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'''Louis Dembitz Brandeis'''  (1856-1941) was a highly influential American lawyer and theorist of [[Antitrust]] during the [[Progressive Era]].  As an advisor to President [[Woodrow Wilson]], he was a driving force in the passage of the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission. Appointed to the Supreme Court in 1916, he was the leading liberal on the Court (1916-1939), a proponent of small business and an enemy of bigness, and a leader of the [[Zionism|Zionist]] movement to build up Israel.

'''Louis Dembitz Brandeis'''  (1856-1941) was a highly influential American lawyer and theorist of [[Antitrust]] during the [[Progressive Era]].  As an advisor to President [[Woodrow Wilson]], he was a driving force in the passage of the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission. Appointed to the Supreme Court in 1916, he was the leading liberal on the Court (1916-1939), a proponent of small business and an enemy of bigness, and a leader of the [[Zionism|Zionist]] movement to build up Israel.

He was a strong advocate of [[Natural Rights]] and freedom of speech. He graduating from Harvard Law School in 1877, were he co-wrote the famous article "The Right to Privacy," in 1890. <ref>http://www.notablebiographies.com/Br-Ca/Brandeis-Louis.html</ref> As a leading lawyer in [[Boston]] he supported the union movement, women's rights and an increase in the minimum wage; he fought monopolistic railroads. In 1916 he was appointed to the [[United States]] Supreme Court, and was confirmed despite strong conservative opposition. He served until 1939. Although a supporter of government intervention and some of [[Franklin Roosevelt]]'s [[New Deal]] he opposed bigness and argued that the National Recovery Administration was unconstitutional. He is most famous for opposing big business and defining the right to privacy. Brandeis is also the namesake of [[Brandeis University]].

He was a strong advocate of [[Natural Rights]] and freedom of speech. He graduating from Harvard Law School in 1877, were he co-wrote the famous article "The Right to Privacy," in 1890.<ref>http://www.notablebiographies.com/Br-Ca/Brandeis-Louis.html</ref> As a leading lawyer in [[Boston]] he supported the union movement, women's rights and an increase in the minimum wage; he fought monopolistic railroads. In 1916 he was appointed to the [[United States]] Supreme Court, and was confirmed despite strong conservative opposition. He served until 1939. Although a supporter of government intervention and some of [[Franklin Roosevelt]]'s [[New Deal]] he opposed bigness and argued that the National Recovery Administration was unconstitutional. He is most famous for opposing big business and defining the right to privacy. Brandeis is also the namesake of [[Brandeis University]].

==Early career==

==Early career==

===Zionism===

===Zionism===

Brandeis was never religious, but after mediating strikes involving Jewish garment workers he became profoundly identified with his Jewish ethnic heritage and became committed to Zionism (that is, the creation of a national home in Palestine for all Jews from around the world). Brandeis, as of 1905, believed in total [[assimilation]] of Jews into American society, a position subsequently used by his opponents within the American Zionist movement to attack him personally. Brandeis moved 180 degrees from this position, believing by 1914 there was something separate and unique to the Jewish race, which was one of the reasons he wanted them to be relocated to The Promised Land, which was Palestine. He concluded that:

Brandeis was never religious, but after mediating strikes involving Jewish garment workers he became profoundly identified with his Jewish ethnic heritage and became committed to Zionism (that is, the creation of a national home in Palestine for all Jews from around the world). Brandeis, as of 1905, believed in total [[assimilation]] of Jews into American society, a position subsequently used by his opponents within the American Zionist movement to attack him personally. Brandeis moved 180 degrees from this position, believing by 1914 there was something separate and unique to the Jewish race, which was one of the reasons he wanted them to be relocated to The Promised Land, which was Palestine. He concluded that:

:"Assimilation is national suicide". There must be a land "where the Jewish life may be naturally led, the Hebrew language spoken, and the Jewish spirit prevail," and that land was "our fathers' land" -- Palestine.<ref> Speech of November 8, 1914, before the Menorah Society of Columbia University, cited in Mason (1946) p 447</ref>

:"Assimilation is national suicide". There must be a land "where the Jewish life may be naturally led, the Hebrew language spoken, and the Jewish spirit prevail," and that land was "our fathers' land" -- Palestine.<ref>Speech of November 8, 1914, before the Menorah Society of Columbia University, cited in Mason (1946) p 447</ref>

With the outbreak of [[World War I]] in 1914, Brandeis turned his attention to [[Jewish Question|the Jewish question]]. The headquarters of the World Zionist Organization was moved to the United States, and Brandeis became chairman of the operating committee and the central figure in the group. While favoring creation of a Jewish homeland, he also recognized that Jews had found freedom and opportunity in the United States and therefore urged that Palestine be considered a homeland only for those Jews who wanted to go there. Nonetheless, American Jews, because of their safety and prosperity, should help secure and build that homeland. From 1914 to 1919, Brandeis was instrumental in raising millions of dollars for relief of war-afflicted Jews. He secured President Wilson's support for the 1917 British [[Balfour Declaration]], which promised a Jewish homeland (eventually Israel). In 1919 he broke on issues of structural organization and financial planning with [[Chaim Weizmann]], the leader of European Zionism. Weizmann defeated Brandeis for power and in 1921 Brandeis resigned from the Zionist Organization of America, along with his closest associates Rabbi [[Stephen S. Wise]], Judge Julian W. Mack and [[Felix Frankfurter]].  He remained active in [[philanthropy]] directed at Jews in Palestine. In the late 1930s he endorsed illegal immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.

With the outbreak of [[World War I]] in 1914, Brandeis turned his attention to [[Jewish Question|the Jewish question]]. The headquarters of the World Zionist Organization was moved to the United States, and Brandeis became chairman of the operating committee and the central figure in the group. While favoring creation of a Jewish homeland, he also recognized that Jews had found freedom and opportunity in the United States and therefore urged that Palestine be considered a homeland only for those Jews who wanted to go there. Nonetheless, American Jews, because of their safety and prosperity, should help secure and build that homeland. From 1914 to 1919, Brandeis was instrumental in raising millions of dollars for relief of war-afflicted Jews. He secured President Wilson's support for the 1917 British [[Balfour Declaration]], which promised a Jewish homeland (eventually Israel). In 1919 he broke on issues of structural organization and financial planning with [[Chaim Weizmann]], the leader of European Zionism. Weizmann defeated Brandeis for power and in 1921 Brandeis resigned from the Zionist Organization of America, along with his closest associates Rabbi [[Stephen S. Wise]], Judge Julian W. Mack and [[Felix Frankfurter]].  He remained active in [[philanthropy]] directed at Jews in Palestine. In the late 1930s he endorsed illegal immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.

==Supreme Court nomination, 1916==

==Supreme Court nomination, 1916==

Brandeis' friendship with Wilson had almost brought him into the cabinet in 1913 as Attorney General or Secretary of Commerce, but objections from conservative businessmen prevented that appointment.  Brandeis was never a socialist but he had a reputation of favoring small business over big business, and cooperatives over small business.  In January 1916, in a surprise move, Wilson nominated Brandeis to the Supreme Court. There was a national uproar over the appointment, with conservatives denouncing the move and a small group of anti-Semites bitterly predicting the end of the republic. One opponent explained that Brandeis "is of the material that makes good advocates, reformers and crusaders, but not good or safe judges."<ref> Senator John D. Works, quoted in Levy and Murphy (1980) 78:1253</ref> Brandeis accepted the nomination as vindication of his progressive views and Zionist beliefs, for which he had been sharply criticized. Brandeis saw the appointment as an opportunity to bring law into line with modern life.  Senate hearings dragged on for four months; Brandeis said nothing, but quietly mobilized a battery of friends who refuted the numerous but ill-founded allegations against him. Even so, his confirmation was in doubt until Wilson finally saw the issue as one that pitted the president against Congress for control of the voice of the people. The president threw himself into the contest, appealing to public opinion by telling the nation:

Brandeis' friendship with Wilson had almost brought him into the cabinet in 1913 as Attorney General or Secretary of Commerce, but objections from conservative businessmen prevented that appointment.  Brandeis was never a socialist but he had a reputation of favoring small business over big business, and cooperatives over small business.  In January 1916, in a surprise move, Wilson nominated Brandeis to the Supreme Court. There was a national uproar over the appointment, with conservatives denouncing the move and a small group of anti-Semites bitterly predicting the end of the republic. One opponent explained that Brandeis "is of the material that makes good advocates, reformers and crusaders, but not good or safe judges."<ref>Senator John D. Works, quoted in Levy and Murphy (1980) 78:1253</ref> Brandeis accepted the nomination as vindication of his progressive views and Zionist beliefs, for which he had been sharply criticized. Brandeis saw the appointment as an opportunity to bring law into line with modern life.  Senate hearings dragged on for four months; Brandeis said nothing, but quietly mobilized a battery of friends who refuted the numerous but ill-founded allegations against him. Even so, his confirmation was in doubt until Wilson finally saw the issue as one that pitted the president against Congress for control of the voice of the people. The president threw himself into the contest, appealing to public opinion by telling the nation:

:I have known him. I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and public benefit, were involved. In every matter in which I have made test of his judgment and point of view I have received from him counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation. He is a friend of all just men and a lover of the right; and he knows more than how to talk about the right—he knows how to set it forward in the face of his enemies.<ref>Mason, (1946) p. 499</ref>

:I have known him. I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and public benefit, were involved. In every matter in which I have made test of his judgment and point of view I have received from him counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation. He is a friend of all just men and a lover of the right; and he knows more than how to talk about the right—he knows how to set it forward in the face of his enemies.<ref>Mason, (1946) p. 499</ref>

Brandeis often teamed with [[Oliver Wendell Holmes]] to argue that in a democracy the right to criticize the government or to expound unpopular views could not be abridged. In Whitney v. California, he opposed state laws directed against socialist philosophies and reminded his colleagues that the founding fathers had not been afraid of new ideas. Like Holmes, Brandeis personally did not share the ideas of the radicals whose cases came before the Court, but to him democracy meant that all ideas, no matter how repugnant, could enjoy freedom of expression.

Brandeis often teamed with [[Oliver Wendell Holmes]] to argue that in a democracy the right to criticize the government or to expound unpopular views could not be abridged. In Whitney v. California, he opposed state laws directed against socialist philosophies and reminded his colleagues that the founding fathers had not been afraid of new ideas. Like Holmes, Brandeis personally did not share the ideas of the radicals whose cases came before the Court, but to him democracy meant that all ideas, no matter how repugnant, could enjoy freedom of expression.

During the [[Great Depression]], when the Court, dominated by economic conservatives dubbed the "Four Horsemen", time and again declared innovative government measures unconstitutional, Brandeis urged his colleagues to lay aside what he regarded as their prejudices. Brandeis returned to the political arena during the New Deal years, when, behind the scenes, he orchestrated the small-business ideology of supporters like Felix Frankfurter. He kept his own values intact and generally supported the New Deal, voting against it only three times, most notably overthrowing the [[National Recovery Administration|NRA]], which violated Brandeis' hatred of what he called the "curse of bigness."<ref> Brandeis also wrote the opinion holding unconstitutional the Frazier-Lemke Act for the relief of farm debtors. Mason (1946) 619</ref>  

During the [[Great Depression]], when the Court, dominated by economic conservatives dubbed the "Four Horsemen", time and again declared innovative government measures unconstitutional, Brandeis urged his colleagues to lay aside what he regarded as their prejudices. Brandeis returned to the political arena during the New Deal years, when, behind the scenes, he orchestrated the small-business ideology of supporters like Felix Frankfurter. He kept his own values intact and generally supported the New Deal, voting against it only three times, most notably overthrowing the [[National Recovery Administration|NRA]], which violated Brandeis' hatred of what he called the "curse of bigness."<ref>Brandeis also wrote the opinion holding unconstitutional the Frazier-Lemke Act for the relief of farm debtors. Mason (1946) 619</ref>  

Behind the scenes Brandeis was a major advisor to President [[Franklin D. Roosevelt]] and a group of [[New Deal|New Dealers]], led by his protegé [[Felix Frankfurter]], who had a specific reform agenda, such as opposition to big business, support for wages and hours legislation, and support for labor unions.  He helped design the [[Securities and Exchange Commission]], which remains one of the two most important surviving New Deal agencies in the 21st century.  Whenever a possible conflict of interest arose, Brandeis would recuse himself from a Court decision.  

Behind the scenes Brandeis was a major advisor to President [[Franklin D. Roosevelt]] and a group of [[New Deal]]ers, led by his protegé [[Felix Frankfurter]], who had a specific reform agenda, such as opposition to big business, support for wages and hours legislation, and support for labor unions.  He helped design the [[Securities and Exchange Commission]], which remains one of the two most important surviving New Deal agencies in the 21st century.  Whenever a possible conflict of interest arose, Brandeis would recuse himself from a Court decision.  

Brandeis was one of the greatest legal craftsman ever to sit on the Court. One of his enduring contributions was the view that cases must be decided on the basis not only of legal precedents but also of social needs.

Brandeis was one of the greatest legal craftsman ever to sit on the Court. One of his enduring contributions was the view that cases must be decided on the basis not only of legal precedents but also of social needs.

* "What I have desired to do is to make the people of [[Boston]] realize that the most important office, and the one which all of us can and should fill, is that of private [[citizen]]. The [[duty|duties]] of the office of private citizen cannot under a [[republican]] form of [[limited government|government]] be neglected without serious injury to the public."

* "What I have desired to do is to make the people of [[Boston]] realize that the most important office, and the one which all of us can and should fill, is that of private [[citizen]]. The [[duty|duties]] of the office of private citizen cannot under a [[republican]] form of [[limited government|government]] be neglected without serious injury to the public."

** Statement to a reporter in the ''Boston Record'', 14 April 1903. (quoted in Alpheus Thomas Mason, ''Brandeis: A Free Man's Life'' (1946), p. 122.)<!-- An original clipping of this article can be found in the Louis Brandeis Archives at the University of Louisville Brandeis School of Law. -->

** Statement to a reporter in the ''Boston Record'', 14 April 1903. (quoted in Alpheus Thomas Mason, ''Brandeis: A Free Man's Life'' (1946), p.&nbsp;122.)<!-- An original clipping of this article can be found in the Louis Brandeis Archives at the University of Louisville Brandeis School of Law. -->

** Commonly paraphrased as "The most important office is that of the private citizen" or "The most important political office is that of the private citizen", and sometimes mis-attributed to his dissenting opinion in ''[[Olmstead v. United States]]''.

** Commonly paraphrased as "The most important office is that of the private citizen" or "The most important political office is that of the private citizen", and sometimes mis-attributed to his dissenting opinion in ''[[Olmstead v. United States]]''.

* "We must make our choice. We may have [[democracy]], or we may have [[elitism|wealth concentrated in the hands of a few]], but we can't have both."

* "We must make our choice. We may have [[democracy]], or we may have [[elitism|wealth concentrated in the hands of a few]], but we can't have both."

** As quoted by Raymond Lonergan in ''Mr. Justice Brandeis, Great American'' (1941), p. 42.

** As quoted by Raymond Lonergan in ''Mr. Justice Brandeis, Great American'' (1941), p.&nbsp;42.

* "At the foundation of our [[civil liberties|civil liberty]] lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the [[citizen]]."

* "At the foundation of our [[civil liberties|civil liberty]] lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the [[citizen]]."

* "[[Founding Fathers|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 liberty to be the secret of [[happiness]] and [[courage]] to be the secret of liberty. They believed that freedom to think as you will and [[First Amendment|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 the American government."

* "[[Founding Fathers|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 liberty to be the secret of [[happiness]] and [[courage]] to be the secret of liberty. They believed that freedom to think as you will and [[First Amendment|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 the American government."

** Concurring, ''[[Whitney v. California]]'', 274 U.S. 357, 375 (1927), at 375. In this case, in which the Court upheld a [[California]] [[anti-Communist]] statute, Brandeis, writing in a concurrence joined by Justice [[Oliver Wendell Holmes, Jr.]], concurred in the judgment but not in the reasoning. ''Whitney'' was later overruled (with the later Court adopting Brandeis's reasoning) in ''[[Brandenburg v. Ohio|Brandenburg v. Ohio]]'', 395 U.S.  444 (1969).

** Concurring, ''[[Whitney v. California]]'', 274 U.S. 357, 375 (1927), at 375. In this case, in which the Court upheld a [[California]] [[anti-Communist]] statute, Brandeis, writing in a concurrence joined by Justice [[Oliver Wendell Holmes, Jr.]], concurred in the judgment but not in the reasoning. ''Whitney'' was later overruled (with the later Court adopting Brandeis's reasoning) in ''[[Brandenburg v. Ohio]]'', 395 U.S.  444 (1969).

* "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared [[witches]] and burnt [[women]]. It is the function of speech to free men from the bondage of irrational fears."

* "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared [[witches]] and burnt [[women]]. It is the function of speech to free men from the bondage of irrational fears."

==See Also==

==See also==

* [[Anti-Communist]]

* [[Anti-Communist]]

==References==

==References==

==Bibliography==

==Bibliography==

* Baker, Leonard. ''Brandeis and Frankfurter: A Dual Biography'' (1984)

* Baker, Leonard. ''Brandeis and Frankfurter: A Dual Biography'' (1984)

* Levy, David W. and Bruce Allen Murphy. "Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933," ''Michigan Law Review'' Vol. 78, No. 8 (Aug., 1980), pp. 1252-1304 [http://links.jstor.org/sici?sici=0026-2234%28198008%2978%3A8%3C1252%3APTPSIA%3E2.0.CO%3B2-9 in JSTOR]  

* Levy, David W. and Bruce Allen Murphy. "Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933," ''Michigan Law Review'' Vol. 78, No. 8 (Aug., 1980), pp.&nbsp;1252–1304 [http://links.jstor.org/sici?sici=0026-2234%28198008%2978%3A8%3C1252%3APTPSIA%3E2.0.CO%3B2-9 in JSTOR]  

* Mason, Alpheus T. ''Brandeis: A Free Man's Life'' (1946), is the authorized biography. [http://www.questia.com/read/8572577 online edition]

* Mason, Alpheus T. ''Brandeis: A Free Man's Life'' (1946), is the authorized biography. [http://www.questia.com/read/8572577 online edition]

* Mason, Alpheus T. "Louis D. Brandeis" in Leon Friedman and Fred L. Israel, eds. ''The Justices of the United States Supreme Court: Their Lives and Major Opinions. Volume: 3.'' (1997), pp 1019-36 [http://www.questia.com/read/98824298# online edition]

* Mason, Alpheus T. "Louis D. Brandeis" in Leon Friedman and Fred L. Israel, eds. ''The Justices of the United States Supreme Court: Their Lives and Major Opinions. Volume: 3.'' (1997), pp 1019–36 [http://www.questia.com/read/98824298# online edition]

* Strum, Philippa. ''Louis D. Brandeis: Justice for the People'' (1989)

* Strum, Philippa. ''Louis D. Brandeis: Justice for the People'' (1989)

* Strum, Philippa, ed. ''Brandeis: Beyond Progressivism'' (1995), selected letters, speeches, opinions of Brandeis [http://www.amazon.com/Brandeis-Beyond-Progressivism-Modern-Studies/dp/0700606874/ref=sr_1_4?ie=UTF8&s=books&qid=1207954416&sr=8-4 excerpt and text search]

* Strum, Philippa, ed. ''Brandeis: Beyond Progressivism'' (1995), selected letters, speeches, opinions of Brandeis [http://www.amazon.com/Brandeis-Beyond-Progressivism-Modern-Studies/dp/0700606874/ref=sr_1_4?ie=UTF8&s=books&qid=1207954416&sr=8-4 excerpt and text search]