American Minute with Bill Federer
Judge Learned Hand "What then is the spirit of liberty?
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"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.
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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 Hand's
legal decisions were so respected they were referenced in
U.S. Supreme Court Cases.
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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. "
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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.
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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.
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In this,
Judge Hand
was in agreement with
James Madison. Madison
explained to Congress in 1794, that just because something needed to be done, it was not the Federal Government's job to do it:
"The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.
Charity
is
no part
of the
legislative duty of the government."
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George Orwell
wrote in a letter to H.J. Willmett, May 18, 1944:
"Everywhere the world movement seems to be in the direction of
centralized economies
which can be made to ‘work’ in an economic sense but which are not democratically organized and which tend to establish
a caste system."
George Orwell
wrote in
The Observer,
April 9, 1944:
"Collectivism
leads to concentration camps, leader worship, and war."
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Judge Learned Hand
wrote to Justice Felix Frankfurter, March 24, 1945, warning:
"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."
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In
Gregory v. Helvering
(2d Cir. 1934),
Judge 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."
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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 Antifa-style protestors was to overthrow the Constitution
and set up a government which would not allow free speech.
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In agreement,
Dwight Eisenhower
stated in the
TIME Magazine
article, "Eisenhower on Communism," October 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."
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This interpretation may also be applied to modern-day
Islamists
whose expressed intentions are to subvert the Constitution to establish
totalitarian Islamic Sharia Law.
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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."
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A similar statement was made by
Supreme Court Justice Robert H. Jackson,
who had served as U.S. Attorney General under Franklin Roosevelt, and Chief U.S. Prosecutor at the Nuremberg Trials.
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Justice Robert Jackson
wrote in the foreword of the book
Law in the Middle East
(1955):
"In any broad sense,
Islamic law
offers the American lawyer a study in
dramatic contrasts.
Even casual acquaintance and superficial knowledge – all that most of us at bench or bar will be able to acquire – reveal that its
striking features
relative to our law are not likenesses but
inconsistencies,
not similarities but
contrarieties.
In its source, its scope and its sanctions,
the law of the Middle East
is the
antithesis of Western law."
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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."
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Along the same lines,
George Orwell
wrote in his novel
1984:
"The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.
His heart sank as he thought of the enormous power arrayed against him, the ease with which any Party intellectual would overthrow him in debate, the subtle arguments which he would not be able to understand, much less answer."
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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.
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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.
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To become a
United States citizen,
immigrants have to
study the Constitution.
As a result, many
legal immigrants
have a
better understanding
of the U.S. Constitution than many Congressman.
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The
Oath
to become a legal citizen after 1929 required 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."
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On May 21, 1944, after comments by New York Mayor Fiorello LaGuardia, Senator Robert Wagner and clergymen of Protestant, Catholic and Jewish faiths,
Judge Learned Hand
gave his short speech,
"The Spirit of Liberty."
It was so well received that it was reprinted in
The New Yorker, The New York Times, Life Magazine
and
Readers Digest.
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In it,
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 ..."
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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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He 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."
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Judge Learned Hand
ended, after which he led everyone in the Pledge of Allegiance to the Flag:
"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."
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Judge 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."
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Judge Learned Hand,
who was nicknamed
"the tenth Justice of the Supreme Court,"
died AUGUST 18, 1961.
He 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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Schedule Bill Federer for informative interviews & captivating PowerPoint presentations: 314-502-8924
[email protected]
American Minute is a registered trademark of William J. Federer. Permission is granted to forward, reprint, or duplicate, with acknowledgment.
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