Happy Constitution Day!

Constitution_Pg1of4_AC_icon_cut“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not the freedom to do as one likes.  This is the denial of liberty and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.

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 minds 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 has never quite forgotten — that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

Learned Hand — 1944

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3 Responses

  1. Bruce Boyden says:

    Richard Primus in Part 3 of his Yale Law Journal note ( http://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ylr106&id=441 ) has an excellent discussion of the difficulty the problem of a hypothetical Nazi takeover of the U.S. poses for constitutional theorists. I’ve long thought that Hand’s first paragraph above is essentially the only answer.

  2. Rick Garnett says:

    I have this Hand quote on the front-page of my Constitutional Law syllabus, in an effort to “trouble” a little bit (what I find to be) many students’ assumption that the Court (and courts) are what take care of our Constitution for us.