Commentary Magazine

The Bill of Rights, by Learned Hand

Judicial Review
The Bill of Rights.
by Learned Hand.
Harvard. 82 pp. $2.50.


In these three lectures, delivered at Harvard College, Judge Learned Hand endeavors to define the proper limits of the judicial power to review legislative action. On the whole, he is extremely wary of judges who act as lions under the throne—so much so, indeed, that he seems to prefer them to assume the role of pussy-cats. He does, to be sure, recognize that the Supreme Court’s assumption of the power to decide the boundaries of the authority of states, Congress, and President was essential to the successful operation of the system set up by the Constitution. But he gives it a purely pragmatic sanction, and does not regard it as logically inherent in the constitutional structure. Hence he concludes that “this power . . . need not be exercised whenever a court sees, or thinks it sees, an invasion of the Constitution. It is always a preliminary question how importunately the occasion demands an answer.”

In itself, this is not necessarily an extreme position; one may believe very strongly that it is the responsibility of the courts to uphold constitutional guarantees against the encroachments of the legislative and executive branches, and yet recognize that to do their job at all the courts must confine themselves to substantial issues. The Supreme Court obviously cannot concern itself effectively with the daily butchery of due process in a thousand traffic courts. Judge Hand indicates a considerable readiness to accept judicial restrictions on the legislative power when they are based on technical grounds. Thus he appears to approve the rejection of legislation because it delegates excessive powers to administrators and administrative tribunals, arguing that “the delegation of authority is pro tanto the abdication of authority over the subject matter by a transfer to others of authority that the legislature alone may exercise. Once we assume that the courts are to set the boundaries of each ‘Department’s’ authority, it follows that they must say where legislation begins, however hazy its boundaries may be.” As a matter of public policy, it is probably desirable that some limit be placed on the delegation of legislative authority; one feels this whenever one tangles with the maze of administrative regulations which assume the legislative function in many fields. But one may look in vain through the Constitution for any limitation on the right of delegation, with the single exception of the provision banning army appropriations covering more than two years.



Nor can it be said that judicial assumption of power in this field has been necessary to effect the smooth working of the constitutional machinery; as long as delegation is confined to powers clearly possessed by Congress, it cannot lead to conflict of authority between the central and state governments, or between the departments of the former. Moreover, the complexity of modern society is such that delegation of legislative power in many fields is inevitable; any real attempt by the courts to eliminate it would produce chaos. Hence if they are to impose a limit on delegation of legislative power, that limit will necessarily be arbitrary, and almost certainly shifting and indistinct. In fact, it is. Judge Hand seems similarly tolerant of court rejections of the use of the taxing power to effect social purposes, in eases where it was clear that the accomplishment of these purposes was the sole intent of the law, and revenue no part of its raison d’être; he cites the Child Labor and Guffey Coal Act cases. But aside from the judicial mind-reading involved, and the neglect of the Constitution to forbid taxation for purposes other than revenue, the record of the courts has been far from consistent in this question also. Thus the Harrison Narcotics Act has been upheld, under comparable circumstances. In the first two cases, the Supreme Court imported into the law the economic beliefs of its members, something it would be unlikely to do today; in the third, it gave ear instead to the moral postulates of the community, as it still often does.

In contrast to his tolerance for this type of judicial review, Judge Hand appears to have little use for court decisions invalidating legislation, whether Federal or state, when it conflicts with the specific guarantees of rights contained in the Constitution. This applies to the guarantees of the first eight amendments, to the due process and equal protection clauses of the Fourteenth (as in the integration cases), and to the use of those clauses to make the provisions of the Bill of Rights applicable to state action. He says that the limitations on Congressional power in the Bill of Rights may be regarded either as embodiments of the limitations current in 1787; as eternally valid expressions of “Natural Law,” binding on all branches of government, or as mere recommendations. The first alternative he states, but does not discuss; the second he rejects, while apparently conceding that it was the one generally accepted by the Founding Fathers, on the ground that eternal truths are not available for consultation by the judiciary. (While this observation is quite plausible, its relevance to the issue is not altogether clear, since the letter of the Constitution is available to the judges, when they choose to consult it. The question is not whether the liberties it guarantees are eternally valid, but whether their enumeration in the Constitution means that they are to be regarded as valid restrictions on the legislative power as long as they remain there; if their validity ceases to be generally accepted, the Constitution can after all be amended.) Judge Hand himself chooses the third alternative, to “read them as admonitory or hortatory, not definite enough to be guides on concrete occasions, prescribing no more than that temper of detachment, impartiality, and an absence of self-directed bias that is the whole content of justice.” But the content of justice is—or should be—a good deal more than that. It consists not only in the impartial application of principles, but in the principles themselves, as Anatole France pointed out when he said that “The law, in its majestic impartiality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” Judge Hand justly mocks the imprecision of the legal use of such words as “reasonable”; something of the same sort enters into his rejection of the “clear and present danger” limitation on legislative interference with freedom of speech and press. Yet even these criteria seem to me to be models of precision next to those of “impartiality” and “detachment,” when these latter are separated from any objective standards.



There is a case to be made for legislative supremacy, in the name of the popular will. But it is not a case which is consistent with the preservation of a system which distinguishes between constitutional and statute law, and gives precedence to the former. And it is also not a case which Judge Hand is willing to make—though this is not always as clear as it might be. It is not surprising that these lectures have been quoted by supporters of the Butler-Jenner proposals to curb the Supreme Court, but Judge Hand has since gone on record against such measures. And this is consistent with the position which he advances here; he believes that the courts must have final authority, but that they should not use it to protect the liberties of citizens against legislative intrusion. This is not because he does not believe in these liberties; he has on more than one occasion indicated his dissatisfaction with the erosion to which they have been subjected in recent years. But he believes the legislative judgment that they must be curtailed should be controlling, irrespective of the terms of the Constitution or the opinions of the judges. This seems to me a dangerous doctrine, all the more so in view of the frequency with which legislative bodies take a cavalier attitude toward civil liberties, confident that the courts will remedy any abuses of which they may have been guilty.



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