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A SOCIAL
THINKER
An X-ray of Louis D. Brandeis’ Mind
By MAX LERNER
Through the courtesy of the Yale University Press, <we present an
illuminating essay by the assistant managing editor of The Encyclopedia
of Social Science on The Social Thought of Justice Brandeis. This article
will be part of a book, soon to appear, under the title “Mr. Justice
Brandeis.”—The Editor.
T HE earliest influence in fashioning the mind
of Mr. Justice Brandeis—and perhaps there
fore the deepest and least eradieable—was
a strain of romantic liberalism whose essence was
a gallant and optimistic struggle for certain sup-
posedly primal human rights. It was a liberalism
compulsive enough in its emotional force to lead
his parents to emigrate to America from Bohemia
after the unsuccessful revolutions of 1848. These
revolutions, aptly characterized by Trevelyan as
“the turning point at which modern history failed
to turn,” were in spirit constitutional, humanita
rian, idealistic. They represented a renewal on
continental soil of the equalitarian ideals of the
American and French revolutions. Carried back
to the l nited States by the emigrant groups of
the mid-century they imparted a new freshness and
vigor to the American tradition of civil and po
litical liberties. Freedom and justice and democ
racy which as home-grown varieties had wilted a
hit in the hot climate of American experience, be
came when transplanted hither from Europe vigor
ous and even beautiful growths. They were terms
that still had a genuine and simple content for
these naive newcomers. Mr. Justice Brandeis grew
up thus in at atmosphere of what might be called
primitive Americanism.
1 his Americanism took the characteristic form,
in the semi-frontier Kentucky society in which
the Brandeises lived, of a deeply felt individualism.
1 he complexion of such an individualism was as
varied as were the sources of the sense of release
from which it sprung. To be allowed finally to do
what one in Europe had always dreamed of doing
and what one had regarded as the marks of a free
man, to talk or criticize or worship as one pleased,
to see an immediacy of relation between economic
( ‘nort and economic reward, reinforced one’s sense
of the dignity and sovereign importance of the in
dividual. There were also the slaves as intense
and vivid symbols to sum up for a border-state
nolitionist group what it meant to lack the liber-
Mes of an individual. Mr. Justice Brandeis recalls
violent his reaction was when, during a brief
nourn in Germany as a young man, he was repri-
aruled by the authorities for whistling at night.
* ie reprimand was more than a personal reproof;
was an insult to a complete and cherished way
i life.
( )ne does not become easily disengaged from a
> of life thus deeply learned. The whole early
reer of Mr. Justice Brandeis, with its hard work
i study and success, runs in the best tradition of
nerican individualism. In fact, all the events of
' hrst forty years had conspired to make him an
istic yet successful liberal and civic leader,
)Se conspicuous ability condoned his excess of
, and whose mastery of the hard facts of business
showed that his somewhat
tiresome sermonizing was not
to be taken over-seriously. It
is true, he showed at times a
disquieting curiosity about
matters into which a Boston
gentleman rarely pried; as
when in the eighties he //,
began to talk with labor
leaders, and to regard the labor struggle from the
worker’s point of view. And he showed also a
somewhat unusual tendency to interpret the law
yer’s function as more than mere advocacy and to
set himself up now as judge and now as arbitrator.
But all his offenses stayed within the limits of
tolerance.
The genuinely formative years of Mr. Justice
Brandeis’ mind fell in the “social justice” period
of American history, in the latter part of the nine
ties and the first decade of the twentieth century.
They were years which witnessed on the one hand
the rise of powerful vested interests and the ex
propriation of American resources by capital act
ing under a laissez faire philosophy of government,
and on the other hand such movements as pop
ulism, muckraking, trust-busting and the “new
freedom.” The vigor of individual enterprise
which had opened a continent had grown barbaric
and piratical in the exploiting of it; and the pure
metaphysical passion which had driven successive
waves of migration to America was now trans
ferred and transformed into an intense desire for
purifying the body politic. To minds educated in
the dialectic of liberalism it seemed obvious that
the situation could be best explained in terms of a
dualism of conflicting forces. It seemed clear that
the captains of industry and the masters of capital,
in the exultation of success, would sweep away
every landmark on the terrain of American lib
erty. And it seemed clear also that the only re
course for liberals lay in a militant attack on all
f ronts — a n attack on bankers, on corporations and
on politicians corruptly allied with them, a pitiless
campaign of investigation and publicity’.
It was amidst this planetary crash and turmoil
that Mr. Justice Brandeis’ world took definite
shape. It was in a sense inevitable that he should
have been caught up in the swirl of these forces.
For it is of the essence of his mind to be receptive
to the aspirations and conflicts of the world he
lives in, and to desire participation in them. Pos
sessing little of Mr. Justice Holmes’ transcend
ence of any specific period, it is rather his genius
to be immersed in his time. After the crucial strug
gle to establish a legal practice was won, his mind,
whose Hebraic sense of righteousness had been
reinforced by his background of Continental liber
alism, turned more and more to issues of social
JUSTICE LOUIS I). BRANDEIS
came to be called "the People’s Counsel” . . .
justice. He found in the dominant temper of his
populist muckraking period that essential contin
uity with his own past without which no individ
ual enters upon a revolution in his thinking. He
found room in his new philosophy for the ideals
he had learned as a boy; room also for the indi
vidualism that had dominated his youth. What this
period added, in his case as in the case of other
liberals, was a new perception of the changes that
the coming of industrial society had wrought in
the conditions of American liberty and American
individualism. It was clear that the old ideals
could no longer he pursued in the old way. That
the ideals themselves were worth while and needed
no replacement formed part of those first prin
ciples which the liberals of that day did not ques
tion.
In Louis I). Brandeis, the able Boston lawyer,
the forces of liberalism gained no mean ally. 1
say ally, because a common unquestioning soldier
he could never be; stern individualist, who cared
more about the integrity of his personality than
about anything else, he had to fight in his own
fashion. He threw into the struggle all the re
sources of his mind—his amazing legal acumen,
his persuasiveness, his mastery of the details and
refinements of corporation finance, his unwaver
ing sense of values, his eminently precise and con
structive imagination. Equipped with every weapon
of information one had reckoned one’s own, he
was a terrifying opponent to encounter. But if
he spared no one else, he was mo>t ruthless with
himself. He worked indefatigably. He sacrificed
his obvious interests. He dedicated himself with a
monastic fervor to what he conceived to be the
service of the public. He came to be called “the
People’s Counsel,” and if there was a touch of as
perity in the way the name was applied to him by
opponents, he himself took it with a high serious
ness.
His ideal of citizenship was Peridean, but he
pursued it with a religious intensity that was
mediaeval.
He was effective. Of that there can be no doubt.
The minutes of legislative hearings and investi
gations, the records of lawsuits in which groups of
citizens, organized as a 'league” of some sort or
other, applied for court action against an encroach
ing corporation, the (Please turn to page 17)
HE SOUTHERN ISRAELITE it
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