Yeshiva University - Masmid Yearbook (New York, NY)

Page 31 text:

M A S M 1 D Realism, cxpc-ricncv, ilirul l)iii lilc, ilicsc liclp him jiiilgc the merits of a case, ami they supply him with the facts to defend his opinion. In this approach to justice, both as a lawyer ,muI .i jud c, he was a pioneer, the first, in each lasc, lo i.ikc full accoimt of what is happening ouisidt the I ' oirr walls (if the jiidi e ' s chamhcr. i ' lir this .ilocc Hraiidtis will ixinain ininuiri.il, ' Ihoiigh Mr. Urandeis has no ildiniiu philosophy of law, a few fundamental iHlitl ' s of .ilniost axiomatic strength may he discerned through all his writings. They arc his credo as a man and his guiding stars as a jurist. Once turned a liberal he agitaicil lor and de- fended in court such liberal legislation as minimum wage laws, shorter hours for women, rights of labor, woman ' s suffrage, workmen ' s compensation, protection of holders of life insurance policies. A warm sympathy for the underprivileged and a deep sense of righteousness are the latent forces that have now come to the fore and demanded expression in social propaganda and political action. ' ct Mr. Hrandeis is a firm individualist. This he has shown not only in his fights against tlic trusts and other concentrations o f power in the econoinic arena, but also in defending self-expres- sion by the individual in the press and the public forums, at home and at work. In one place he speaks of the right to be left alone as the most comprehensive of rights, and the right most valued by civilized man. Individual liberty, however, cannot be achieved without econoinic freedom. Worshipping not words but facts, he demands a society where in- dividual freedom of action is just as much a part of the rights of a orker as it is of his employer. The Roosevelt plan for insurance of every . merican person against the usual contingencies of modern life was long ago advocated by Brandeis in the following statement: We must find means to create in the individual financial independence against sickness, accidents, unemployment, old .ige and the dread of leaving his family destitute if he suffer premature death. We have become practi- cally a world of employees; anti if a man is to have real freedom of contract in de.iling with his employer he must be financially indcix-ndcnt of the.se ordinary contingencies. Unless wc protect him from this oppression it is useless to call him free. Brandeis is a democrat. But his belief is in democracy as a practice, not merely as an ideal. He started with the assumption that in this tountry every person of voting age belongs (or should belong) to the ruling class. Therefore he is in favor not only of high minimum wages but also of a minimum of leisure so that e ' cn the workingman may have ample time to study and understand the problems that his country is faced with. The individual, whoever he be-, must not bc separated from his rights in the continuous flux of affairs. But no right whatsoever should be absolute in a world where everything is subject to change. For all rights are derived from the purpose of the society in which they exist; above all rights rises the duty to the country. Here we see Brandeis the Individualist sacrificing of his liberty for the benefit of the group. The concept of social justice is superior to that of individualism. And who shall hold the balance between the two but the government. ' The government must keep order not only physical but social. While on the bench Mr. Brandeis continues his close contact with the social and economic phases of modern life even as he did before, and he grows with them. From advocating the removal of the more prominent abuses of modern industry- he has advanced to the sanaion of social experi- mentation which demands as a prerequisite definite checks on individual enterprise. The Legislature of Oklahoma found that more ice w.is being pro- duced in that state than was being demanded. Ir tlierefore passed a Law forbidding the building of new ice faaories until warranted by the demand. On appeal, the Supreme Court declared this law to be unconstitutional. Justice Brandeis delivered a dissenting opinion that has already become classical and which reads like a charter for the

Page 30 text:

MASMID social philosophy. I have been too intent on con- crete problems of practical justice. At another time he gave his answer to a similar question as follows: I have many opinions, but I am no doctrinaire. Reading his writings, consisting mainly of lawyers ' briefs, judicial decisions and a few addresses, one can discover no social philo- sophy which could combine them all in one con- sistent unit. One cannot point to certain principles of law and procedure and declare that Mr. Brandeis believes in them and relies on them as bases for his liberal opinions. For Mr. Brandeis is more an economist than a jurist, more a student of society than of the law. To a friend he once confessed: I first decide the case on its merits, then dig up the law. As a lawyer he gained fame for his briefs which contained a minimum of law argument and a great deal of economic and social data, on the strength of which he relied to win the court to his side of the issue. The State of Oregon passed a law that no female shall be employed in any mechanical establishment, factory or laundry more than ten hours during any one day. The constitutionality of this act was challenged by an Oregon employer, and Mr. Brandeis, then still a lawyer, represented the State of Oregon before the Supreme Court in Washington. His brief contained two pages of legal argument and one hundred pages of scien- tific data, and extracts from reports of public health bureaus of many countries, all pointing to the great evil of overwork on women in certain industries. The case was decided in favor of the State of Oregon. As a lawyer he once said: In the past, courts have reached their conclusions largely deductively, from preconceived notions and precedents. The method I have tried to employ in arguing cases before them is inductive, reasoning from the faas. Law to him has no existence separate from the facts of life which it is supposed to reg- ulate; they should both develop simultaneously. When law, as finally interpreted, dissociates itself from the real life, it cannot be said any longer to be in the service of truth and justice. The question whether utility lates are high or low obviously can- not be decided by a phrase in the law; rather there must be taken into consideration all the known facts about the utilit) ' in question as well as all the possible results that may reasonably be expected to follow in case the rates are decided one way or another. Mr. Brandeis insists that there must be a con- nection between social change and judicial deci- sion. In order to arrive at what to his mind seems to be a just decision, Mr. Brandeis does not manoeuver the law, but argues with facts and figures. In order to be able to decide whether a Nebraska law requiring a loaf of bread to be of a certain minimum weight was constitutional, Mr. Justice Brandeis made a thorough study of the technique of baking. Remember, he once said, arithmetic is the first of sciences, and the mother of safety. It is because of his worship of facts and his willingness to be guided by them that Brandeis became a liberal. From the darling of the rich in aristocratic Boston he naturally changed into the people ' s counsel, and from an indif- ferent Jew he was transformed into an ardent Zionist. The strange transformation from a de- fender of corporations to a defender of public interests happened as a result of preparations for a course in Business Law which he was asked to give to the students of the Massachusetts Institute of Technology. Studying the law, as well as the industrial unrest of the time, he was led to the conclusion that the Common Law, built up for a simpler life, is inadequate for the complex rela- tions of the modern factory system, and that labor was given inadequate protection. Then followed a period of fighting against the big corporations, for he now saw the many evils that may accrue to labor and to the country as a whole from un- leashed monopolistic corporations as well as from the great waste of uncontrolled competition. He was able so say: I had my share of big corpora- tion work. I even worked for a trust or two. Perhaps that is one reason why I am not a cor- poration lawyer now. Twenty-eighl

Page 32 text:

MASMID New Deal. In it he said: To stay experimentation in things social and economic is a great responsibility. Denial of the right to experiment may be fraught witli 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 and economic experiments without risk to the rest of the country. This court has the power to prevent an experi- ment . . . But, in the exercise of this high power, we must be ever on 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. The last sentence is typically Brandeisian. As a jurist Mr. Brandeis is classed among those who interpret liberally the Constitution of the United States. With other liberal judges he be- lieves that the Constitution was purposely written in vague terms so as to allow for future develop- ments and adaptation to new conditions. Differing with the radicals, he does not see the necessity for a new constitution. It must be added, however, that in common with the right wing of the New Dealers, Brandeis does not look for a radical transformation of our present social system. Fundamentally, he seeks only for betterment within the broad lines of existing institutions. For fifty years of a very active life Mr. Brandeis took no part in the interests of the Jewish com- munity. Indeed, when past fifty he did enter the Jewish areria, many were surprised to learn of his Jewishness. Here also it was indirectly that he came in contact with what is generally referred to as the Jewish Problem. In 1910 he was asked to serve as arbitrator in a strike in the clothing industry of New York city. Since that time he has been a student of the Jewish people and its prob- lems. For a number of years he served as president of the Zionist Organization of America, and was in.strumental in influencing the British Government to issue the Balfour Declaration. President Wilson ' s support of Jewish causes at the Peace Conference may be traced directly to the influence of Justice Brandeis. To Brandeis there is no conflict or con- tradiction between his Zionism and Americanism. As he himself declared: I am a better American for being a good Zionist. They are one and the same thing to him. In an article in the Menor.ah Journal in 1915 he tells us that the ability of the Russian Jew to adjust himself to America ' s essentially democratic conditions is not to be ex- plained by Jewish adaptability. The explanation lies mainly in the fact that the 20th century ideals of America have been the ideals of the Jew for more than twenty centuries. When the history of the New Deal, the American revolution with a small R, will be written, the name of Brandeis will go down in its annals as one of its founding fathers. The reader must already have noticed the similiariry between legislation recently enacted or about to be proposed, and the ideals of Brandeis as he has expressed them in his various writings. His m- fluence on the New Deal and representative New Dealers continues even to the present, though in an indirect manner. Should the New Deal prove successful, Brandeis will occupy a place in American history similar to that of Abraham Lincoln, to whom he bears more than a superficial resemblance. If the New Deal should prove to be, as some fear or hope, only a period of transition, to give way soon to a sharp turn to the right or to the left, Brandeis will still be remembered as a constructive and prophetic leader who, by example and guidance, lessened the grave dangers inherent in a period of transition, and as a jurist who sought, found, and applied justice in a changing world. Thirty