One of the phrases most often quoted from Justice Brandeis is, “If we would guide by the light of reason, we must let our minds be bold.” The full context in which the phrase first appears is less eloquent but more revealing.
In dissenting from a decision invalidating a state law standardizing the size of loaves of bread, the Justice said, “Sometimes, if we would guide by the light of reason, we must let our minds be bold. But in this case we have merely to acquaint ourselves with the art of breadmaking and the usages of the trade…” It was Brandeis’ characteristic as a judge to seek constantly to invigorate our constitutional law, like Antaeus in the fable, by renewing its contact with the earth of fact.
“Brandeis the other day,” Holmes once wrote to Pollock, “drove a harpoon into my midriff with reference to my summer occupations. He said, ‘you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don’t you try something new, study some domain of fact? Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is.” Holmes disliked the idea. “I always say,” the letter to Pollock continued, “the chief end of man is to form general propositions–adding that no general proposition is worth a damn.”
The skepticism of Holmes cleared the way for the empiricism of Brandeis. Holmes may have thought the formation of general propositions the chief end of man, but he had already prodded into the judicial subconscious with his famous “General propositions do not decide concrete cases.” Behind the elaborate abstractions lurked human prejudice, fallible opinion, and often gross ignorance. If judges were really deciding the great constitutional questions according to the social and economic opinions, why not make those opinions as informed as possible; why not argue the opinions rather than the abstractions in which they hid themselves?
This was Brandeis’s contribution. In his very first dissent Brandeis pointed out that a study of the actual facts of society had “uncovered as fiction many an assumption upon which American judges and lawyers have rested comfortably.” The chief end of man was to learn, and no fact was too- humble to be without value. “The first essential of wise and just action,” Brandeis said in 1914 in his testimony concerning the Federal Trade Commission bill, “is knowledge.”
A man who sets so great a store on facts does so because he believes his fellow-men reasonable and open to persuasion. The corollary of government by persuasion is the fullest freedom of discussion. This is the faith which echoes in the memorable words of his protest against the conviction of Anita Whitney for criminal syndicalism in California:
Those who won our revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by-the processes of education, the remedy to be applied is more speech, not enforced silence.
His faith was robust and consistent, and he was with the liberal majority which voided a law in 1930 by which Minnesota sought to gaga scurrilous anti-Semitic scandal sheet.
Brandeis was to the deepest core of his being a Jeffersonian. Jeffersonian, too, he was proud to admit, was his approach to economic problems. This found expression in two forms. One was his desire to see democratic processes extended into industry, with labor sharing the responsibilities of management.
The other was his opposition to bigness. This was more than nostalgic. It arose from a belief in the common limitations and the common potentialities of men, the best of them too weak to bear without stumbling the burdens of government and business units grown too huge, the lowliest of them too important to be denied a sphere for the capacities in them.
“Responsibility,” Brandeis said in his concurring opinion in the St. Joseph Stockyards case, “‘is the great developer of men.” He wanted smaller units in government and business, so that more men might have opportunity to flower.
To Brandeis these basic ideas were not merely for contemplation but were fighting faiths. Where lesser men faltered, appalled at inertia and irrationality, Brandeis proved the efficacy of his faiths in one great battle after another. In him passion for justice was supplemented by a passion for facts, and his intellectual patience was as great as his urge to know. Humility tempered his desire to reform, and the regard shown for him by Mellen of the New Haven, his old antagonist, was only one evidence of the human sympathy that saved him from the arrogance which tends to be the occupational disease of reformers.
This son of Bohemian Jews was one of the truest of Americans, as he was also kin in his life and labors to the Hebrew prophets. Louis Dembitz Brandeis leaves behind him words and memories to inspire and to hearten us in the great struggles ahead.