Brandeis: Beyond Progressivism

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Revered as the "People's Attorney," Louis D. Brandeis concluded a distinguished career by serving as an associate justice (1916-1939) of the U.S. Supreme Court. Philippa Strum argues that Brandeis—long recognized as a brilliant legal thinker and defender of traditional civil liberties—was also an important political theorist whose thought has become particularly relevant to the present moment in American politics.

Brandeis, Strum shows, was appalled by the suffering and waste of human potential brought on by industrialization, poverty, and a government increasingly out of touch with its citizens. In response, he developed a unique vision of a "worker's democracy" based on an economically independent and well-educated citizenry actively engaged in defining its own political destiny. She also demonstrates that, while Brandeis's thinking formed the basis of Woodrow Wilson's "New Freedom," it went well beyond Wilsonian Progressivism in its call for smaller governmental and economic units such as worker-owned businesses and consumer cooperatives.

Brandeis's political thought, Strum suggests, is especially relevant to current debates over how large a role government should play in resolving everything from unemployment and homelessness to the crisis in health care. One of the few justices to support Roosevelt's New Deal policies in the 1930s, he nevertheless consistently criticized concentrated power in government (and in corporations). He agreed that the government should provide its citizens with some sort of "safety net," but at the same time should empower people to find private solutions to their needs.

A half century later, Brandeis's political thought has much to offer anyone engaged in the current debates pitting individualists against communitarians and rights advocates against social welfare critics.

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
Strum supplements her much-praised biography, Louis D. Brandeis: Justice for the People , with a brief, insightful analysis of the great lawyer and judge's political thought. The 85-year-old Brandeis died in 1941. Though New Dealers saw his opposition to large institutions as nostalgic and naive, Strum suggests that Brandeis's pragmatic approach to social problems remains relevant. She sketches his evolution from economic conservatism to egalitarianism, showing how his experiences--investigating crooked insurance companies in Massachusetts, analyzing the conditions that led to violence in the Homestead steel strike in 1892, learning about the communal Jewish kibbutzim in Palestine, introducing the sociological ``Brandeis brief'' to Supreme Court advocacy--shaped his thought. Before he joined the Supreme Court, on which he served between 1916 and 1939, Brandies argued in a speech that the Constitution's right to life implied a minimal level of freedom from want; as a justice, the forward-looking Brandeis emphasized the importance of individual rights of speech and privacy. Strum concludes that, since Brandeis's thought was derived from ``the American experiences of industrialization,'' his ideas mainly addressed economics and that he was less concerned with issues of sexism and racism. Sept.
Mark Tushnet
Concise and insightful. Strum shows how Brandeis's ideas about industrial organization, Zionism, and the rights and duties of citizenship derived from his experiences as a lawyer, and why we should locate Brandeis in the tradition of American pragmatism.
—Mark Tushnet, author of Red, White, and Blue: A Critical Analysis of Constitutional Law
David Schultz
Strum has produced a short engaging book on Louis Brandeis that contrasts both with her earlier biography of the Justice, as well as most political science books and judicial biographies that focus on judicial opinions and constitutional doctrine. This book is broader. Strum's aim is to show how political values were important to Brandeis' thought as well as to discuss the context and development of those political ideas over his career. According to the author, politics and political values were important to Brandeis, and one can locate these values in his speeches, articles, correspondence, and Supreme Court opinions.(pp. 1-2) Among the most important values for Brandeis was his support of individualism and individual freedom. Strum argues that the type of individualism that was important to Brandeis was not simply the market freedom of laissez-faire capitalism. Instead, Brandeis defined freedom to include participation in the political and economic process. Participation in both were necessary for self-development and autonomy. Moreover, Strum contends that Brandeis focused not simply upon rights but also responsibilities, arguing that individuals did have political and social obligations to others that were important to one's freedom. According to Strum, Brandeis' political thought centered on such basic concepts as the individual, liberty, rights, responsibilities, power, justice, human possibilities, and human limitations. Most of these words have been used by a multiplicity of political theorists and politicians. Brandeis, however, combined them into a unique formulation of the ideal state that maximized individual involvement in both the political process and economic decisionmaking and that secured political and economic autonomy in the industrial age. He did not view the state as an entity that would do for others what they could not do for themselves; rather, it was to be both the expression of the cumulative will of individuals and the mechanism by which they would control their lives (p. 3). Brandeis's individualism stressed democracy, opposed bigness in government and the economy, and it made the individual the primary unit of political efficacy. As Strum nicely phrases it: "Brandeis loathed tycoons, he deplored public apathy, he condemned invasions of privacy, he feared big government, and he seems not to have Page 137 follows: thought much of television." (pp. 98-9). In defining the basic elements of Brandeis's political views, Strum offers interesting contrasts between Brandeis and Dewey, and Brandeis and the Progressive tradition, in order to demonstrate the uniqueness of his thought. On the one hand, the commitment to human dignity, the emphasis upon political participation, social experimentation, and the articulation of other themes place Brandeis close to Dewey in many respects. Yet Brandeis, according to Strum, went "beyond Progessivism" and Progressive Era assumptions in that his conception of human freedom linked economic and civil liberties together as equally necessary to human self-development.(p. 8) Such assumptions took him beyond Progressivism in that it led Brandeis to support a new social contract that stressed industrial democracy and a broader sense of freedom than articulated by many of the Progressive critics of his era.(p. 165) Such an emphasis on democratic values in both the economy and the polity would influence Brandeis' Supreme Court decisions, especially those addressing the property and individual rights dichotomy that had been defined during the latter nineteenth and early twentieth centuries and which would undergo redefinition during the New Deal. A second important commitment of Brandeis was his belief in civic duty and an almost Puritan sense of a calling or public courage. This commitment to a public calling, for Strum, explains Brandeis' movement into politics, his support for many causes throughout his career, and his particular vision of social cooperation and politics. The book is divided into six chapters, plus an introduction and a conclusion. Strum takes us through his youth, his experience with eastern European Jewish culture and ideas, his education at Harvard, and his early career. None of these experiences indicated that Brandeis would be a critic of laissez- faire capitalism. His views began to change around 1903-4 when one of his clients had difficulties with his employees. His experiences, here, for Strum, prompted Brandeis to become interested in the plight of workers and industrial organization. Shortly after this experience, Brandeis commenced speaking of industrial democracy and of the important role that workers could play in the economic sphere as checks upon industrial power and owners. By 1907, Brandeis began discussing the interests that workers and employers shared as well as the role of profit sharing, industrial democracy, and worker participation in the improvement of industrial efficiency and organization. Hence, Brandeis's views now began to stress the parallels between economic and political organization and the need to use democratic procedures to check abuses of power in both. In short, Strum argues that Brandeis sought to bring Jeffersonian goals to industrial organization (p. 30). This turn to industrial democracy, worker's rights, and human dignity helps place cases such as MULLER V. OREGON into context. In supporting state regulations to protect women, Brandeis was not necessarily arguing in favor of paternalistic proposals aimed at discriminating again women. This regulation grew out of Brandeis' political Page 138 follows: values, including his vision for the workplace and human dignity. Brandeis's fear of bigness, his commitment to individualism, and his other political values went with him to the Supreme Court. In chapter six, Strum addresses Brandeis' tenure on the Court. Strum does a good job of showing how Brandies and Holmes differed on numerous issues, such as in the area of free speech. Strum argues that while Holmes could envision situations where limits on speech were acceptable, Brandeis was more committed to the free flow of ideas, viewing them as necessary to build democracy and sustain the experimentation necessary for social change. WHITNEY V. CALIFORNIA is viewed by the author as an especially important free speech case for Brandeis because here we see him articulating many of the important political themes that would dominate his jurisprudence. In WHITNEY, we find a discussion of human nature, the role of ideas and education, the role of government in society, and a political philosophy that links all of these points together in ways that seem very similar to the linkages that Dewey made.(127-8) Similarly, in discussing economic due process, Strum notes Brandeis' disagreement with cases that defined distinct levels of constitutional protection for property and civil rights. BRANDEIS: BEYOND PROGRESSIVISM, addresses many points often ignored in studies of Justices, but there are several problems with the book. For one, while Strum argues that politics and political values were important to Brandeis, she does not offer a strong linkage between these values and the Justice's judicial opinions. For example, in chapter six where one would expect discussion on the political thought of Brandeis' Court opinions, Strum does not provide much detail on Brandeis' decisions beyond a few free speech cases. It would have been interesting to examine Brandeis' economic cases or his decisions during the New Deal. Strum hints at the reasons that made him disagree with the direction FDR and the New Deal went, but she does not develop her claims enough. A richer discussion of how Brandeis' commitment to linking economic and political freedoms together were reflected in his supposedly unique way to view the property and personal rights dichotomy would have told us much about Brandeis that previous biographies had not. A second problem with the book lies in the description of what the Progressive Era was and, based upon that characterization, how Brandeis went beyond or departed from Progressive assumptions. Strum's characterization seems to suggest that Progressivism was monolithic and anti-property rights. This is hardly a fair description of Progressivism. Instead, the influence of Dewey, the contrasting attitudes towards trusts, and the Progressive demands for social welfare legislation and other types of regulation would reveal that many other Progressives, including Dewey among others, shared many of the assumptions that Brandeis did. Hence, Brandeis may go beyond contemporary characterizations of Progressivism, but he may have been in the center of at least one more liberal strain of the Progressive Era. A final criticism relates to Strum's Page 139 follows: central claim that political values were important to Brandeis. In several places references to the Justice's views on sociological jurisprudence and other legal theories are made. It would have been interesting for Strum to inquire into the influence of legal realism upon Brandeis, since his name and MULLER V. OREGON are often linked to that movement. To ask either how conscious Brandeis was that his politics influenced his Court opinions, or how appropriate he thought such an influence was are certainly good and obvious questions. Examining these questions would tell us even more about how much and under what conditions Brandeis' political values were truly important to him on and off the bench. REFERENCES MULLER V. OREGON 208 U.S. 412 (1908) WHITNEY V. CALIFORNIA 274 U.S. 357 (1927)
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Product Details

  • ISBN-13: 9780700606870
  • Publisher: University Press of Kansas
  • Publication date: 1/28/1995
  • Series: American Political Thought Series
  • Edition description: Reprint
  • Pages: 240
  • Product dimensions: 8.90 (w) x 6.00 (h) x 0.70 (d)

Table of Contents



1. Early Ideas: Conformity and the Seeds of Evolution

2. From Laissez-Faire Capitalism to Worker-Management

3. Law, Lawyer, and Judge in a Democratic Polity

4. The Curse of Bigness

5. Zionism and the Ideal State

6. Civil and Economic Liberties

Conclusion: The Individual and the Democratic State


Selected Bibliography

List of Cases Cited


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