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Sunday, September 04, 2016

Louis D. Brandeis: American Prophet

This is a new intellectual biography (as one review calls it) of Louis Brandeis, a volume of moderate length (my type of book these days) biographies of Jewish figures throughout history (one upcoming: Jesus). Jeffrey Rosen -- whose book on privacy I read some years ago -- provides his evenhanded approach that makes his a good choice to be head of the National Constitution Center.  The subtitle aside, Rosen also saw him as a latter day Jeffersonian.

Overall, though it seemed to me to spent a bit too much time on his economic views (rather let's say ten pages been taken from that and added to the Supreme Court section), it was a good ... if somewhat straightforward (bit dry at times) read. The book does cover a lot of ground: his childhood/early career, economic views (and more broadly society -- he was wary of the New Deal at times too because he was against bigness in general), civic responsibility, time on the Court (focusing on speech/privacy along with his fact based), Zionism and a view from today (not too surprising each Jewish justice today voices support).

Rosen sees Brandeis as a very good model for today (e.g., something for both the left and libertarian right),* including his economic concerns that provides lessons for today.  He tried to find a middle path in his lawyer days, finding a way in the middle that would satisfy both sides. Brandeis was for a "living constitution" but (shades of recent writings of Jack Balkin?) he did so in a sort of originalist way in honoring the Framers' vision as he saw it (see, e.g., his concurrence in Whitney v. CA and dissent in Olmstead v. U.S. that appealed to historical values while applying them to current realities**).  And, Brandeis had a strong concern for the duties of citizens, free speech promoting that as well.

Brandeis' Zionism fits into his overall vision. He was earlier more assimilationist, concerned about "hyphenated" Americans. But, later saw Jews as supportive of basic progressive/American values (reason, concern for others, individual morality etc.) and needing their own homeland (he also supported this for others after WWI).  From my reading, it seems like Brandeis seeing the individual cannot solely be atomistic, a solitary individual, nor just part of the overall crowd as an American.  They would also have to be a member of a smaller group, a diversity of them a benefit of this country.  This would also fit into his overall free speech views.

One thing that impresses Rosen is Brandeis' use of language, including as a "prophet" for his causes -- thus his famous opinions on free speech, privacy, dangers of corporations, importance of experimenting (states as laboratories) etc. continues to impress. [Rosen argues that Brandeis changed his approach on privacy from his famous law article, which balanced free speech more than his later approach.]  Thus, Holmes is sometimes honored here, but in the long run, Brandeis is the true hero since we are provided with an inspirational reason based on American values, not some libertarian "marketplace of ideas" argument.  The value of this is seen if you compare the more thinly argued "right to privacy" cases (and then cases mostly reliant on precedent) with those (see, e.g., the dissents in Poe v. Ullman) that provide some more depth on how it fits into an overall ethos. Basically, the material it there, but we need more effort to form a complete account.

[this paragraph added]

The book recognizes his limitations, including on racial issues. He did support gender equality (including in his model laws for Palestine) though took time to sign on to the issue of women suffrage and supported protectionist legislation (given his druthers, he probably would have made it more evenhanded, but the doctrine at the time made this impossible).  His views on Zionism, e.g., was a bit too idealistic and not fully realistic of the facts on the ground (including Arab opposition). And, various other caveats are tossed out, such as why he concurred in Whitney.

Overall, it was interesting and intriguing summary that can be a model for studying the past lives and beliefs of historical figures. 


* Rosen also repeatedly compares things he said with modern day realities such as how such and such is like Google or brain imaging. And, this doesn't come off as forced as a whole.  His overall joy and enthusiasm comes out, which is also true when you hear him in interviews etc.

** The dissents in the wiretapping case as a whole take a sort of "spirit of the Constitution" approach that is appropriate. An earlier dissent, showing the application might not always appeal, also cites the principle: 
Such changes may result from change in the conditions in which, or in the purpose for which, a punishment is prescribed. The Constitution contains no reference to hard labor. The prohibition contained in the Fifth Amendment refers to infamous crimes -- a term obviously inviting interpretation in harmony with conditions and opinion prevailing from time to time. And today, commitment to Occoquan for a short term for nonsupport of minor children is certainly not an infamous punishment.
The language and basic reasons for it does not change under this view (though in practice we do in various instances alternate basic reasons -- see, e.g., McDonald v. Chicago discussing the changing concerns regarding the Second Amendment). What can change are "conditions and opinions prevailing."

So, there is "no reference" to let's say gays in the Constitution but the references to "equal protection" can apply differently as "conditions and opinions" develop.  As specifically the case in the Fourth Amendment context, this can be quite tied to facts, a major concern of Brandeis himself.

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