Judge Learned Hand on Communism and Islam in the Dennis Case

Judge Billings Learned Hand (1872-1961) was a US  judge and judicial philosopher. Hand served on the United States District Court for the Southern District of New York and subsequently the United States Court of Appeals for the Second Circuit. Judge Hand has the distinction of having been quoted more often than any other lower-court judge by legal scholars and the Supreme Court of the United States.

Even my good friend  and colleague Andrew C. McCarthy, a perspicacious, erudite legal scholar, who is utterly fearless in combating the threat of jihadism, was apparently unaware of Judge Hand’s clear-eyed, direct analogy between ancient Islamic and modern Communist totalitarianism, stated plainly in the 1950 decision, United States v. Dennis, I83 F.2d 20I, 2I3 (2d Cir. 1950).

McCarthy, in his sound debunking of the legal casuistry employed to defend jihad terrorists, ostensibly under their first amendment rights (“Free Speech for Terrorists?,” February 28, 2005 Commentary Magazine), noted,

Learned Hand, soberly considering the Communist threat, found it cold comfort that violent insurrection might await a moment when “success seems possible.”

But McCarthy then added this observation:

And Hand did not figure on militant Islam.

As it turns out, McCarthy’s overall assessment is more insightful, if somewhat paradoxically, by omission! On closer scrutiny, Judge Hand did in fact make an explicit reference to Islam’s inherent militancy in United States v. Dennis. Thus McCarthy’s concise formulation of Judge Hand’s opinion accurately captures its essence—and relevance to the contemporary scourge of resurgent global jihad—despite missing a direct nexus made between Communism, Islam, and their shared fanaticism.

In his famous conclusion (from paragraph 51), Judge Hand states,

It is of course possible that the defendants are inspired with the fanatical conviction that they are in possession of the only gospel which will redeem this sad Planet and bring on a Golden Age. If so, we need not consider how far that would justify the endless stratagems to which they resorted; and it is not for us to say whether such a prosecution makes against the movement or, on the contrary, only creates more disciples; ours is only to apply the law as we find it. Once the question is answered whether the Smith Act is valid, and whether there was evidence before the jury from which they might hold it violated, we can find no privilege and no right denied them which had substance. We know of no country where they would have been allowed any approach to the license here accorded them; and none, except Great Britain, where they would have had so fair a hearing. Their only plausible complaint is that that freedom of speech which they would be the first to destroy, has been denied them. We acknowledge that that freedom is not always easy to protect; and that there is no sharp line which marks its scope. We have tried to show that what these men taught and advocated is outside the zone..

Earlier, in paragraph 15, Judge Hand, describing the font of militant global Communism, Communist Soviet Russia, made this direct analogy:

By far the most powerful of all the European nations [Russia] had been a convert to Communism for over thirty years; its leaders were the most devoted and potent proponents of the faith; no such movement in Europe of East to West had arisen since Islam.

Jules Monnerot’s, 1949 “Sociologie du Communisme,” was translated into English and published as “Sociology and Psychology of Communism,” in 1953. Monnerot made very explicit connections between pre-modern Islamic and 20th century Communist totalitarianism. The title of his first chapter dubbed Communism as “The Twentieth Century Islam.” He elucidates these two primary shared characteristics of Islam and Communism: “conversion”—followed by subversion—from within, and the fusion of “religion” and state. Citing Stalin (circa 1949) as the contemporary personification, Monnerot elaborated on this totalitarian consolidation (“condensation”) of power shared by Islam and Communism, and the refusal of these universalist creeds to accept limits on their “frontiers.” Monnerot further observes that to those who did not accept their ideology, or self-proclaimed “mission,” Communism—and Islam before it—were viewed as imperialistic religious fanaticisms. Finally Monnerot underscores how incoherent Western intellectual apologists for totalitarianism—whether Communist or Islamic—promote the advance of these destructive ideologies.

Five years later, Bernard Lewis, still considered by many to be their doyen of living Western Islamic scholars, confirmed Monnerot’s assessment. Lewis, in his 1954 essay “Communism and Islam,” expounded upon on the quintessence of totalitarian Islam, and how it was antithetical in nature to Western democracy, while sharing important features of Communist totalitarianism — most notably, global domination via jihad.

Consistent with his contemporary scholarly milieu, Judge Hand’s spontaneous comparison between Communism and Islam in a legal opinion, reflects a thoughtful, unapologetic mindset free from the corrosive influence of cultural relativism that plagues us today, six decades later. We must regain the thoughtful sobriety of that era if we are to preserve our hard won freedoms from the modern scourge of ancient Islamic totalitarianism, resurgent.

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