Tag Archives | Louis Brandeis

Louis Brandeis comments on the right of self-defense

From Leonard Baker,  Brandeis and Frankfurter: A Dual Biography (1984), p. 341. On June 18, 1930, Justice Brandeis (who was the best-known Zionist in the United States) met with the U.K.’s Ambassador to the United States, Sir Ronald Lindsay:

Brandeis told Sir Ronald “that it was wholly contrary to any conception of civil rights with which I was familiar, through study of the Anglo-Saxon institutions and the American experience, that when a government found itself unble to afford protection, citizens should not be permitted to protect themselves.” The English did not protect the Jews, nor allow the Jews to arm themselves against the Arab threat.

Or as Brandeis also said, “We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force…” Alfred Lief, The Brandeis Guide to the Modern World (1941), p. 212. […]

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Louis Brandeis and the Incorporation Doctrine

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book.  But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment … was intended to extend the protection of the Bill of Rights to the states.  Brandeis took this position in his dissent in Gilbert v. Minnesota.”  False.  You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]”.  False.  There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent.   Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words.  False.  Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.”  False.  The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as […]

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