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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 [7]