Opinion, 0222 WYBJ, Vol. 45 No. 1. 14

AuthorHon. Michael K. Davis
PositionVol. 45 1 Pg. 14


Vol. 45 No. 1 Pg. 14

Wyoming Bar Journal

February, 2022

A Few Parting Words

Hon. Michael K. Davis

Wyoming Supreme Court Justice (Ret.) Cheyenne, Wyoming

I would like to say something about the law and the future of our court system. To look forward, as is often the case, I start with a long look back to the time of World War II.

On Liberty

Judge Hand was a judge on the highly respected Second Federal Circuit Court of Appeal—many thought he should be a Supreme Court justice, but his time did not come. Others say he was the greatest judge never to sit on the United States Supreme Court. Although Judge Hand authored many opinions that have survived and are studied in law schools today, he is perhaps best known for a speech he gave in 1944. During the dark days of World War II, a million and a half people gathered in Central Park in New York City for I Am an American Day, and Judge Hand spoke primarily to 150,000 newly naturalized citizens about the Spirit of Liberty, the moniker given to Judge Hand's speech and the title of a later book he authored. After noting that the most important thing to people who came to this country was liberty, he went on: "What do we mean when we say that first of all we seek liberty? 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 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 freedom to do as one likes.

That 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 mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias..."

Perhaps I have just become a fearful old man, but I do not believe the Rule of Law has ever been in greater jeopardy in my lifetime. I make no political statement when I say that—I only point out the discord and fundamental misunderstanding that exists in our society today.

It seems to me that courts are the very essence of the Spirit of Liberty: • We are not too sure that any person is right, and so we look for what is right. We have an elaborate system of rules, many of them enshrined in our constitutions, but made real and tangible by lawyers and judges who enforce them.

• Although nothing is perhaps more sure than a judgment, we reach it only after allowing all parties a chance to give judges the information they need and to be heard.

• We treat everyone the same because we must...

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