Remarks of the Honorable John M. Walker, Jr. upon Receiving the Learned Hand Medal at the Law Day Dinner, May 1, 2002

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REMARK

REMARKS OF THE HONORABLE JOHN M. WALKER, JR.^ UPON RECEIVING THE LEARNED HAND MEDAL AT THE LAW DAY DINNER, MAY 1, 2002^^

Two generations ago, in the midst of another war, Judge Learned Hand memorably spoke of the spirit of liberty.1 I think it is fitting tonight, in these trying times, on the occasion of Law Day, to pause and to reflect upon our precious liberty under law and how it has endured. My brief message tonight is not complicated. Our liberty endures because it has always been, and must continue to be, tempered by a wise restraint.

Learned Hand gave eloquent expression to the idea of restraint. I will say a few words about that and about the circumstances in which he made his remarks. I will also touch upon three types of restraint in the law.

The first restraint is the restraint on liberty itself-we are not free, for example, to harm others. The second restraint is the restraint on governmental power that is spelled out in the IMAGE FORMULA6

Constitution. The third restraint is judicial restraint. It is a self-imposed restraint and it is of particular importance on this day, Law Day, and to this audience composed of accomplished judges and lawyers. I believe this third restraint to be the most critical of the three because it is the most vulnerable to abuse and because it is so essential to the well-being of the republic.

Let me begin with a few words about Judge Learned Hand, in whose name this award is given, and about the moment in time at which he spoke of the spirit of liberty. Judge Hand is widely considered to have been one of the four greatest judges of the first half of the twentieth century. The other three, Oliver Wendell Holmes, Benjamin Cardozo, and Louis Brandeis were all Supreme Court Justices. Judge Hand's career was here in the Second Circuit.

Learned Hand became a federal judge in 1909 and served for fifty-two years, first on the district court and then on the court of appeals.2 He made his mark as a great judge, not with a few grand decisions, but because his passion for the law was felt in every case and because he wrote his opinions with an almost poetic clarity. Judge Henry Friendly, who sat with Learned Hand in his last years, remembered the "great way in which [Hand] dealt with a multitude of little cases, covering almost every subject in the legal lexicon. Repeatedly he would make the tiniest glow-worm illumine a whole field."3

Learned Hand's reputation as a judge shone brightly; however, for most of his career it was largely confined to those within the profession, particularly the bench and bar of the Second Circuit. All that changed in May 1944 when Learned Hand delivered his speech on the spirit of liberty.

The occasion was a patriotic naturalization ceremony in Central Park for over 150,000 immigrants. It was attended by hundreds of thousands of people, most of whom came to enjoy a sunny Sunday in the park.4 Hand's brief speech, 519 words, was widely publicized and Judge Hand became nationally known and IMAGE FORMULA9

admired for it.5

Learned Hand's message on that spring day fifty-eight years ago was that the spirit of liberty lies in the hearts of the men and women of America and that, at its essence, American liberty under law was a spirit of restraint-restraint on individuals and on government alike.6 He made it clear, and I quote, that the spirit of liberty "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."7

This was a lesson that Judge Hand, and his listeners, knew all too well. Fascism had conquered Europe; communism had seized Russia; and Japanese militarism had subjugated the Far East.

For Learned Hand, the ideological certainty of totalitarianism was the antithesis of the spirit of liberty. …