Keynote Speaker: Charles Fried ’60
Charles Fried ’60 is a constitutional law and contracts scholar who served under President Ronald Reagan as the 38th solicitor general of the United States from 1985 to 1989.
If you stick around long enough, you get lots of invitations. None have meant more to me than the invitation by the Class of 2015 to speak at your graduation. When you stand before intelligent women and men for four hours a week for 12 weeks, and have asked them to spend many more hours reading material assigned by you, you are exposed for what you are. That now, three years later, you have asked me to come back to help you say goodbye to this great place, means more to me than any honorary degree could.
In reply, I want to talk about what Columbia Law School meant to me and how I have carried its lessons with me into everything I do. I came to Columbia Law School in the fall of 1958. Because I came with advanced standing, I had only two years here. But in those two years, I had many extraordinary teachers: Walter Gellhorn, Harry Jones, Gerald Gunther, and many others. But particularly Herbert Wechsler. He taught me criminal law (during the years that he was writing the Model Penal Code), constitutional law (as he was working on his Holmes Lectures—“Toward Neutral Principles of Constitutional Law”), and federal courts in the early years of the great Hart and Wechsler casebook, to which other casebooks are like casual daubs to the Sistine Chapel. It is not too much to say that Herbert Wechsler was my legal education, and I carry his lessons into every class I teach, every article I write, every argument I make.
Herbert Wechsler was probably the greatest law teacher and legal scholar of his time, but he too carried within his work the imprint of his teachers, most strikingly that of Jerome Michael. We hear the voice of Herbert Wechsler and of generations of Columbia law teachers, when we read what Jerome Michael wrote: “The Final and Ultimate end of legal education ought to be the good artist in law, the good practitioner of law as an instrument of government, or the good scientist in law.” It is with Jerome Michael that, in 1937, Wechsler published in the Columbia Law Review the monumental “A Rationale of the Law of Homicide,” which was seed for the great Michael and Wechsler criminal law casebook—the model of the casebook as symposium and encyclopedia—out of which, in turn, grew the Model Penal Code.
But the roots of this greatness go back further still, and they are specific to this law school and the New York legal culture out of which they grew. The preeminent late-19th century product of that tradition was Benjamin Nathan Cardozo, who, like you, graduated from this law school—in 1891 at the age (like Wechsler) of 21. And, Harlan Fiske Stone, who graduated from this school in 1898, was dean for 13 years, and went on to be a justice and then chief justice of the United States. Stone was preceded as chief justice of the United States by another prominent New Yorker and graduate of this school, Charles Evans Hughes. And, nurtured in this same Columbia Law School soil from which you have grown, came the next generation of great New York judges, Stanley Fuld and Charles Breitel, who continued the Cardozo tradition, making the New York Court of Appeals one of the preeminent common law courts of the common law world.
And of course, there is Wechsler’s student Constance Baker Motley, not only a great trial judge, but a trial and appellate lawyer at the heart of the civil rights struggle. She drafted the original complaint in Brown v. Board, she visited Martin Luther King and Medgar Evers in jail, and argued—as the first African-American woman to argue in the Supreme Court—on behalf of James Meredith’s effort to attend and so integrate ‘Ole Miss.
What characterized all these jurists, judges, lawyers, and scholars, who learned from each other, studied with each other, as have you and I, is the power of reason. It is striking that one of the most eloquent statements of this power and its embodiment in law came from a man who is not in this Columbia Law School apostolic succession, who indeed had hardly any formal education at all, Robert Jackson. Making the opening statement for the United States at the Nuremberg Trial of the major war criminals, he said: “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
That tribute, the tribute that power pays to reason, is the whole substance of the rule of law. Government, order are, after all, to begin with, about absolute power. Without power, reason would be only poetry. But without reason, power is also tyranny, brutality. Reason is not just about means. I will not pause to argue the point, but I will say that reason imposes measure, balance, on power. Subject to reason, power becomes order, and law becomes possible—and, with law, justice. That is what Jackson was getting at in that unforgettable phrase. And the intersection with Columbia Law School is quite salient. Wechsler worked in Jackson’s Justice Department, and, Telford Taylor, for many years a professor in this law school, was Jackson’s chief assistant and successor at Nuremberg. He must at least have vetted that famous opening statement.
But there is a lesson that you have taught me, or at least recalled to me and underlined, during our time together and by your invitation to me today. However much law is wound on the armature of reason, however much rigor and discipline and the hard work of learning keep the elements of law taut and serviceable, however much sloppiness of thought, mere approximation in citation, just plain ignorance, render reason and law flaccid, unserviceable, and downright dangerous, like a poorly designed or executed building, still the practice of law, the study of law, and the exercise of argument, is a human activity, and a humane activity. It is accompanied by and leads to friendship, mutual respect, and downright pleasure. Your adversaries in court are still addressed as “my sister,” “my brother.” In the 4th Circuit, after an oral argument, the judges come down from the bench and shake hands with the lawyers. The justices of the Supreme Court—mostly—preface their use of the verb “dissent” with the adverb “respectfully.” In classes here, even though unfortunately and in a sense inevitably the students are competing against each other, I have sensed no meanness, no cruelty. Is it possible to live your life in the law that way? Can you fight, but always fight clean? Well, that too needs to be learned, although some people have a natural talent for it, a natural courtesy.
You and I are not just lucky but blessed as standing in this great succession. Herbert Wechsler made me the law teacher I am. Jerome Michael had helped make him, and before Michael were Stone, Hughes, Cardozo. I began by saying how honored I have been by your invitation to speak to you at your graduation. Now I think you can see why I felt that honor: because there is a suggestion in that invitation that I have, at the very start of your careers in the law, helped transmit that tradition—of Cardozo to Stone to Wechsler, from Wechsler to Fuld and Breitel and Motley, and then to you.
Thank you, my friends. Be well, and don’t forget us.