A Pillar of American Justice

A great American was born 150 years ago. His name was Louis Brandeis. From 1916 to 1939, he served on the US Supreme Court.

To specialists in constitutional law, Justice Brandeis is known for his careful (and lengthy) presentation of facts and his closely reasoned legal analysis. To the public he should be known for his philosophy of American democracy.

Brandeis's opinions show a rare quality of argument and nobility of expression. He emphasizes the dignity of the individual and the role of reason in good government. He insists on our participation in politics. He warns against the abuse of governmental power.

We can benefit from his guidance today.

The following are passages from Justice Brandeis's legal opinions:

Public Discussion Is a Political Duty (concurring in Whitney v. California, 1927)

"Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

The Right to Be Let Alone and the Duty of the Government to Obey the Law (dissenting in Olmstead v. United States, 1928)

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men....

"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law. To declare that in the administration of the criminal law the end justifies the means--to declare that the government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

The Purpose of Separation of Powers (dissenting in Meyers v. United States, 1926)

"The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

Governmental Power to Meet Changing Economic Conditions and Judicial Restraint (dissenting in New State Ice Company v. Liebmann, 1932)

"There must be power in the states and the nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social economic experiments without risk to the rest of the country."

This Court has the power to prevent an experiment. But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.

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