judge Learned Hand stated: “We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. … We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. …”

Judge Hand continued: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. … And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. …”

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Judge Hand added: “What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

Judge Learned Hand ended, after which he led everyone in the Pledge of Allegiance: “In the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.”

Judge Learned Hand’s speech echoed an earlier view from noted British writer G.K. Chesterton, who penned in “What is America” (“What I Saw In America,” 1922): “America is the only nation in the world that is founded on creed. That creed is set forth … in the Declaration of Independence … that all men are equal in their claim to justice, that governments exist to give them that justice. … It certainly does condemn … atheism, since it clearly names the CREATOR as the ultimate authority from whom these equal rights are derived.”

Judge Learned Hand wrote: “The use of history is to tell us … past themes, else we should have to repeat, each in his own experience, the successes and the failures of our forebears.”

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What happens when we lose 'judicial restraint'
Source: WND