Citizen Brandeis

SOME of the wiser words about the great American experiment—namely, the creation of a continent-sized country, governed of, by and for the people—were written by Louis Brandeis, a justice of the Supreme Court between 1916 and 1939. To Brandeis is owed the observation that the federal system often gains by letting each state, if its citizens so choose, serve as a “laboratory” of democracy, trying out new policies without imposing them on the whole country. Few have improved on Brandeis’s defence of free speech, written in 1927 after a Californian woman was jailed for speaking on behalf of a communist party. America’s founders, he argued, put their faith in reasoned discussion among citizens and believed that the “greatest menace to freedom is an inert people”. Thus, unless hateful speech poses an imminent danger, the remedy is “more speech, not enforced silence.”

The centenary of the Brandeis confirmation falls next month, sparking a flurry of scholarship. His confirmation by the Senate was bitterly contested by the standards of the day. Brandeis was the first Jewish justice, nominated by Woodrow Wilson amid some coded anti-Semitism (one critic accused him of “Old Testament” cruelty towards courtroom opponents). Others called him a dangerous radical: he was an outspoken foe of concentrated power, whether wielded by rival-crushing big businesses, or by remote and therefore clumsy big government.

A live political charge still flows through his words: indeed, with his views on tolerating speech that shocks, Brandeis might struggle to give a college commencement address in 2016 without provoking jeering protests. But in a time of populist, elite-bashing rhetoric, his beliefs about the “curse of bigness” are even more topical. To simplify, Brandeis urged intense scepticism when any leader—in politics or business—claims to have the general interest at heart, while at the same time constructing any agency or enterprise so large that it cannot be understood, efficiently managed or held to account by alert, responsible, ordinary citizens.

A fine new book, “Louis D. Brandeis: American Prophet” by Jeffrey Rosen, describes how seriously the justice took these beliefs. Though eager to see big banks and businesses broken up to prevent monopolies, Brandeis turned on President Franklin D. Roosevelt and his young left-wing advisers when they used the New Deal to bring great swathes of the economy, including small farms, under central government control. Mr Rosen, who heads the National Constitution Centre in Philadelphia, describes Brandeis joining more conservative justices in striking down key planks of the New Deal in 1935. After that display of wrath, Brandeis summoned a presidential aide to hear a message for FDR. “This is the end of this business of centralisation,” he said, adding that “as for your young men…tell them to get out of Washington…back to the states. That is where they must do their work.”

Brandeis was brought up in Kentucky by a loving and bookish family of secular Jewish immigrants from Prague. His upbringing, which included three years of schooling in Dresden, left him with a distrust of high finance (bankers playing with “other people’s money”, he scowled), a fondness for small business and a horror of chain stores that was at once rather Germanic and powerfully influenced by Thomas Jefferson’s vision of America as a country of self-governing yeoman farmers.

Brandeis offers modern political lessons because his equal distrust of big corporations and big government puts him at odds with both political parties. The Republican-controlled Senate may be refusing even to hold hearings for Merrick Garland, the centrist judge nominated by Barack Obama to sit on the Supreme Court after the recent death of Justice Antonin Scalia. But if transported to the present, Brandeis (who died in 1941, aged 84) would not have a hope of nomination, let alone confirmation.

It is not just that the left would find Brandeis dismayingly unmoved by the ills of racism, and the right would find him too willing to read the constitution in the light of modern values and science. His real problem is simpler: both parties rather like some forms of bigness. To too many Democrats, calls for limited government sound like unilateral disarmament: they view federal authority as the only effective check on corporate power, big polluters or those who challenge civil rights. The policy platform of Hillary Clinton, the presumed Democratic presidential nominee, is built on a tottering stack of federal regulations, tax credits and paper-spewing schemes to make a Brandeis weep. Meanwhile, too many Republicans make populist arguments about bullying officials and Washington pen-pushers, while turning a blind eye to years of mergers that have left some industries at the mercy of a few, exceedingly powerful, incumbents. One Republican, the putative presidential nominee Donald Trump, positively boasts that he will run the economy like a Putinesque strongman.

Chain-store politics

Even Brandeis’s passion for devolving power to accountable levels of government has been subverted by the forces of bigness. National interest groups have perfected the art of drafting cut-and-paste “model” bills, ready to be passed by pliant legislatures. Rather than acting as innovators in democratic laboratories, such groups look more like chain stores choosing locations for a new franchise. Gun lobbyists, say, know just which statehouse might buy their law allowing teachers to pack heat at school. Trade unions know in which cities to sell a minimum-wage ordinance.

Ordinary Americans have to take their democracy back from the political hacks and lobbyists, Brandeis might respond. Always suspicious of experts, he put his trust in enlightened citizens. Civic activism is hard in a busy, distracted, cynical age. But barriers to rallying like-minded campaigners are falling, too. The digital world might startle the stern and cerebral justice: he loathed newspapers filled with “gossip”. But if new laboratories of democracy are out there, Brandeis would surely bless them.