The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Remarks to the HLS FedSoc Alumni Dinner
And in memory of Prof. Charles Fried.
Recently I was honored to be chosen as the faculty advisor to Harvard's student chapter of the Federalist Society, the successor to the late Charles Fried. This past weekend I gave some remarks at their annual alumni banquet, both to remember Prof. Fried and to set out some challenges before us. In case any of you have an interest in reading them, I thought I'd post the remarks here.
I'm very honored and deeply grateful to be here as the second faculty advisor to the Harvard Law student chapter of the Federalist Society.
It's unusual, to say the least, in a chapter now four decades old, that I would be only the second such advisor. And so I don't think we can let this occasion pass without remembering the first such advisor, Charles Fried, and without raising a glass in his memory.
Charles Fried led a life and career that should offer grounds for admiration to all of us. Solicitor General of the United States, Associate Justice of the Supreme Judicial Court of Massachusetts, the Beneficial Professor of Law, a teacher and mentor to many, a father and a grandfather—as they say, we should all be so lucky.
My father Alan Sachs, HLS Class of 1970, was Prof. Fried's student and remembers him and his class fondly. Another of Prof. Fried's students, a dissertation advisee, recently told me how her first substantive meeting with him involved the two of them starting to discuss what she had written and then arguing with raised voices and at full tilt for an hour—at the end of which he broke into a broad smile and asked when they should meet to discuss the next chapter.
Those of my colleagues who've had more time to share with him on this faculty universally praise his wit, his collegiality, and his generosity of spirit. And if, when my turn comes, my successor as the third faculty advisor to our FedSoc chapter can have as much respect for me as all those I've met here have for Prof. Fried, I'd be a lucky man indeed.
And Prof. Fried was, as well as an extraordinary man, extraordinarily lucky.
Karel Fried was born in Prague in 1935—and for Jews, "born in Prague in 1935" is not usually the prologue to a long or happy life. His family was able to flee in 1939 just ahead of the Nazis, arriving in New York in 1941. As he told us at the faculty lunch table a few months ago, his father initially intended that the family settle in South America; it was only the happenstance of the young Charles's contracting a childhood illness, restricting their immigration for several months, that kept them in the United States instead of Bogotá. That was our good fortune as well as his; but it wasn't just good fortune that made the United States a place where the Fried family could go, and where they could be among the few who were safe in a very dangerous world.
The principles of the Federalist Society, whose Harvard chapter Prof. Fried long advised, are very familiar to you, and I have no need to repeat them. But I worry, thinking of Prof. Fried's life and example, that we often think of them in reverse order.
We spend a lot of time talking about the third principle, how the province and duty of the judiciary is to say what the law is, and not what it should be. Most of our time in class, and a good deal of your time out of class, is spent reading, and discussing, and underlining, and highlighting, and annotating, and summarizing, the work of courts and judges, and seeing how often they fall short of that ideal. And this is worth doing, both for its own sake and as part of your training to be lawyers.
When we can raise our eyes a little bit from the details of the casebooks, we're able to spend a reasonable amount of time—though somewhat less than before—on the second principle, that the separation of governmental powers is central to our Constitution. We debate it, we design student symposia around it, we center on it our abstract debates of constitutional interpretation and legal theory. And this, too, is worth doing, both as scholars and as citizens.
But the most important principle, on which we spend perhaps the least amount of our very limited time, is the one that's listed first—that the state exists to preserve freedom. And it is this that our Constitution and its separation of powers, and our judges and courts and lawyers who work under them, are designed to serve.
In 1861, in the early days of a Civil War in which no one yet knew that the Union would survive, Abraham Lincoln jotted down some fragmentary thoughts on how the Constitution, even the Union itself, didn't exist for their own sake, but rather to preserve the freedoms named in the Declaration of Independence—the Proverbial "golden apple in the silver frame."
Thinking of the remarkable prosperity and energy of the Republic he now led, he wrote,
All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something is the principle of "Liberty to all"—the principle that clears the path for all—gives hope to all—and, by consequence, enterprize, and industry to all.
The expression of that principle in our Declaration of Independence was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government and consequent prosperity. No oppressed people will fight and endure, as our fathers did, without the promise of something better than a mere change of masters.
The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made not to conceal or destroy the apple; but to adorn and preserve it. The picture was made for the apple—not the apple for the picture.
So let us act, that neither picture or apple shall ever be blurred, or bruised or broken.
That we may so act, we must study, and understand the points of danger.
The fragment breaks off there. And while our days, thankfully, are not so dark as Lincoln's were, we, too, must study and understand the points of danger, even as we study and understand secured transactions or the Chenery doctrine or whether the executive has a removal power.
To have a government that's strong enough to preserve freedom from those who would destroy it from without—those from whom Prof. Fried's family fled—and yet principled enough to resist the shortcuts and compromises and self-serving impulses that can undermine freedom from within, is something historically rare and practically difficult.
We don't have a world in which men are angels, as Federalist 51 tells us; nor do we have a ready supply of angels who are to govern men. All we've got is "a government which is to be administered by men over men," in which "the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself."
Sometimes it may seem like we're faced with a choice between leaders who would scorn the powers of government, the better to praise its limits; and those who would scorn the limits on government, the better to praise its powers.
Our work in the law is only one small corner of the work that has to be done to create a society whose strength can adequately protect its freedoms, and whose freedoms—as Lincoln described—can properly inspire and justify that strength.
That's why FedSoc is a society for law and public policy studies—considering not only the work set out for lawyers and judges, but that set out for legislators, officials, soldiers, scholars, and ordinary citizens. It is not for us to complete that work, but neither are we free to refuse it.
Only a few months before he died, Professor Fried gave his last Harvard faculty workshop, on a book project entitled Metanoia—a term with which I'm willing to admit I was unfamiliar beforehand (and maybe some of my colleagues were too), but which Oxford defines as "The act or process of changing one's mind."
The book discussed a series of people who had changed their minds on very important issues, even late in life. But in particular, metanoia is defined as an act of "penitence" or "repentance." Not just a rending of garments, with ashes and sackcloth and such, but a returning, a renewing—the kind of repentance that the author of Lamentations hoped would "renew our lives as in days of old."
I'm sure I disagreed with Prof. Fried on a variety of things, both before and after his various changes of mind. But I am convinced that his willingness to reconsider, to seek after the truth even late in life with the same energy and in the same spirit of inquiry as at the beginning, is a quality to which we should all aspire—and a quality that a nation that many see as in need of renewal needs too, just as much in its two-hundred-and-fiftieth year as in its first.
It's often said of child-rearing—and with girls at nine and eleven, I can authoritatively agree—that the days are long but the years are short.
Your time in law school may seem like a very long three years, but it also goes by very quickly, more quickly than you might expect. And indeed our lives in the law, as well as out of it, even lives as long and accomplished as Professor Fried's, are shorter than we think too. My hope tonight is that we may all use them as well as he did, and leave something even better for those who come after us.
