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Who Said “To Ask the Question is to Answer It?”

Posted By Cliff Tuttle | June 8, 2014

No. 1,061

Learned Hand leaning on one of his learned hands.

Learned Hand leaning on one of his learned hands.

I thought it was Learned Hand, a famous Chief Judge on the Second Circuit Court of Appeals .  I  said so at least three times in prior posts.  Wrong! Hand didn’t say it and if he did, he didn’t say it first.  Neither did his younger cousin Augustus Noble Hand, who sat on the same Court.

Learned was first appointed judge at age 37 by Calvin Coolidge in 1909.  Augustus was appointed by Woodrow Wilson in 1914.  But the catch-words “to ask the question is to answer it” appear in a well-known decision of the United States Supreme Court in 1895.  And it was used in one earlier but lesser known Supreme Court decision.

This sentence was penned by Mr. Justice Brewer in the case of In Re Debs, 158 U.S. 5t64 (1895).  Eugene V. Debs was a labor leader who, by organizing the Railroad workers’ strike,  was charged by the United States with conspiracy to interfere with interstate transportation of persons and property, as well as the carriage of the mails. His attorney was Clarence Darrow. Mr. Justice Brewer wrote:

“Doubtless, it is within the competency of Congress to prescribe by legislation that any interference with these matters shall be offences against the United States, and prosecuted and punished by indictment in the proper courts. But is that the only remedy? Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the question is to answer it.” Id at 581.

But the sentence was used a few years earlier earlier by Mr. Justice Matthews in his 1882 U.S. Supreme Court opinion in Heald v. Rice, 104 U.S.737 (1892). And since then, it has been used at least 5 times by the U.S. Supreme Court and in about 174 cases around the country, according to Google Scholar.

Most recently, Justice Thomas used it, without attribution, in his 2011 dissent in Sykes v. U.S., 564 US 1. Pennsylvania courts have used these words in about 14 reported cases  However, according to Google Scholar, the sentence has never been used by the Second Circuit Court of Appeals, where the Hands sat.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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