Learned Hand’s Spirit of Liberty

On a spring Sunday, eighty years ago in Manhattan’s Central Park, a hundred and fifty thousand newly naturalized citizens gathered to recite the oath that they would “bear true faith and allegiance” to the United States. They made their declaration as part of a celebration of “I Am an American Day,” created by Congress to salute the blessings of citizenship. In attendance were almost a million and a half people, who heard speeches by an immigrant from Prussia, Senator Robert F. Wagner, and by the Greenwich Village-born son of immigrants from Italy, Mayor Fiorello LaGuardia.

Leading everyone in the Pledge of Allegiance, after brief remarks, was Judge Learned Hand, who was seventy-two and in his twentieth year on the U.S. Court of Appeals for the Second Circuit, in Manhattan. Until then, most Americans had never heard of him, though Hand was well known in legal circles. His remarks—barely five hundred words—turned him into a revered public figure.

Hand spoke in a mid-Atlantic accent, reflecting his upbringing in a family of lawyers and judges in Albany. You can hear him talking, in a hearty, singsong voice, at the end of a short Library of Congress recording made two years earlier, of him singing a Civil War ballad that he had learned as a boy. Hand’s remarks, titled “The Spirit of Liberty,” came a couple of weeks before June 6, 1944—D-Day and the beginning of the end of the Second World War in Europe. His subject was what the United States was fighting for in that global war—what it meant to be an American. (He did not, in addressing the new citizens in the park, acknowledge the Native Americans here first or the enslaved African Americans who hadn’t chosen to come here.)

He began:

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. For this reason we have some right to consider ourselves a
picked group, a group of those who had the courage to break from the
past and brave the dangers and the loneliness of a strange land. What
was the object that nerved us, or those who went before us, to this
choice? We sought liberty; freedom from oppression, freedom from want,
freedom to be ourselves. This we then sought; this we now believe that
we are by way of winning.

The heart of his message was this:

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.

Hand’s remarks first drew attention in a Talk of the Town piece in this magazine, unsigned but written by Philip Hamburger, who had heard Hand’s speech broadcast live on WNYC. Hamburger relates how he went down to the courthouse on Foley Square to get a copy of the speech from Hand. He describes the judge as “a rugged, stocky man” with “bushy eyebrows,” who was pleased to hear that Hamburger liked his remarks. Hand had heard, he said, from only three or four other people. Reprints of the speech soon followed, in the Times Magazine, Life, and the Reader’s Digest. It drew exuberant praise, including a comparison, by the Virginia State Bar Association, to the “simplicity and beauty” of Abraham Lincoln’s Gettysburg Address.

To Gerald Gunther, an influential legal scholar who wrote a biography of Hand, the judge’s view of liberty traced back to “his commitment to the doubting spirit.” By disposition and philosophy, Hand rejected eternal truths, with, Gunther wrote, “a sense that his own uncertain, uncomfortable search was a legitimate stance.”

In 1917, as a district-court judge, Hand had expressed that spirit when he stopped New York City’s postmaster from banning The Masses magazine. That year, President Woodrow Wilson had signed the censorious, First World War-influenced Espionage Act, which had made mere criticism of the government a federal crime. In four cartoons, three articles, and a poem, the government alleged, The Masses had made false statements that interfered with America’s war efforts, caused insubordination in the military’s forces, and obstructed recruitment. Hand narrowed the meaning of the law by saying that Congress could not have intended it to be a broad prohibition against criticism of the government. That, he explained, would “disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Instead, he held, Congress must have intended to ban “direct incitement” to lawbreaking, which, he found, The Masses had not engaged in.

The Second Circuit soon reversed Hand’s decision, and the magazine went out of business. Hand was passed over for appointment to the Circuit, which went to a far less distinguished district-court judge (who was later convicted of obstructing justice and defrauding the United States, through a list of malefactions that included selling his vote in cases). Hand made it to the Second Circuit seven years later and, for a dozen years, served as its renowned chief judge.