Oregon State Bar Bulletin FEBRUARY/MARCH 2002

The Last Flowers of Civilization

Judicial independence in the federal system is not free from accountability. This excerpt from Judge Learned Hand's discussion of judicial independence and the political climate in 1942 might have been written about present-day Oregon:

'Constitutions are deliberately made difficult of amendment; mistaken readings of them cannot be readily corrected. Moreover, if they could be, constitutions must not degenerate into vade mecums or codes; when they begin to do so, it is a sign of a community unsure of itself and seeking protection against its own misgivings. And that is especially true of such parts of a constitution as I am talking about; these particularly must be left imprecise...

'If an independent judiciary seeks to fill [these imprecisions] from its own bosom, in the end it will cease to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs; it must be content to stand aside from these fateful battles. There are two ways in which the judges may forfeit their independence, if they do not abstain. If they are intransigent but honest, they will be curbed; but a worse fate will befall them if they learn to trim their sails to the prevailing winds. A society whose judges have taught it to expect complaisance will exact complaisance; and complaisance under the pretense of interpretation is rottenness. If judges are to kill this thing they love, let them do it, not like cowards with a kiss, but like brave men with a sword.

'And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of 'right and wrong-between whose endless jar justice resides.' You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know - that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press apart an advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens - real and not the factitious product of propaganda which recognizes their common fate and their common aspirations - in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature; we may even now be witnessing their uprooting and disappearance... They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe before the spectacle of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear - pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.'

-L. Hand, The Spirit of Liberty (Dillard, ed.) (Alfred A. Knopf 1953) at 162-65.

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