Louis Brandeis

Louis Dembitz Brandeis was an important American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief.

Extra-Judicial Writings

• The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world . . . ."
  • "The Right to Privacy," 4 Harvard L. Rev. 193, 196 (1890).

• The bow must be strung and unstrung . . . there must be time also for the unconscious thinking which comes to the busy man in his play.
  • Letter to William Harrison Dunbar (February 2, 1893), reprinted in Letters of Louis D. Brandeis Volume I (1870–1907): Urban Reformer 109 (Melvin I. Urovsky & David W. Levy, eds., State University of New York Press 1971).

• When a man feels that he cannot leave his work, it is a sure sign of an impending collapse.
  • Letter to Alfred Brandeis (March 8, 1897), reprinted in Letters of Louis D. Brandeis Volume I 127 (Melvin I. Urovsky & David W. Levy, eds., State University of New York Press 1971).

• It is, as a rule, far more important how men pursue their occupation than what the occupation is which they select.
  • The Opportunity in the Law, 39 American Law Review 555, 555 (1905)

• [N]o people ever did or ever can attain a worthy civilization by the satisfaction merely of material needs . . .
  • "Hours of Labor" (1906), reprinted in Brandeis on Democracy 91 (Philippa Strum, ed., 1995).

• Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.
  • Other People's Money—and How Bankers Use It (1914)

• A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; for being loyal to his family, and to his profession or trade; for being loyal to his college or his lodge. . . . For only through the ennobling effect of its strivings can we develop the best that is in us and give to this country the full benefit of our great inheritance.
  • The Jewish Problem And How to Solve It (1915)

• What are the American ideals? They are the development of the individual for his own and the common good; the development of the individual through liberty, and the attainment of the common good through democracy and social justice.
  • “True Amercianism” (1915)

• [N]o law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is to be applied.
  • The Living Law, 10 Illinois Law Review 461, 467 (1915-16)

• There is in most Americans some spark of idealism, which can be fanned into a flame. It takes sometimes a divining rod to find what it is; but when found, and that means often, when disclosed to the owners, the results are often extraordinary.
  • The Words of Justice Brandeis (1953)

• [T]hat which is man-made can be unmade.
  • Letter to Frank Albert Fetter (November 26, 1940), reprinted in Letters of Louis D. Brandeis Volume V 648 (Melvin I. Urovsky & David W. Levy, eds.,State University of New York Press 1978).

• We may have democracy, or we may have 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

Judicial Writings

• The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use.
  • Dissent in International News Service v. Associated Press (1918)

• Full and free exercise of this right by the citizen is ordinarily also his duty; for its exercise is more important to the nation than it is to himself. Like the course of the heavenly bodies, harmony in national life is a resultant of the struggle between contending forces. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril.
  • Dissent in Gilbert v. Minnesota, 254 U.S. 325, 338 (1920)

• There are many men now living who were in the habit of using the age-old expression: 'It is as impossible as flying.' The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation.
  • Dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932)

• If we would guide by the light of reason, we must let our minds be bold.
  • New State Ice Co. v. Liebmann, at 311

• Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. […] This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.
  • Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 406 (1932)

Liggett Co. v. Lee

In Liggett Co. v. Lee, 288 U.S. 517 (1933), Justice Brandeis dissented from the opinion of the Court.

• The prevalence of the corporation in America has led men of this generation to act, at times, as if the privilege of doing business in corporate form were inherent in the citizen; and has led them to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life, and, hence to be borne with resignation.
  • at 548.

• Through size, corporations, once merely an efficient tool employed by individuals in the conduct of private business have become an institution-an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state. The typical business corporation of the last century, owned by a small group of individuals, managed by their owners, and limited in size by their private wealth, is being supplanted by huge concerns in which the lives of tens or hundreds of thousands of employees and the property of tens of hundreds of thousands of investors are subjected, through the corporate mechanism, to the control of a few men. Ownership has been separated from control; and this separation has removed many of the checks which formerly operated to curb the misuse of wealth and power. And, as ownership of the shares is becoming continually more dispersed, the power which formerly accompanied ownership is becoming increasingly concentrated in the hands of a few. . . . [and] coincident with the growth of these giant corporations, there has occurred a marked concentration of individual wealth; and that the resulting disparity in incomes is a major cause of the existing depression.
  • at 565-67 (emphasis added).

• [O]nly through participation by the many in the responsibilities and determinations of business can Americans secure the moral and intellectual development which is essential to the maintenance of liberty.
  • at 580.

Whitney v. California

In Charlotte Anna Whitney v. California, 274 U.S. 357 (1927), the Court upheld a California anti-Communist statute. Justices Brandeis concurred in the judgment but not in the majority's reasoning, writing a concurrence which was joined by Justice Holmes. Whitney was later overruled (with the later Court adopting Brandeis's reasoning) in Brandenburg v. Ohio.

• 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 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.
  • at 375

• 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.
  • at 376

• Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant 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.
  • at 377

• If there be time to express 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.
  • at 377.

Olmstead v. United States

This case (Olmstead et al v. United States, 277 U.S. 438 (1928)) concerned the scope of the Constitutional protection against unreasonable search and seizure. The court found that telephone wiretaps do not violate the Fourth or Fifth Amendment. Justice Brandeis dissented (a position later vindicated in Katz v. United States).

• The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. [. . . ] Can it be that the Constitution affords no protection against such invasions of individual security?
  • at 474

• 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 knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. 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.
  • at 478

• Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
  • at 479

• Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. 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 lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 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.
  • at 485

Attributed

• Behind every argument is someone's ignorance.
  • Reported in Irving Dilliard, Mr. Justice Brandeis, Great American (1941), p. 112.

Quotes of others about Brandeis

• True human progress is based less on the inventive mind than on the conscience of men such as Brandeis.
  • Albert Einstein, statement sent to the Boston journal The Jewish Advocate on 1931-10-19 on the occasion of Justice Brandeis' seventy-fifth birthday, quoted in Helen Dukas and Banesh Hoffman, eds., Albert Einstein: The Human Side (Princeton University Press, 1981), ISBN 0-691-02368-9, p. 85

• With deepest veneration and fellow feeling, I clasp your hand on the occasion of your eightieth birthday. I know of no other person who combines such profound intellectual gifts with such self-renunciation while finding the whole meaning of his life in quiet service to the community. We -- all of us -- thank you not only for what you have accomplished and brought about, but also because we feel happy that such a man should exist at all in this time of ours, which is so lacking in genuine personalities.
  With reverent greetings....
  • Albert Einstein, letter to Justice Brandeis on 1936-11-10, ibid.
  • Dukas and Hoffman comment: "the handwritten original is among the Brandeis papers at the Law School of the University of Louisville."

• In a time of moral and intellectual anarchy, he handed on the great tradition of faith in the mind and spirit of man.
  • Dean Acheson, former clerk to Justice Brandeis, after Brandeis’s death in 1941.

• To Brandeis, as to Jefferson, the key to a successful democracy lies in the spirit, the vitality, the daring, the inventiveness of its citizens.
  • Vincent Blasi, The First Amendment And The Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 Wm. & Mary L. Rev. 653, 686 (1988).

• Every case that fell to him for opinion gave fresh occasion for the application of his principle that knowledge must precede understanding, and understanding should precede judging.
  • Paul A. Freund, Proceedings in Memory of Mr. Justice Brandeis, 317 U.S. ix, xix–xx (1942).

• [Brandeis] did not believe with the evangelist that . . . truth could be found by abiding in the Word or in becoming the disciple of any leader. Neither did he think it came from intuition or from speculation in metaphysics. He thought it could and would come only from the relentless, disinterested and critical study of facts.
  • Henry J. Friendly, Mr. Justice Brandeis: The Quest for Reason, 108 U. Pa. L. Rev. 985, 999 (1960).

• There is nothing cold or detached or aloof about the private Brandeis, but it is perfectly in keeping with his views of privacy that while he was alive he kept . . . his life and personality hidden from public view.
  • Introduction to The Family Letters of Louis D. Brandeis at xxi (Melvin I. Urovsky & David W. Levy, eds., University of Oklahoma Press 2002).