Justice Stephen G. Breyer*
At a memorial service held at Harvard Memorial Church on March 22, 2024, Justice Breyer delivered a tribute to Professor Fried. We are grateful to Justice Breyer for contributing a version of those remarks to this collection.
* * *
Charles Fried was a scholar, a teacher, a public servant, and a good friend of mine. He was widely read, both within and beyond the law. He sought always to get to the bottom of a subject, whether contracts, criminal law, or the law itself. But he was not just a theoretician. As a fine Solicitor General and a thoughtful justice of the Massachusetts Supreme Judicial Court, he understood also how law worked in practice.
As I said, Charles was a good friend. I was a student in the first class he taught at Harvard, criminal law in 1961. It was obvious to his students then that he loved to teach — even to teach those first-year students who meanly would look up obscure criminal law references and ask him about them at the end of class. The next morning Charles would always answer their questions, no matter how obtuse. He was a scholar as well, and no matter where else his career took him, Charles’s passion for legal education and scholarship never faded. It was obvious that he still loved teaching and scholarship even at the time of his last Harvard class, which I attended only just over a year ago.
And that scholar wrote much of value. Close to a dozen books. Countless articles. Many subjects, ranging from legal and moral philosophy all the way to contract law. Many of us, perhaps all of us, have read one of his most successful books, Contract as Promise,1 which has been prized both in the nonlegal, as well as the legal, worlds.
But Charles’s professional life was not simply books. He was determined to understand how the law worked in practice. He practiced law, starting at the top as Solicitor General of the United States. He then became a member of the Massachusetts Supreme Judicial Court. He was a skilled advocate and a fine judge, a public servant as well as an educator.
But it is clear, as I have said, that his heart was that of a teacher and scholar. He longed for Harvard. And that is where he returned. And fortunately for those of us who spent time around him here, Charles was much fun to be with. He was gregarious, sometimes even ebullient. He liked other people. He had a good sense of humor. He enjoyed conversation. And those characteristics served him well, for he liked to spend time with his colleagues, and they, in turn, liked to spend time with him.
He loved trying his ideas out on colleagues and friends, discarding some, developing others. But just as important as that, he always wanted to know what his colleagues were working on. He would listen to the thoughts of others. He would try to help them, and he usually succeeded. He learned from them too, and showing a virtue fine scholars possess, he was open to modifying his views in the process. Indeed, he has written about those who, like Gorbachev, Holmes, and others, changed their minds about morality and basic philosophy. Charles was willing to change his own mind about such things when presented with the evidence.
In a word, Charles Fried loved his life. He loved teaching, writing, practicing as a judge, advocating in the courts, and helping his colleagues and his students. He was good at all of those enterprises. But beyond that, he was generous, kind, and thoughtful.
Charles loved his marvelous family, Anne, Antonia, Gregory, and his grandchildren. Anne was a life partner in a happy marriage. She enjoyed his interests and ideas and shared hers with him. He loved and admired her. I heard much about Antonia’s studies to become a psychologist and her work after she became one. Charles was always interested in, and very proud of, his children and their families. I heard much about Cory and Antonia’s year or more in Rome at the Academy. That was a thrill for Charles too. And, of course, to write a book about moral philosophy with Gregory pleased him enormously.
Yes, we all, family, friends, colleagues, and others, will miss Charles Fried. He was a pillar, a stalwart, of the Harvard Law School community and the profession. Cicero once said, “It is . . . our duty to honour and revere[] those . . . who, as true patriots, have rendered . . . efficient service . . . .”2 Cicero added, “to their country,”3 but what he said applies equally well to those who have rendered efficient service to their school, to their community, and to the law. Charles searched for ways to make the law work better. He sought fairness and knowledge. The new generation of men and women who revere our legal institutions should consider this: Charles’s life showed that a man or woman today can have a family, work hard at the law, maintain the highest standards, participate in the community’s life, and make a difference for the better. Charles was a good citizen, determined, energetic, and prepared to make a difference. A public-spirited, hard-working teacher and scholar.
We honor and revere you, Charles. We, your family, your friends, your colleagues, the legal community, the public, we shall miss you. Yes, miss you very much indeed.
* Associate Justice (Ret.), Supreme Court of the United States; Byrne Professor of Administrative Law and Process, Harvard Law School.
John C.P. Goldberg*
Charles Fried was a giant.
Amidst an extraordinary seven-decade academic career, Charles served in the federal government as an Assistant Attorney General and U.S. Solicitor General, and as an Associate Justice on the Massachusetts Supreme Judicial Court. The author of seminal scholarly works in contract theory, jurisprudence, and moral philosophy, as well as legal and medical ethics and free speech, he also regularly wrote opinion pieces for broad audiences. In the classroom, he taught courses ranging from Constitutional Law, Federal Courts, and First Amendment to Commercial Law, Contracts, Labor Law, Roman Law, and Torts. And he was an avid participant in faculty lunches and workshops, always ready to weigh in with an opinion, an anecdote, or knowledge drawn from his infinite reservoir.
Personally, Charles was a sophisticate who maintained a patrician bearing. But anyone who spent time with him knew that he was warm, funny, and caring.4 His route to his office — he was there practically every day — took him past mine, which meant that, on most mornings, I could expect an exuberant “Hello, John!” as he walked in, eager to discuss a recent workshop presentation, court decision, or his latest project. Sooner or later, the conversation would inevitably turn to our shared interest in past masters of Anglo-American law: Cardozo, Holmes, Fuller, and many others. I did my best to keep up but mostly played the role of grateful student.
Others can write more knowledgeably than I about Charles’s public law scholarship and government service. I will instead focus on his place in modern legal philosophy and private law theory, and his commitment to open inquiry.
Starting in the early 1970s, a remarkable group of scholarly luminaries, all interested in challenging the dominance of utilitarian thinking in political and legal theory, met on a regular basis in Cambridge and New York City to discuss each other’s works. Its participants evidently had a sense of humor, adopting the acronym “SELF” — the Society for Ethical and Legal [Ph]ilosophy. In SELF’s early years, regular participants included Charles and his Harvard colleagues Frank Michelman, Robert Nozick, John Rawls, and Michael Walzer, along with leading lights at other schools, including Marshall Cohen, Ronald Dworkin, Owen Fiss, Gil Harman, Frances Kamm, Thomas Nagel, T.M. Scanlon, and Judith Thomson.
As a member of this philosophical dream team, Charles brought his own brand of Kant-inspired deontology to the legal academy, helping to reinvigorate a discourse of rights, wrongs, and obligations that had largely fallen out of favor among policy-oriented law professors.
Emblematic is his landmark work, Contract as Promise.5 At the time of its publication, contract law had been pronounced “dead.”6 The thought was that judges either were imposing, or should impose, liability for breach of contract on whatever terms they deemed socially beneficial, irrespective of the terms of the parties’ agreement.7 “Wrong,” said Charles, and rightly so. Contract law does not exist so that courts can advance the state’s policy goals. It enables persons and entities to fashion for themselves rights and obligations and makes courts available to enforce those rights and obligations.8
Contract as Promise is among a handful of enduring works in private law theory.9 While much of its significance lies in its claim that contract law helps see to it that persons fulfill the moral obligation to live up to their promises, it is also notable for resisting standard-issue legal-academic skepticism by explaining how concepts that comprise the field of contracts (“offer,” “acceptance,” “consideration,” “expectation damages”) are cogent and tend to cohere.10 This aspect of the book, along with its implicit account of contract law adjudication,11 helped lay the seeds for a new generation of private law scholarship.12
It would be tempting to suppose that a world-renowned scholar with a moralistic bent — not to mention one who held a chaired Harvard professorship and high government office — might tend toward self-satisfaction and certitude. Tempting, but wrong. Charles did not lack for confidence. And he had a flair for the categorical pronouncement.13 Yet he was relentlessly curious and reflective. Indeed, contrary to the standard pattern, he seemed to grow more so with age. A lifelong learner, he sat in on college courses to the end of his career. Somewhere around the age of 80, he was among the first Harvard Law School faculty members to own an Apple Watch.
In 1989, as Solicitor General, Charles famously argued to the Supreme Court that it should (mostly) overturn Roe v. Wade.14 Thirty years later, he published an essay explaining why he had come to believe that Roe’s core holding should be preserved.15 In 2015, after 50 years of brick-and-mortar teaching, he dove headfirst into developing an innovative online introductory Contracts course, complete with an entertaining set of Charles Fried avatars. At last count, it has enrolled over 600,000 students.16 At the time of his death, Charles was completing a book made up of portraits of kindred spirits — that is, eminent historical figures who were willing to question their own, deeply held convictions.
In our take-no-prisoners, performance-over-engagement moment, Charles’s example stands as wise counsel. A true scholar is a perpetual student, steadfast in their commitment to truth, and always open to hearing from others and to revisiting their beliefs. Charles Fried was a magnificent scholar. He was also an upstanding citizen, a wonderful colleague, and an extraordinary human being. He will be sorely missed.
* Interim Dean and Carter Professor of General Jurisprudence, Harvard Law School.
Richard J. Lazarus*
“Mr. Embree, you’re on.” That was my introduction to Professor Charles Fried, my Contracts professor at Harvard Law School. It was September 1976, the very first class of my first day of law school. Fried did not begin class with a warm welcome or introductory remarks on the topic of Contracts. He simply walked into the classroom, looked down at his seating chart, and cold-called my classmate Mel Embree.
Fried was an intimidating classroom presence. He had an aristocratic bearing and a booming, authoritative voice. His obvious scholarly erudition and enormous intellect were matched by his exceptional record of academic and professional achievement. Fried began teaching at Harvard Law School in 1961 at age twenty-six, where he quickly received tenure.
I never then could have imagined that a decade later, I would be working at the U.S. Department of Justice as an Assistant to then–Solicitor General Charles Fried. Or, more unlikely still, that thirty-five years after that first meeting in Contracts I would join the Harvard Law School as his faculty colleague — my office only two doors from his own — where he became a good friend. The sheer unlikeliness of that pathway, moreover, underscores what a truly extraordinary person Charles was.
Although Charles did not initially hire me to serve as an Assistant to the Solicitor General, I would never have had the job but for Charles. Before Charles became Solicitor General, I was offered (and accepted) the Assistant position by his predecessor in office, Solicitor General Rex Lee. However, a few weeks before I was scheduled to begin, I received a call from Solicitor General Lee, embarrassed, notifying me that the new Attorney General Ed Meese had declined to sign my formal appointment letter. The Attorney General’s signing of a Justice Department attorney’s appointment letter is nominally required for all new hires and is generally performed by a signature machine. The Attorney General otherwise plays no role in the hiring process of attorneys except for those who report directly to them.
Meese, however, was reportedly wary that Lee, who by then had announced he would be leaving soon, was not hiring sufficiently conservative lawyers to the Solicitor General’s Office, and so Meese personally blocked my hiring. Meese was certainly correct that I was not a conservative lawyer. But the position for which I had been hired was a career position, for which an attorney’s personal politics are supposed to be strictly irrelevant.
Four months later, I received a phone call from Charles Fried. He reported to me that he had taken the oath of office for Solicitor General only a few minutes earlier — having been confirmed by the Senate the day before — and was immediately calling me to offer me the position of Assistant to the Solicitor General. He had never interviewed me for the position or spoken to me about the job. I doubt he had any recollection that I had been one of his 140 students in Contracts a decade earlier. Yet Fried told me on the phone that in his conversations with the Attorney General he had made it a condition of agreeing to become Solicitor General that he be allowed to follow through on the wishes of Rex Lee and the career Deputy Solicitors General that I be offered the job.
That was when my impression of Charles Fried was wholly transformed. At Harvard Law School, he had been the somewhat terrifying, seemingly distant, and highly intellectual legal academic whose conservative views bore no relation to my own or most of my classmates at that time. As Solicitor General, Fried proved to be a stunningly smart, rigorous, and careful practicing lawyer. He further proved himself to be an individual of enormous professional integrity, who, as reflected by his immediate hiring of me over the objections of high-ranking political appointees elsewhere in the Department, cared deeply about the longstanding traditions of the Office of the Solicitor General. By the time he left the office in 1989 to rejoin the Harvard Law faculty, he had become an outstanding Solicitor General. He increasingly demonstrated his willingness to act independently of those political appointees elsewhere at the Justice Department, who were more interested in making political points for press releases than in filing briefs and making legal arguments before the Court that best represented the interests of the United States.
It was not, however, until I joined the Harvard Law faculty more than two decades later in 2011 that “Professor Fried” of 1976 and “Solicitor General Fried” of 1986 became my friend “Charles.” Charles was no less stunningly brilliant and erudite than he had been in 1976. He was without peer. During faculty workshops and informal lunchtime discussions, Charles would routinely delight his colleagues with references to classic Greek and Roman philosophers. The extraordinary breadth of his knowledge was surpassed only by his kindness and generosity to others, especially new, younger faculty. He plainly adored the give and take of the academic life, and those around him were greatly enriched by his company.
Nor were Charles’s contributions remotely limited to the academy. He served as Solicitor General for four years and subsequently built upon that public service to become an important, highly respected voice on matters of public concern for decades. He frequently testified before Congress, wrote opinion essays for the national print media, appeared for interviews on national broadcast media, and of course continued to write important and compelling Supreme Court briefs. Charles cared deeply about the state of the world and his beloved United States to which he and his family fled in 1939 from Czechoslovakia in response to the threat then posed by Nazi Germany. Charles often discussed with me his tremendous dread that similar strands of authoritarianism were rising in the United States.
Charles also became a truly beloved teacher. He was dedicated to his students. Even when his mobility became more limited, Charles could be seen using a walker across the courtyards to reach his classroom. He was determined, indeed courageously so, to teach his classes. And the students embraced him — his office was regularly overflowing with students, occupying all of the seats and sitting on the floor, enjoying his repartee and good company.
The last words I heard Charles speak in the classroom were on November 28, 2023, during his final day teaching. Charles was surprised when, a few minutes after he began the day’s instruction, several dozen of his faculty colleagues, most of whom had once been his students, filed into the room to offer their respects in honor of his more than sixty years of teaching. They included Supreme Court Justice Stephen Breyer, who had been a student in Charles’s first class in 1961. Charles heard us out, and, while clearly moved by our presence, turned to those assembled, looked at us squarely in the eye, and announced that it was time for us to leave. After all, he said, with a booming, authoritative voice that masked some tears in his eyes, “I have a class to teach.”
* Charles Stebbins Fairchild Professor of Law, Harvard Law School.
TRIBUTE TO CHARLES FRIED:
FULFILLING THE MOST DEMANDING
MORAL PRINCIPLES
Martha Minow*
A crowd of faculty colleagues, former students, and family members crowded into Charles Fried’s classroom as a surprise tribute on the last day of his last class. Charles offered thanks and then asked the visitors to leave because, he said, he had a class to teach.17 The moment embodied his profound and gracious sense of duty as well as the enduring admiration and affection he generated across many generations. When he passed away shortly thereafter, people who disagree about legal issues and methods, political goals, and much else joined in mourning him. The Harvard Law School and the world is less lively without him. I miss him.
Our friendship started when I interviewed for a job on the Harvard Law faculty. We clicked: I was drawn to his wide-ranging interests and his generous spirit. That is how I came to sit, just after I joined the faculty, with Charles and his remarkable wife Anne in their kitchen as I searched newspaper ads for a place to live. He was the one out to help this new colleague settle in. We talked often about philosophy, law, and concrete problems, both pressing and enduring. We often disagreed about issues but not about what issues matter. I later watched him depart for government service, and then return to the faculty. I gave him public support amid controversy over his nomination to join the Massachusetts Supreme Judicial Court. Happily for the Harvard Law School community, Justice Fried continued to teach at the school and drop by to talk. The community celebrated when he returned full-time to the faculty. Over more than four decades, we exchanged draft articles, appeared on panels together, and traded suggestions of books to read and films to see.
Others can describe more thoroughly his pioneering scholarship, joining law and philosophy and also theory and practice. He illuminated fundamental issues, illustrated by the titles of his now-classic books, including: Contract as Promise, Saying What the Law Is, Order and Law, Right and Wrong, Modern Liberty, and, co-authored with his philosopher son Gregory Fried, Because It Is Wrong.18 His work reflected both his intensive readings of philosophic, literary, and legal works and his ceaseless inquiries into the demands of truth and morality — and his thorough engagement with actual disputes. When he poked his head in my office, he might share his mulling about the procedural posture of a pending case, or a current exhibit at an art museum.
Always bringing good humor even to hard topics, he generously shared reflections from his extraordinary experiences. He departed his native Czechoslovakia in 1939; he later said he and his family left “with Hitler as [his] travel agent.”19 The family’s plans to return to their home were quashed when Stalin moved in.20 That contributed to Charles’s “allergy” to left-wing ideologies.21 He became a United States citizen, a star student and voracious reader; he pursued and excelled in studies at Princeton University, Oxford University, and Columbia Law School.22 His lawyering as Solicitor General included arguing twenty-five cases before the United States Supreme Court.23 After government service, he served a range of clients. In the roles of professor, advocate, and judge, he brought disciplined acumen, personal integrity, true curiosity, and genuine zest to explorations of liberty and democracy. Charles played a pivotal role advising the nonpartisan Campaign Legal Center, where he helped to guide protection of voting rights, challenges to partisan gerrymandering, and electoral integrity.24 He did not trim his sails to suit anyone nor to gain advantage to his career, although he was well-positioned to receive appointment as a federal judge. He was too devoted to the pursuit of truth, wherever the inquiry took him, and too honest about the result, to satisfy the political process.
As colleagues, we discussed pending cases, Supreme Court opinions, educational uses of new technologies, questions about evidence rules about scientific expertise, the proper scope of privacy, and even whether to use one’s title in an email signature. We also discussed the constraints that leadership roles can impose. These included constraints he experienced as government lawyer and judge, and constraints I experienced as a dean.
Perhaps because he understood such constraints so fully — and because of who he was, there was no one more helpful or supportive when I served as Harvard Law School’s dean. He offered advice with no expectation of deference and frequent words of encouragement, often stopping by at the end of a workday. He astutely noted that administrators tried to shield faculty and students from worries as the nation, the university, and I wrestled with the fallout from the subprime financial disaster.25 He repeatedly urged me to tell him if and when it seemed time for him to step down from his teaching duties. No such time came on my watch.
Indeed, on top of his vigorous teaching, scholarship, and public engagement, Charles was the first to raise his hand when I asked the faculty for volunteers to develop digital course offerings as Harvard University began an initiative in the area.26 Reaching some 45,000 students across the globe, his free eight-week Contracts course includes an animated (literally) Professor Fried, short videos sharing his engaging introduction to the human needs served by contracts, to key concepts such as offer and acceptance, and to famous judicial cases.27 Charles worked closely with designers and teaching fellows to make the course engaging and appreciated.28 Indeed, I was told that in the first several years of Harvard’s experiment with online courses, Fried’s Contracts enrolled the most students. The course is part of an online education program in Indonesia and another in Africa.29 One episode available on YouTube reached 152,000 views.30
Charles brought his love of rigorous learning to law students, to online students, and also to students at the Commonwealth School, an intellectually rigorous independent high school. There, even in the midst of the COVID-19 pandemic, he served as trustee and guest speaker.31 His own lifelong learning motivated his final ambitious research project: a book manuscript examining how great leaders, including James Madison and Mikhail Gorbachev, altered their understanding of and positions on key issues.32 We shared a fascination with this issue and exchanged biographies and other sources. As I hoped, he turned the inquiry to himself. Even before the book was done, he offered his reflections within the law school and broader community about how and why he changed.33
For Charles, change involved ongoing reflection about enduring commitments in light of new experiences. His devotion to liberty and democracy led him to part company with his political party over some of its positions and its candidates. His roles in government service and his personal relationships led him to change; in his own words, he reflected, “I think what had changed was that I was older, and I had lived, and I had children” and listening to the opinions of his children and grandchildren “changed me.”34
I think the pivotal moment for Charles was joining his son Gregory, a philosopher, in writing about torture in the wake of 9/11, the Iraq war, and the leadership of President George W. Bush. The result is the book, Because It Is Wrong: Torture, Privacy, and Executive Power in the Age of Terror.35 With precision and eloquence, it examines “behaviors that are illegal because they are wrong” compared with “those that are wrong because they are illegal.”36 A reader can hear in the book insights harvested in discussions Charles and his son had had with one another. With sources ranging from current events to classic paintings, it distinguishes values that deserve absolute protection from those that can be compromised.37
Persuasion that respects the will of each individual lies at the heart of Because It Is Wrong. In discussing the book, Charles explained, “Torture is that which does not seek to persuade the will, even in terms of what the mafia would refer to as ‘an offer you can’t refuse.’ It is the employment of techniques meant to destroy the will, to drive the person mad.”38 Here, as with his work on promises, Charles integrated head and heart, analysis and empathy.
One of Charles’s most famous articles analogizes the role of a lawyer to the role of a friend.39 Some criticize lawyers for elevating loyalty to their client over concern for their adversaries and for failing to assist others arguably more deserving.40 Charles explained like a friend, a lawyer forms a relationship calling for special duties of care; and just as all benefit from the special care of a friend, all could benefit from the special attention of their lawyer.41 The argument remains provocative, but of this I have no doubt: The world is better because of the work of Charles Fried as a lawyer and as a teacher. And for those of us lucky enough to call him a friend, his example will remain an enduring call to be more thoughtful and more caring.
* 300th Anniversary University Professor, Harvard University; former Dean, Harvard Law
School.
THE GOLDEN APPLE IN THE SILVER FRAME:
A TRIBUTE TO CHARLES FRIED
Stephen E. Sachs*
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, Harvard Law School Class of 1970, was Professor Fried’s student and remembers him and his class fondly. Another of Professor 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’d 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.
I’m honored and grateful to have succeeded Professor Fried as the second faculty advisor to Harvard’s student chapter of the Federalist Society. It’s unusual (to say the least) in a chapter now four decades old that I’d be only the second such advisor. And if, when my turn comes, my successor as the third faculty advisor to our chapter can have as much respect for me as all whom I’ve met here have for Professor Fried, I’d be a lucky man indeed.
And Professor 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” isn’t 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, 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. 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 are very familiar to the members whom Professor Fried so long advised.42 Yet I worry, thinking of his 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 a law student’s 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 one’s training to be a lawyer.
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 in law school, is the one that’s listed first — that the state exists to preserve freedom. And it’s this principle that our Constitution and its separation of powers, as well as the courts, judges, and lawyers who work under them, are intended to serve.
In 1861, in the early days of a Civil War 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.43 Thinking of the remarkable prosperity and energy of the Republic he now led, Lincoln 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.44
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 doctrine45 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 (such as those from whom Professor Fried’s family fled), and yet principled enough to resist the shortcuts, 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 No. 51 tells us; nor do we have a ready supply of angels who are to govern men.46 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.”47 Sometimes it may seem that 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 — or, perhaps, a choice among leaders who would all do a little of each, just under different circumstances.
Our work in the law, for which Professor Fried is justly known, is thus only one small corner of the work that has to be done and to which he was also devoted: the work necessary to create a society whose strength can adequately protect its freedoms, and whose freedoms, as Lincoln described, can properly inspire and justify that strength. This work is set out not only for lawyers and judges, but for legislators, officials, soldiers, scholars, and ordinary citizens. And of this it might be justly said, that it is not for us to complete this work, but neither are we free to refuse it.48
Only a few months before he died, Professor Fried gave his last Harvard faculty workshop on a book project entitled Metanoia. This is a term with which I’m willing to admit I was unfamiliar beforehand (and maybe some of my colleagues were as well), but which the Oxford English Dictionary defines as “[t]he act or process of changing one’s mind.”49 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.”50 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 “[r]enew our lives as in days of old.”51
I’m sure I disagreed with Professor Fried on a variety of things, both before and after his various changes of mind. But I’m 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 all should 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 ten and twelve, I can authoritatively agree — that the days are long but the years are short. Law school may seem to students like a very long three years, but it also goes by very quickly, more quickly than they 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 is that we may all use them as well as he did, and that we may likewise leave something better for those who come after us.
* Antonin Scalia Professor of Law, Harvard Law School. The author is grateful to William
Baude, Samuel Bray, Richard Re, Alan Sachs, and Amanda Schwoerke for advice and comments.
This Tribute is adapted from remarks at the Harvard Law School Federalist Society Alumni Dinner on April 6, 2024.