Who Is … Learned Hand?
Billings Learned Hand (1872 – 1961) was a federal judge for the United States District Court in the Southern District of New York and later was the Chief Justice of the Court of Appeals for the Second Circuit. He was from a politically active family (historically Democrat) and a line of lawyers. Judge Hand dropped his given name of Billings early in life saying it was too pretentious. The judge was only passingly successful as a lawyer; it wasn’t until he was elevated to the level of federal judge that his critical thought, liberal bent and attitude of judicial restraint shone vibrantly.
Judge Hand lived during a period often cited as judicially progressive (the late Nineteenth and early Twentieth Century saw the Supreme Court active in reviewing large volumes of state legislation based on an application of “due process” to economic and social issues). Judge Hand advocated for judicial restraint and leaving law-making to the legislature; professionally, he did not believe in overturning or striking down legislation even if his personal opinion a particular law was negative. Learned Hand even felt that the Bill of Rights was not to be used by courts to overrule statutory law; thus his arguments that the “due process” clauses of the Fifth and Fourteenth Amendments should not be used by judges to meddle in legislation.
Judge Hand was a strong advocate of the principle of free speech. His free speech test, most famously found in Masses Publishing Co. v. Patten (1917), was that anything short of directly inciting illegal action should be protected speech. This view was overturned on appeal and Supreme Court Justice Oliver Wendell Holmes, Jr.’s “clear and present danger” test became the standard for free speech in the June 1919 Schenck v. United States decision. Perhaps it isn’t suprising to find that Hand is credited as one of three or four judicial theorists who’s arguments seemed to sway Justice Holmes so that when he wrote his famous and ubiquitous “shout[ing] fire in a crowded theater” statement in the November 1919 decision of Abrams v. United States, his dissent modified free speech tests for the last century.
Judge Hand may have been a somewhat forgettable lawyer and a standout as a federal judge but his greatest contribution was to the body of judicial theory; most especially in regards to libertarian interpretation moderated by judicial restraint.
