Jurisprudence
Hand has been called one of the United States' most significant judicial philosophers. A leading advocate of judicial restraint, he took seriously Alexander Hamilton's formulation that "the judiciary ... may truly be said to have neither force nor will, but merely judgement." Any judicial ruling that had the effect of legislating from the bench troubled Hand. In 1908, in his article "Due Process of Law and the Eight-Hour Day", he attacked the 1905 Supreme Court ruling in Lochner v. New York, which had struck down a law prohibiting bakery staff from working more than ten hours a day. The Supreme Court went on to strike down a series of similar worker-protective laws on the grounds that they restricted freedom of contract. Hand regarded this principle as undemocratic. "For the state to intervene", he argued, "to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force."
The issue concerned Hand again during the New Deal period, when the Supreme Court repeatedly overturned or blocked Franklin D. Roosevelt's legislation. As an instinctive democrat, Hand was appalled that an elected government should have its laws struck down in this way. He viewed it as a judicial "usurpation" for the Supreme Court to assume the role of a third chamber in these cases. As far as he was concerned, the Constitution already provided a full set of checks and balances on legislation. Nevertheless, Hand did not hesitate to condemn Roosevelt's frustrated attempt to pack the Supreme Court in 1937, which led commentators to warn of totalitarianism. The answer, for Hand, lay in the separation of powers: courts should be independent and act on the legislation of elected governments.
Hand's democratic respect for legislation meant that he hardly ever struck down a law. Whenever his decisions went against the government, he based them only on the boundaries of law in particular cases. He adhered to the doctrine of presumptive validity, which assumes that legislators know what they are doing when they pass a law. Even when a law was uncongenial to him, or when it seemed contradictory, Hand set himself to interpret the legislative intent. Sometimes, however, he was obliged to draw the line between federal and state laws, as in United States v. Schechter Poultry. In this important case, he ruled that a New Deal law on working conditions did not apply to a New York poultry firm that conducted its business only within the state. Hand wrote in his opinion: "It is always a serious thing to declare any act of Congress unconstitutional, and especially in a case where it is part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do ..." Hand also occasionally went against the government in the area of free speech. He believed that courts should protect the right to free speech even against the majority will. In Hand's view, judges must remain detached at times when public opinion is hostile to minorities and governments issue laws to repress those minorities. Hand was the first judge to rule on a case arising from the Espionage Act of 1917, which sought to silence opposition to the war effort. In his decision on Masses Publishing Co. v. Patten, he defined his position on political incitement:
Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard for free government. The distinction is not scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.
In the case of United States v. Dennis in 1950, Hand made a ruling that appeared to contradict his Masses decision. By then, a series of precedents had intervened, often based on Oliver Wendell Holmes's "clear and present danger" test, leaving him less room for maneuver. Hand felt he had "no choice" but to agree that threats against the government by a group of Communists were illegal under the repressive Smith Act of 1940. In order to do so, he interpreted the "clear and present danger" in a new way. "In each case," he wrote, " must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." This formula allowed more scope for curbing free speech in cases where, as the government believed with Communism, the danger was grave, whether it was immediate or not. Critics and disappointed liberals accused Hand of placing his concern for judicial restraint ahead of freedom of speech. Hand confided to a friend that, if it had been up to him, he would "never have prosecuted those birds".
In the opinion of Kathryn Griffith, "The importance of Learned Hand's philosophy in terms of practical application to the courts lies generally in his view of the pragmatic origin of all law, but most specifically in his unique interpretation of the Bill of Rights." Hand proposed that the Bill of Rights was not law at all but a set of "admonitory" principles to ensure the fair exercise of constitutional powers. He therefore opposed the use of its "due process of law" clauses as a pretext for national intervention in state legislation. He even advocated the removal of those clauses from the Constitution. In Hand's analysis, "due process" is no more than a stock phrase to cover a long tradition of common law procedure. He contended that the term had inflated in scope beyond the meaning intended in the Bill of Rights. The result was the misuse of due process to invade rights that the Constitution was designed to protect. For Hand, a law passed by an elected body should be presumed to meet the test of due process. A court that decides otherwise and strikes down such a law is acting undemocratically. Hand maintained this stance even when the Supreme Court struck down anti-liberal laws that he detested. His reasoning has never been widely accepted. Critics of his position included his colleague on the Second Circuit, Jerome Frank, who wrote: "t seems to me that here, most uncharacteristically, Judge Hand indulges in a judgement far too sweeping, one which rests on a too-sharp either-or, all or nothing, dichotomy. ... Obviously the courts cannot do the whole job. But just as obviously, they can sometimes help to arrest evil popular trends at their inception."
Richard Posner, an influential appellate judge reviewing a biography of Hand, asserts that Hand "displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn't think judges should have anything to do with it." Posner suggests that although Hand is remembered today as one of the three greatest judges in American history, his status as a truly "great judge" was not based on his "slight" contributions to First Amendment jurisprudence or other fields of constitutional law, but rather on his decisions in other areas such as antitrust, intellectual property, and tort law.
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