Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P21 ppsx

for his capture by the U.S. government and $1 million by the Serbian government. The tribunal expects to try Karadzic in early 2012 and believes it will complete its final trials and appellate work sometime in 2013. FURTHER READINGS International Criminal Tribunal for the former Yugoslavia (ICTY), www.icty.org (accessed September 23, 2009). “The Lesson of Slobodan Milosevic’s Trial and Tribulation.” 2003. Economist 366. Wald, Patricia M. 2002. “Punishment of War Crimes by International Tribunals.” Social Research 69. CROSS REFERENCES Arbitration; International Court of Justice; International Law; Jurisdiction. v HAMER, FANNIE LOU TOWNSEND FANNIE LOU HAMER worked for voter registration for African Americans in the U.S. South and helped establish the Mississippi Freedom DEMOCRATIC PARTY (MFDP), which successfully challenged the all-white Democratic party in Mississippi. Hamer was born October 6, 1917, in Montgomery County, Mississippi. She was the twentieth and youngest child of Jim Townsend and Lou Ella Townsend, who were share- croppers in rural Mississippi. Hamer grew up in a tar paper shack and slept on a cotton sack stuffed with dry grass. She first went into the cotton fields to work when she was six years old, picking thirty pounds of cotton a week. By the time she was 13 years old, Hamer was picking 200 to 300 pounds of cotton each week. Because of her family’s poverty, she was forced to end her formal education after the sixth grade. In 1944, when she was 27, Hamer married Perry (“Pap”) Hamer, a sharecropper on a nearby plantation owned by the Marlowe family, near Ruleville, Mississippi. Hamer spent the next 18 years working in the fields chopping cotton. Her husband also ran a small saloon, and they made liquor to sell. In August 1962 Hamer attended a meeting sponsored by the SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (SCLC) and the STUDENT NONVIOLENT COORDINATING COMMITTEE (SNCC, pronounced Snick). The SCLC was founded in 1957 by a group of blackministersled by MARTIN LUTHER KING, JR., and coordinated the CIVIL RIGHTS activ-ities of ministers. SNCC was organized in 1960 by students and other young people, and SNCC workers had recently come to Ruleville to organize voter registration drives. At that time only five percent of African Americans in Mississippi who were old enough to vote had been allowed to register. Ten days later a group of white men rode through the town and fired 16 shots into the homes of those involved in the black voting drive. That night Hamer fled to her niece’shouse40 miles away. A few weeks later, SNCC workers brought her to the SNCC annual conference in Nashville. She later returned to the Marlowe plantation, where she found that her husband had been fired from his job and her family had lost its car, furniture, and house. Hamer then became a field secretary for SNCC in Ruleville, earning $10 per week, and Fannie Lou Townsend Hamer 1917–1977 ▼▼ ▼▼ 19251925 19751975 19501950 ❖ 1917 Born, Montgomery County, Miss. 1914–18 World War I 1950–53 Korean War ◆ 1962 Attempted to register to vote in Indianola, Miss.; joined SNCC as field secretary ◆ 1963 Passed literacy test for Miss. voter registration; arrested and beaten in jail for violating segregation laws in Winona, Miss. ◆ 1964 Helped found the Mississippi Freedom Democratic Party (MFDP) ◆ 1961–73 Vietnam War ❖ 1977 Died, Ruleville, Miss. 1970 NAACP filed and won Hamer v. Sunflower County to integrate local school system 1968–71 Served on Democratic National Committee ◆ ◆ 1968 Mississippi Loyalist Democratic Party (MLDP) won right to represent Mississippi at Democratic National Convention 1965 Joined the Selma march; ran for Congress in SNCC-sponsored counterelection ◆ 1965 Voting Rights Act passed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 188 HAMER, FANNIE LOU TOWNSEND began organizing a poverty program. She worked with the local people, educating them about their right to vote, and she became an effective fund-raiser for SNCC, traveling to northern towns to speak about life as an African American in Mississippi, and participating in civil rights demonstrations across the country. Hamer and her associates were often harassed, intimidated, and even beaten. Hamer helped found the Council of Feder- ated Organizations, which brought large num- bers of white northerners into Mississippi in the summer of 1964, known as Freedom Summer. These volunteers helped with voter registration and other civil rights activities, and their work focused national attention on the SEGREGATION still rampant in the South. In April 1964, Hamer helped found the Mississippi Freedom Democratic party. The MFDP was organized as an alternative to the all-white Mississippi Democratic party, which barred African Americans from its activities. The MFDP planned to challenge the regular Democratic party’s right to represent Missis- sippi at the Democratic National Convention in Atlantic City, New Jersey, in August 1964 and hoped to win the right to be seated as the state’s legal delegation. Before leaving for Atlantic City, the MFDP held its own convention and elected 64 African Americans and four whites as delegates to the national convention. Hamer was elected vice chairwoman. Democratic president LYNDON B. JOHNSON, who was running for reelection in 1964, became worried that the MFDP would disrupt party unity and cause him to lose the election to Republican senator BARRY M. GOLDWATER. Johnson went to work to stop the MFDP by having his supporters threaten and harass MFDP suppor- ters on the Credentials Committee, which was scheduled to hear the MFDP’s case at the convention. In nationally televised proceedings before the committee, Hamer testified about the difficult life of African Americans in Mississippi and how they were prevented from participating in the political process. She also described a brutal beating she received while in jail for violating segregation laws. The beating left Hamer nearly blind in one eye. Following Hamer’ s testimony, viewers from across the United States telegrammed their delegates, urging them to support the MFDP. Realizing he would now have to de al with the NEW PARTY, Johnson worked out a settlement that called for the seating of two at-large delegates from the MFDP and a pledge that segregated delegations would not be seated at the 1968 convention. Hamer spoke out strongly against the compromise, and the delegation voted to reject it. Following the 1964 convention, Hamer continued her work in the CIVIL RIGHTS MOVE- MENT . In March 1965 she joined King and hundreds of others in a 54-mile march from Selma, Alabama, to Montgomery, Alabama. She also traveled with a SNCC delegation to Africa. Back in Ruleville, Hamer and two other women ran for Congress against white con- gressmen in a special counterelection organized by SNCC. In the Democratic primary, their names were not on the ballot because the Mississippi election commission said they did not have enough signatures of registered voters on their petitions, and the white candidates won. In the SNCC election, however, the women’s names were listed on the ballot, and they won. The women pressed their claim to be seated in Congress in Washington, D.C. They argued that Mississippi county registrars had Fannie Lou Hamer. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION HAMER, FANNIE LOU TOWNSEND 189 refused to certify the signatures of black voters on their petitions. In September 1965, after nine months of investi gation into their claim that the state had illegally obstructed their attempts to place their names on the ballot, the U.S. House of Representatives rejected their challenge by a margin of eighty-five votes. In August 1968, Hamer again traveled to the Democratic National Convention in Chicago as a member of the alternative Mississippi delega- tion, renamed the Mississippi Loyalist Demo- cratic party (MLDP). Again, the party went before the Credentials Committee seeking rec- ognition, and again, a compromise was offered, this time to seat 21 members of each delegation. The MLDP refused to compromise, and this time, the regular delegation was unseated. When Hamer finally took her seat at the convention, she received a standing ovation. Hamer went on to serve on the Democratic National Committee from 1968 until 1971. She also continued her civil rights work in Mis- sissippi. In May 1970 Hamer and officials of the National Association for the Advancement of Colored People ( NAACP) in Indianola filed a CLASS ACTION lawsuit in federal district court, claiming that the Sunflower County, Missis- sippi, school districts maintained a dual school system for black and white students and that black teachers and principals were not ade- quately protected against losing their jobs. The suit asked the court to order that one integrated school system be established and maintained. In Hamer v. Sunflower County (N.D. Miss., June 15, 1970), the district court, relying heavily on data in a repor t from a biracial committee headed by Hamer, ordered the county to merge its schools into one public school system. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court in United States v. Sunflower County School District, 430 F.2d 839 (5th Cir. 1970). Hamer continued to work for the poor in Ruleville, organizing poverty programs, raising money for low-income housing, and starting a day care center. Her favorite project was the Freedom Farm Cooperative. She started the farm with 40 acres, which eventually increased to 650 acres on which 5,000 people grew their own food. In 1976 Hamer was honored in Ruleville on Fannie Lou Hamer Day. She died March 14, 1977, in Mound Bayou, Mississippi, from heart disease, cancer, and diabetes. Engraved on the headstone of her grave in Ruleville are the words “I am Sick and Tired of Being Sick and Tired.” FURTHER READINGS Lee, Chana Kai. 1999. For Freedom’s Sake: The Life of Fannie Lou Hamer. Urbana: Univ. of Illinois Press. Mills, Kay. 2007. This Little Light of Mine. Lexington, KY: Univ. Press of Kentucky. Rubel, David. 1990. Fannie Lou Hamer: From Sharecropping to Politics. Englewood Cliffs, NJ: Silver Burdett. CROSS REFERENCES Civil Rights Movement; Voting. v HAMILTON, ALEXANDER Alexander Hamilton, as a lawyer, politician, and statesman, left an enduring impression on U.S. government. His birth was humble, his death tragic. His professional life was spent forming basic political and economic institutions for a stronger nation. As a New York delegate at the Constitutional Convention, Hamilton advocat- ed certain powers for the central gover nment. His principles led to his rise as chief spokesper- son for the FEDERALIST PARTY. The party had a short life span, but Hamilton’s beliefs carried on through his famous FEDERALIST PAPERS. In these documents he advocated broad constitutional powers for the federal government, including national defense and finance. According to Hamilton, a lesser degree of individual human liberties and CIVIL RIGHTS would follow federal powers. His deemphasis of freedom put him at odds with other Founders, especially Thomas Jefferson’s Democrats. However, he backed his beliefs with a strong record of public service from the Revolution onward. Through his contributions in the U.S. Army, in the TREASURY DEPARTMENT , and as a lawyer, many still recog- nize him as a commanding architect of the United States government. Hamilton was born January 11, 1757, on Nevis Island, in the West Indies. His parents never married. His father, the son of a minor Scottish noble, drifted to the West Indies early in his life and worked odd jobs throughout the Caribbean. His mother died in the Indies when he was 11. Hamilton spent his early years in poverty, traveling to different islands with his father. At the age of 14, while visiting the island of St. Croix, he met a New York trader who recognized his natural intelligence and feisty spirit. The trader made it possible for IF THIS IS A GREAT SOCIETY,I’D HATE TO SEE A BAD ONE . —FANNIE LOU HAMER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 190 HAMILTON, ALEXANDER Hamilton to go to New York in pursuit of an education. Hamilton attended a preparatory school in New Jersey and developed contacts with men who had created a movement seeking colonial independence. When he later entered King’s College (now Columbia University), he became active in the local patriot movement. The American Revolution had been brewing in the background, and Hamilton took a keen interest in the battles that flared between the colonists and the British around Boston in 1775. Instead of graduating from college, he opted to join a volunteer MILITIA company. He reported for orders to General George Washington’s chief of artillery, Colonel Henry Knox. In his duties, Hamilton assisted in the famous crossing of the ice-jammed Delaware River on Christmas Night, 1776. Knox called Hamilton to Washington’s attention. In March 1777, Hamilton was appointed aide to the commander in chief. With Washington, Hamil- ton learned his first lessons on the need for central administration in dealing with crises. He also took advantage of his contacts with General Philip Schuyler, a wealthy and influen- tial man within the military. In March 1780, Schuyler’s young daughter, Elizabeth Schuyler, agreed to marry Hamilton. The relationship provided Hamilton with both additional con- tacts inside U.S. politics and generous financial gifts from his father-in-law. Hamilton came to resent the limits of his position as aide to Washington and aspired to greater challenges. A minor reprimand afforded him the opportunity to resign from his services in April 1781. Hamilton had already received an education beyond anything that King’s or any other college could have offered. However, he went to New York with his wife and took up the study of law in early 1782. In July of that year, he was admitted to the bar. As a lawyer and as an intellectual who commanded growing respect, Hamilton repre- sented New York in the CONTINENTAL CONGRESS of 1782, in Philadelphia. Here, he spoke with an ally, a young Virginian, JAMES MADISON. The two expounded on the merits of strong central administration. Most of the other delegates represented the common fears of citizens in the United States—apprehensions about the abu- sive tendencies of strong central powers and, more important, the possibility of oppression in ◆ Alexander Hamilton 1757–1804 ▼▼ ▼▼ 17501750 18001800 17751775 ❖ ❖ 1757 Born, Nevis Island in the West Indies ◆ ◆ 1769 Moved from St. Croix to New York ◆ 1775 Joined volunteer miltia ◆ 1776 Declaration of Independence established United States of America 1776 Hamilton crossed the Delaware with Washington 1775–83 American Revolution ◆ 1782 Admitted to N.Y. bar; represented New York in Continental Congress of 1782 ◆ 1789–95 Served as first secretary of the U.S. Treasury 1787 Represented New York in 1787 Constitutional Convention ◆ 1798–1800 Rejoined army during French- American War; served as inspector general 1804 Mortally wounded in gun dual with political rival Aaron Burr; died, New York City 1800 Cast deciding vote that gave Jefferson the presidency ◆ 1777 Appointed aide to General Washington Alexander Hamilton. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAMILTON, ALEXANDER 191 the future. Hamilton and Madison failed to sway a majority of the delegates to vote for their ideas. In the end, the Congress adopted the ARTICLES OF CONFEDERATION, a body of principles intended to knit the new states into a union that was only loosely defined. Hamilton left Philadelphia frustrated. He returned to New York, built a thriving law practice, and gained fame as a legal theorist. In 1787 he spent a term in the New York Legislature and joined the movement designed to create a new Constitution. Dur ing this time, Madison and John Jay—a future chief justice on the U.S. Supreme Court—helped Hamilton draft a series of essays called The Federalist Papers. The essays stand as fundamental state- ments of U.S. political philosophy. The Articles of CONFEDERATION had already begun to show inadequacies, as the federal government had no real power to collect the money necessary for its own defense. The authors of The Federalist Papers argued that a strong federal government would constitute not a tyranny but an improvement over the current system of relatively weak rule. Their arguments helped allay the commonly held fears about central power. At the 1787 Constitutional Convention in Philadelphia, Hamilton again served as a delegate from New York. This time, his ideas were received with more favor. In the drafting of the new Constitution, and the creation of a more effective government, many of Hamilton’s Federalist beliefs came into play. In the area of defense, for example, Article I, Section 8, of the Constitution read, “The Congress shall have Power To raise and support Armies To provide and maintain a Navy To provide for organizing, arming, and disciplining, the Militia.” The role of the government in raising finances to do these things would put Hamil- ton’s ideas to the test. Hamilton took on the test personally. In 1789, when President Washington began to assemble the new federal government, he asked Hamilton to become the nation’sfirst secretary of the treasury. For the following six years, Hamilton developed a fiscal and economic system based on a national coin- age, a national banking system, a revenue program to provide for the repayment of the national debt, and measures to e ncourage industrial and commercial development. He sought a vigorous, d iversified economy that would also provide the nation with the means to defend itself. He stirred a considerable amount of controversy with certain propo- sals, such as the need for tariffs on imports, several kinds of excise taxes, the development of natural resources, a friendship with England, and opposition to France during the French Revolution. However, without such a concrete agenda, many historians have argued, the United States could not have survived its years of initial d evelopment. Because of Hamilton’s decisive stance on some issues, a split occurred between, and even within, political parties. Hamilton and JOHN ADAMS spoke the ideas of the Federalists. Madison joined Jefferson in the DEMOCRATIC- REPUBLICAN PARTY. Even though Hamilton had previously worked alongside SECRETARY OF STATE Jefferson, the two were now, as Washington noted, “daily pitted in the cabinet like two cocks.” Hamilton stressed the need for a strong central government, while Jefferson emphasized individuals’ rights. Their rivalry, among the most famous political clashes in U.S. history, led to a significant and ongoing level of frustration for both sides. Because of the deadlock, Hamilton retired from his secretarial position in 1795 and returned to the PRACTICE OF LAW. Through his service in government and his connections with the Schuyler family, Hamilton became a prominent and prosperous lawyer. His practice extended to wealthy clients in New York and in other states, both individuals and partnerships. It resembled the practices of modern corporate lawyers, because he also represented banks and companies. The bulk of his civil practice took place in maritime litigation, which boomed with Euro- pean interests in the U.S. market. His most important admiralty case involved the sale and export to Europe of large quantities of cotton and indigo. Def endants Gouveneur and Kemble had incurred damages to the head merchant in their trade, Le Guen. Hamilton took on the case as attorney for Le Guen. He was assisted by AARON BURR, with whom he had worked in New York. In Le Guen v. Gouveneur, Hamilton helped the merchant successfully sue his agents for $120,000—at the time, one of the largest awards in a personal damage suit. JAMES KENT, chancellor REAL LIBERTY IS NEITHER FOUND IN DESPOTISM OR THE EXTREMES OF DEMOCRACY , BUT IN MODERATE GOVERNMENTS . —ALEXANDER HAMILTON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 192 HAMILTON, ALEXANDER of the New York bar, remembered Hamilton’s performance in the trial as displaying “his reasoning powers his piercing criticism, his masterly analysis, and his appeals to the judgment and conscience of the tribunal.” A grateful Le Guen wanted to pay Hamilton a fee commensurate with the size of the judgment. Hamilton refused anything more than $1,500. Burr took a much larger fee at his own discretion. This was the beginning of strained developments between Hamilton and Burr that would result in a future, climactic confrontation. As a private citizen, Hamilton had amassed considerable power. In letters to politicians and newspapers, he continued to make a number of government-related proposals. At least four of them figured into future developments in the U. S. political structure. First, he suggested dividing each state into judicial districts as subdivisions of the federal government’s judicial branch. Second, he proposed consolidating the federal government’s revenues, ships, troops, officers, and supplies as assets under its control. Third, he pushed for the enlargement of the legal powers of the government by making certain already existing laws permanent, particularly the law authorizing the government to summon militias to counteract subversive activities and insurrections. Finally, he proposed the addition of laws that would give the courts power to punish SEDITION. Through letters to leaders and citizens, as through his Federalist Papers , Hamilton’s ideas were received, although not always easily, into the political mainstream. In 1798 the United States prepared for war with France. Hamilton decided to rejoin the Army as a major general. He was assigned the additional duties of inspector general until 1800. In 1800 Jefferson campaigned for presi- dent with Hamilton’s former partner in the Le Guen settlement, Burr, as his running mate. The two received identical numbers of electoral votes for the 1800 presidential election. At that time all candidates ran for the presidency. The winner became president and the individual in second place became vice president. Hamilton, an elector for New York, refused to go along with the Federalists’ plans to deny Jeffer son the presidency. Hamilton voted for Jefferson in- stead of Burr, partly because he could stand Burr even less than his ideological rival. Jefferson won the election. In 1804 Burr ran for governor of New York and became embittered by more of Hamilton’s insults during the campaign. When Burr lost again, he challenged Hamilton to a duel. On July 11, 1804, the two men met at Weehawken Heights, New Jersey. Hamilton received a mortal wound from Burr’s pistol shot, and died in New York City the next day. As the United States evolved in political, legal, and economic dimensions, Hamilton’s contributions remained part of its basic struc- ture. His legacy went on to affect the way the rest of the world interpreted the proper role of government. Numerous poli tical experiments took place in the following centuries, but still, Hamilton’s notions of a strong central govern- ment made other systems appear weak in comparison. In a letter to the Washington Post on January 28, 1991, biographer Robert A. Hendrickson asserted that Hamilton’s doctrine lives up to its model status as “a beacon of freedom and financial success in the modern world. It has peacefully discredited agrarianism, COMMUNISM, and totalitarianism.” FURTHER READINGS Brookhiser, Richard. 2000. Alexander Hamilton, American. New York: Free Press. Chernow, Ron. 2004. Alexander Hamilton. New York: Penguin. Cooke, Jacob Ernest. 1982. Alexander Hamilton: A Profile. New York: Scribner. Emery, Noemie. 1982. Alexander Hamilton: An Intimate Portrait. New York: Putnam. Epstein, David F. 2007. The Political Theory of the Federalist. Chicago: Univ. of Chicago Press. Flaumenhaft, Harvey. 1992. The Effective Republic, Adminis- tration and Constitution in the Thought of Alexander Hamilton. Durham, NC: Duke Univ. Press. Randall, Willard Sterne. 2003. Alexander Hamilton: A Life. New York: HarperCollins. CROSS REFERENCES Constitution of the United States; “Federalist, Number 10” and “Federalist, Number 78” (Appendix, Primary Docu- ments). HAMMER V. DAGENHART At the beginning of the twentieth century, U.S. reformers sought to end the practice of child labor. Young children were sent into factories and mines to work long hours for low wages. Aside from the physical demands placed upon children, labor robbed them of a chance to obtain an education. Some states enacted laws to regulate child labor, but others ignored these efforts and found competitive advantages in having a cheap supply of labor. Congress GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAMMER V. DAGENHART 193 finally responded in 1916, when it passed the Keating-Owen Child Labo r Act, of September 1, 1916, c. 432, 39 Stat. 675. The statute prohibited the use of interstate commerce for goods and materials made with child labor. Congress believed that the Constitution’s COMMERCE CLAUSE permitted it to act to regulate child labor, but the U.S. Supreme Court thought differently. In Hammer v. Dagenhart, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101 (1918), the Court ruled the act unconstitutional, basing its decision on a constricted interpretation of the Commerce Clause and an expansive view of state governments’ powers. The decision pro- voked Justice OLIVER WENDELL HOLMES to write one of the most significant dissenting opinions in the history of the U.S. Supreme Court. Roland H. Dagenhart filed a lawsuit in North Carolina on behalf of his sons Reuben and John, challenging the Keating-Owen Act. Under the provisions of the law, his two sons would have been barred from working in a cotton mill, as one son was under 14 years old and the older son was under 16 years of age. Dagenhart asked the U.S. district court to strike down the law as unconstitutional as a violation of the Commerce Clause and the TENTH AMENDMENT. The relevant part of the law prohibited the shipment of goods in interstate or foreign commerce if “within thirty days prior to the time of removal of such product” children had been employed or pe rmitted to help make them. The law applied to children under the age of 16 who worked in mines; to children under the age of 14 who worked in mills, canneries, workshops, factories or manufacturing establishments; and to children between 14 and 16 years of age who worked more than eight hours per day, more than six days in any week, or after 7 p.m. or before 6 a.m. These provisions effectively barred the Dagenhart sons from working and thereby deprived the family of needed income. The district court agreed with Dagenhart and held the act unconstitutional. The Supreme Court, in a 5–4 decision, upheld the district court’s ruling. Justice WILLIAM DAY , in his majority opinion, agreed that the Commerce Clause gives Congress the power to regulate commerce among the states and with foreign countries. However, the power to regulate did not mean that Congress had the power to prohibit certain commerce. Day acknowledged that prior Court rulings had upheld federal laws that banned the movement of certain goods in interstate commerce but these decisions rested “upon the character of the particular subjects” at issue. In Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492 (1903), the Court had upheld a law that banned the movement of lottery tickets in interstate commerce. In Hipolite Egg Co. v. United States, 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364 (1911) the Court sustained the constitutionality of the Pure Food and Drug Act, which prohibited the shipping of impure foods and drugs in interstate commerce. The Court had also upheld the MANN ACT in Hoke v. United States, 227 U. S. 308, 33 Sup. Ct. 281, 57 L. Ed. 523 (1913). This law prohibited the movement of women in interstate commerce for the purposes of PROSTITUTION. Finally, the Court had sustained a federal law that regulated the shipment of intoxicating liquors in inter- state commerce. Justice Day noted that in this decision, Clark Distilling Co. v. Western Mary- land Railway Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326 (1917), the Court had agreed that Congress could prohibit the shipment of liquor but only because of the “exceptional nature of the subject here regulated.” Advocates of the child LABOR LAW believed that all of these decisions supported the right of Congress to ban the products of child labor in interstate commerce, but Justice Day concluded otherwise. The key to the prior rulings was that interstate commerce was needed to accomplish the “harmful results.” With the child labor, law the goods in question were harmless. The effect of the act was to regulate child labor rather than to regulate transportation in interstate com- merce. In the Court’s view, this was an impermissible effect because of its definition of “commerce.” The manufacture of goods and the mining of coal were not commerce, only the transportation of such things were. Justice Day was troubled by the expansive reading of the Commerce Clause by Cong ress. If the Court had upheld this law, “all manufacture intended for interstate shipment would be brought under federal control.” He concluded that the framers of the Constitution would never have envisioned such a broad grant of authority, for it undercut the power of the states to regulate commerce within their borders. In addition, the Tenth Amendment reserved powers to the states’ governments, which included regulations “relating to the internal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 194 HAMMER V. DAGENHART trade and affairs of the States.” Thus, the Court’s reading of the Commerce Clause and the Tenth Amendment combined to defeat the constitutionality of the child labor law. It was up to the states to regulate child labor; Day noted that North Carolina had acted on the issue by prohibiting children younger than 12 years of age from work ing. A contrary interpre- tation would have had catastrophic conse- quences to the federal system of powers. Day concluded that “our system of government [would] be practically destroyed” if Congress could use the Commerce Clause to effect changes in work conditions within the states. Justice Oliver Wendell Holm es, in a dis- senting opinion joined by three other justices, could barely contain his contempt for the majority’s interpretation. He faulted the Court for imposing personal values “upon questions of policy and morals.” In a famous statement, Holmes declared: “I should have thought that if we were to introduce our own moral concep- tions where, in my opinion, they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States.” Holmes rejected the idea that Congress could not prohibit the movement of goods in interstate commerce, whether the products were judged harmful in themselves or the result of a harmful practice. He stated that “Regulation means the prohibition of something,” and then referred to prior rulings where the Court had upheld federal laws that had prohibited actions contrary to the wishes of Congress. In his view, Congress had sufficient authority to regula t e child labor. The states were free to regulate their internal affairs, but once goods crossed state lines, the Commerce Clause gave Congress the authority to regulate these shipments. The U.S. Supreme Court reversed Dagenhart in United States v. Darby, 312 U.S. 100, 312 U.S. 657, 61 S. Ct. 451 (1941). In its ruling, the Court acknowledged the “powerful and now classic dissent of Mr. Justice Holmes.” v HAND, BILLINGS LEARNED Learned Hand served as a U.S. district court judge from 1909 to 1924 and on the U.S. CIRCUIT COURT of Appeals from 1924 to 1951. Although he was a great and respected legal figure, he was never appointed to the U.S. Supreme Court. Hand cannot be classified as a liberal or conservative because he did not allow his personal biases to affect his judicial positions. He was careful to base his decisions on PUBLIC POLICY and laws as he understood them, and he did not believe it was the court’s job to create public policy. To Hand’s way of thinking, human values are relative. Although one value—such as protecting young people from obscenity—may prevail in a certain case, it might not prevail in ano ther. And he felt that the role of court decisions should be to provide realistic guidelines on which to base future decisions. Hand was born January 27, 1872, in Albany, New York. His was a distinguished family, with both his grandfather and his father being lawyers and Democrats. He was an only child, and his father died when he was fourteen. Hand attended private schools and graduated with honors and a degree in philosophy from Harvard in 1893. He gradua ted from Harvard Law School with honors in 1896. A year later he began practicing law in the state of New York. ▼▼ ▼▼ Billings Learned Hand 1872–1961 18751875 19251925 19501950 19751975 19001900 ❖ ❖ 1872 Born, Albany, N.Y. ◆ ◆ 1893 Graduated from Harvard College 1896 Graduated from Harvard Law School 1917 Invented the incitement test in Masses Publishing Co. v. Patten 1914–18 World War I ◆ 1909–24 Served as U.S. district judge 1924–51 Served on the U.S. Court of Appeals for the Second Circuit 1939–45 World War II ◆ 1939 Became chief judge of the Second Circuit ◆ 1944 Gave "The Spirit of Liberty" speech in Central Park 1950–53 Korean War ◆ 1958 The Bill of Rights published ◆ 1960 Third edition of The Spirit of Liberty published 1961 Died, New York City 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAND, BILLINGS LEARNED 195 In 1902 Hand married Frances A. Fincke and moved to New York City. Although successful, he found law practice to be boring. In 1909 newly elected president WILLIAM HOWARD TAFT appointed Hand to a federal judgeship. At age 37, Hand was one of the youngest appointees ever. He served the court for 15 years. A few years after his appointment, Hand supported Theodore Roosevelt’sBullMoose party presidential candidacy against Taft and became the Progressive party’scandidateforchief judge of the New York Court of Appeals. He undertook this first and last political venture of his career because of a concern that big business would control the nation. Whatever Hand’s reasons, Taft ne ver f orgot Ha nd’s “disloyalty,” and many believe that this act cost Hand his first chance to serve on the Supreme Court in 1922. Taft, who was then the chief justice of the U.S. Supreme Court, urged President WARREN G. HARDING not to nominate Hand. Throughout his career, Hand chose to follow his conscience while knowing he would forfeit promotionsasa result. For example, in 1917 Hand decided Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), rev’d 246 F. 24 (2d Cir. 1917). Masses was the first test of a new law, the ESPIONAGE ACT OF 1917 (Act of June 15, 1917, ch. 30, 40 Stat. 217). This act outlawed making “false statements with intent to interfere with the operation or success of the military ornaval forces whenthe United States is at war.” It also allowed the U.S. mail to ban materials containing such statements. Editors of an antiwar magazine, The Masses, took the New York City postmaster, Thomas G. Patten, to court for refusing to distribute the magazine. Patten argued that the ESPIONAGE Act allowed him to ban the publication. The Masses case came before the Second District at the beginning of WORLD WAR I, w hen the government viewed criticism of the war as a threat to national security. It came also when Hand was being considered for appointment to the Second Circuit Court of Appeals. At that time, the legality of written or spoken words was usually judged by the probable result of the words—that is, if the words had the tendency to produce unlawful conduct, then they could be banned. Hand took a different approach: his solution focused on the words themselves, rather than on a guess at the public’s reaction to them. He invented what became known as the incitement test: If the words told someone to break the law, if they instructed the person that it was a duty or interest to do so, then they could be banned. The Masses magazine praised conscientious objectors and antiwar demonstrators, but it never actually told readers they should behave similarly. For this reason, Hand ruled that the postmaster could not ban the magazine. Masses was just one of the many opinions Hand wrote that decided issues for which no precedent existed at the Supreme Court level. It is an early example of Hand’s strong opinions about free speech—that it should be protected and defined as a critical ingredient to democra- cy. He struggled for the rest of his career to convince his colleagues of the importance and complexity of issues relating to the FIRST AMENDMENT to the U.S. Constitution. Hand correctly predicted the consequences of his decision in Masses before he announced it. The decision was immediately appealed and reversed by the Second Circuit Court of Appeals, and he did not receive the appoint- ment to that court. But over time the climate of the country and the courts would change, and in the late 1960s the Supreme Court would adopt Hand’s incitement test as the standard for evaluating whether speech threatened security. Billings Learned Hand. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 196 HAND, BILLINGS LEARNED In 1924 Hand was appointed to the U.S. Circuit Court of Appeals for the Second Circuit. On the court, Hand served with many famous judges, including conservative judge Thomas Walter Swan, Hand’s first cousin Augustus Noble Hand, Harrie Brigham Chase, Charles Edward Clark, and JEROME N. FRANK. With his cousin and Swan, Hand made many widely respected decisions. Some obser- vers credit the craftsmanship of these decisions to the use of preconference memos, which were unique to the Second Circuit at that time. Under this method, each judge reviewed each case and drafted a tentative opinion without consulting the others. Only after each judge had reached an independent conclusion did all the conferring judges exchange memos and me et to discuss the case. This process encouraged more diverse and thorough thinking than with the usual method of approaching cases, in which one judge took the lead early on and drafted a single opinion. As a circuit court judge, Hand was limited to applying precedents of the Supreme Court and federal statutes in appeals before his court. He felt responsible to the precedents, and once he was sure he understood the basic reason for a law, he stood his ground despite any negative effects the decision might cause. Hand was again considered for the Supreme Court in 1931, this time by President HERBERT HOOVER . But Hoover felt obliged to offer the position to CHARLES EVANS HUGHES first, with the intention of appointing Hand when Hughes refused. To Hoover’s surprise, Hughes accepted. Hand became senior circuit judge of the circuit court in 1939 when his predec essor, Martin T. Manton , was indicted and eventually imprisoned for accepting bribes. Nine years later, the office of “senior circuit judge” was renamed the office of “chief judge,” pursuant to a revision in the federal judicial code. See Act of June 25, 1948, ch. 646, S 46(c), 62 Stat. 869, 871 (1948), codified as amended at 28 U.S.C. S 46(c) (1988). This was the highest position that Hand was to hold i n the courts. Hand’s final close call with the Supreme Court came in 1942, when FRANKLIN D. ROOSEVELT was seeking a replacement for Justice JAMES F. BYRNES, whom he had appointed to a cabinet position. Hand was in the runn ing, and his colleagues organized a strong campaign to persuade the president to choose him. However, in January 1943—the month that Hand turned 71—Roosevelt appointed WILEY B. RUTLEDGE,of Iowa: Rutledge was only 48 years old, and Roosevelt had insisted in 1937 that justices should not serve past age seventy. Ironically, Rutledge died in 1949, whereas Hand was still active and productive for another twelve years. Hand influenced the Supreme Court pro- foundly, though he did not serve on it. He was quoted in Supreme Court opinions and widely cited in legal journals. Even during his lifetime, he was widely regarded as one of the greatest judges in the English-speaking world. In 1944 Hand delivered a public speech that brought his thinking to the attention of people in nonlegal circles. His address, “The Spirit of Liberty,” was delivered in New York’s Central Park to more than 1 million people. The New Yorker, the New York Times, Life, and Reader’s Digest all reprinted portions of his address. Hand also publicly denounced McCarthyism during an address in Albany in 1952. Hand served on the council of the American Law Institute, a group of law professors, judges, and lawyers who organize and summarize the law in publications called the “Restatements of the Law” and “Model Codes,” two bodies of legal authority designed to provide a clear, practice- oriented exposition of legal rules, precedents, and principles. When Hand retired from the Second Circuit in 1951, he had served as a federal judge longer than anyone else in U.S. history. During his career he had written almost 3,000 legal opinions. They are fam ous for their careful construction and sharp understanding of all forces at work. He showed an ability to clarify legal concepts, even those in specialized areas such as admiralty (shipping) law, patent law, and IMMIGRATION law. After he retired, Hand still sat on the federal bench, wrote opinions, and handled a nearly full workload. Toward the end of his life, he complained to a friend that he was only writing 20 to 25 opinions per month, instead of his customary 50 to 60. The Spirit of Liberty, a collection of his papers and speeches originally published in 1952 had a third edition in 1960, while his 1958 Oliver Wendell Holmes Lectures at Harvard were published as The Bill of Rights (1958). IF WE ARE TO KEEP OUR DEMOCRACY , THERE MUST BE ONE COMMANDMENT : T HOU SHALT NOT RATION JUSTICE . —BILLINGS LEARNED HAND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAND, BILLINGS LEARNED 197 . from Harvard Law School with honors in 1896. A year later he began practicing law in the state of New York. ▼▼ ▼▼ Billings Learned Hand 1872–1961 18 751 8 75 19 251 9 25 1 950 1 950 19 751 9 75 19001900 ❖ ❖ 1872. Rights published ◆ 1960 Third edition of The Spirit of Liberty published 1961 Died, New York City 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HAND, BILLINGS LEARNED 1 95 In 1902 Hand. in 1 952 . Hand served on the council of the American Law Institute, a group of law professors, judges, and lawyers who organize and summarize the law in publications called the “Restatements of