Will the real Learned Hand please stand up
People are often surprised when I tell them my name, they think it’s odd that anyone could be called “Learned Hand”. I always reply that maybe it’s their name that is strange. After all, my name is in the dictionary, and in almost any encyclopedia.
Of course, I can’t take credit for that. The Learned Hand you’ll find there is the famous lawyer who once said
“Our dangers, as it seems to me, are not from the outrageous but from the conforming; not from those who rarely and under the lurid glare of obloquy upset our moral complaisance, or shock us with unaccustomed conduct, but from those, the mass of us, who take their virtues and their tastes, like their shirts and their furniture, from the limited patterns which the market offers.”
He was an incredible man, and not just because of his take on conformity. He fought for free speech and other important issues during his tenure on the bench at the Second court of Appeals in New York, and (as Wikipedia’s article on Learned Hand points out) is considered by many to be the most influential American judge that didn’t serve on the US Supreme Court.
The fact that I boast the name Learned Hand is not an accident, however. My father was good friends with the judge, who once complained that he had no son to pass his name onto. And so my father decided to honor him by naming me Learned Jeremiah Hand.
The “Jeremiah” part is also an interesting story. If you do a search for the term Jeremiah Hand you’ll find references to the Jeremiah Hand house in Cape May on the coast of New Jersey. That Jeremiah was a wealthy landowner, and one of my ancestors. So when my father decided to give me a name that combined the monikers of such eminent men, I guess he was showing his hope for my ambitions.
The Hand family has known a number of prominent members, including those that can be traced back to the Puritans and the early American colonists. My brothers and sister and I were always taught to be proud of that heritage, and I guess being teased as a kid about having that name gave me the impetus to search out that family history a little bit more.
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It may be worth noting that the First Amendment was essentially shaped by Judge Hand.
Oliver Wendell Holmes took most of the credit for carving out a fundamental right to free speech during the red scare. In the string of cases regarding Eugene V. Debs, Abrams, Schenck and other unsavory activists, Holmes subtly shifted positions and determined that government had no authority to imprison socialists solely because of their political beliefs. Holmes receives much credit today for his radio ready quote from the days before radio, “I disagree with the words that you say yet I will defend, to the death, your right to say them.”
In an often overlooked footnote to history, however, it is certain that Hand and Holmes shared a long train ride from New York to Boston just two weeks before Holmes handed down a vitriolic dissent in Schenck. In that dissent, Holmes argued that the U.S. constitution extended a cloak of protection far beyond the archaic British model (freedom from censorship prior to publication).
Reliable sources argue that Holmes had taken a lot of heat from his students for joining the majority in Debs, and that the government in fact should have no authority to punish revolutionary speech alone, when it is unaccompanied by violent attempts to overthrow government itself. Holmes liked this idea, but did not know how to get there in a fashion consistent with the court’s standing precedent. During that train ride, Hand devised the logical escape hatch: argue that Holmes had been vying for punishment of the action the entire time and that if his cohorts on the court were affirming convictions based on socialist speech and thought alone, well then - he had in reality been dissenting all along.
Brilliant. Although Holmes did not live to see the day when his elegant dissents became law, they eventually did so, in Sullivan v. New York Times (1964 I think). The masterful opinion by Brennan carried a majority of the court and entrenched the First Amendment to where it is today .
. . . or where it was anyway, prior to President Bush’s classification of U.S. citizen Hamdi as an enemy combatant. This allowed the military to seize him at Chicago/O’Hare and hold him on a Navy Brig off the coast of Georgia for years without access to counsel or any set trial date. The current court has done a good job dodging this issue, although they will likely have to own up to it soon. According to the sitting administration, the “war on terror” has many fronts and no ascertainable end. “The freedoms enumerated in the constitution were not designed for such an open-ended conflict, nor can they be defended when the enemy has neither face nor name.”
Perhaps we should all be thankful that a constitutional law professor will be taking over.
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