The speech cases following World War I ushered in a new era in Supreme Court history. From John Marshall to the Civil War the Court had been concerned with defining governmental powers and allocating those powers between the states and the federal government. After 1865, the justices had focused on the protection of property rights and the extent of state police powers in regulating the industrial market and workplace. The Court still accepted these types of cases for another two decades, but starting in the 1920s more and more of the docket involved issues of individual rights and liberties, and especially the question of “incorporation,” whether the protections embodied in the Bill of Rights applied to the states as well as to the federal government.
Brandeis wrote many of his most important opinions in the 1920s, pointing the way to an expansion of civil liberties, establishing a constitutional basis for privacy, and supplying an enduring rationale for why free speech is essential to a democratic society. He did not, of course, always prove to be a prophet, and not all of his jurisprudence has been greeted with applause by liberals. Yet if he had never written anything other than the Olmstead and Whitney opinions, his impact on American constitutional law would still have been great.
THE FRAMERS INTENDED the Bill of Rights to apply only to the national government and not to the states, a position affirmed by the Supreme Court in Barron v. Baltimore (1833). Scholars now believe that the Fourteenth Amendment, with its call for due process and equal protection of law, 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 in 1920. In rebutting the majority opinion that the abridgment of speech had been done by a state and therefore outside the protection of the Constitution, he declared that such an infringement on basic rights “is not one merely of state concern. The state law affects … rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. These are rights which are guaranteed protection by the Federal Constitution.” He could not believe, he famously concluded, “that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.” Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion by Justice McReynolds.
After the war, Nebraska banned the teaching of foreign languages in elementary schools, and a jury convicted Robert Meyer for teaching German in a parochial school. Justice McReynolds utilized the due process argument of Lochner to rule that the Fourteenth Amendment did protect liberty, “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” McReynolds framed much of his argument in terms of property rights—the Nebraska law interfered with the callings of modern language teachers—but he also found violation of free speech. While the legislature’s goal of fostering patriotism had been understandable during the war, “peace and tranquility” now reigned, and no adequate justification for the law now existed. Without using the exact words, McReynolds had applied the clear-and-present-danger test and found the statute lacking.
Although Holmes dissented, Brandeis joined the McReynolds opinion and did not disagree with its reasoning. As he often said, he would have preferred if the Fourteenth Amendment’s Due Process Clause had never been passed, but unless repealed, it had to be applied and to protect what he considered fundamental rights—speech, education, choice of profession, and the right to travel—none of which should be restricted except on a showing of clear-and-present danger.
That same term the federal courts for the first time overturned a state criminal decision. In 1920 an all-white jury convicted six black men to death and dozens of others to long prison terms for the death of a white person during the 1919 Arkansas race riots. Black witnesses at the trial were whipped until they agreed to say that the accused were guilty, and a mob outside the courtroom threatened violence and death if the jury did not convict all of the defendants. The defense lawyer appointed by the court called no witnesses and did not ask for a change of venue to a safer place. The trial took less than an hour, and the jury brought back guilty verdicts in only five minutes.
Appalled by this clear travesty of justice—Brandeis called the Arkansas reports too horrendous to ignore—the Supreme Court granted the National Association for the Advancement of Colored People’s petition for writs of habeas corpus, reversed the convictions, and ordered new trials. The threat of mob violence had permeated the trial, Holmes declared, and the trial itself had been little more than a judicially sanctioned lynching. When state courts could not provide minimal procedural fairness, the federal courts had a clear duty “to secure to the petitioners their constitutional rights.” The decision marked a departure for the Court, which had previously avoided taking an oversight role over state criminal courts. Holmes’s opinion, however, did not apply the Sixth Amendment’s right of a fair trial to the states; rather, he utilized the Due Process Clause of the Fourteenth Amendment.
Two years later Brandeis joined in another McReynolds opinion extending the reach of constitutional protection into the states. The Ku Klux Klan had pushed through a law in Oregon requiring children to attend public schools, with the clear intent of driving Catholic parochial schools out of business. Again McReynolds used the clear-and-present-danger test to find no justification for the law, as well as a property right in the parochial schools. But the law also interfered with personal rights. “The child is not the mere creature of the State,” he wrote, “those who nurture him and direct his destiny have the right, coupled with the high duty, to prepare him for additional obligations.”
McReynolds’s two school decisions and Holmes’s trial opinion all rested on the Due Process Clause, and the authors did not claim that the clause applied the Bill of Rights to the states. All three opinions, however, took a very broad view of what due process encompassed, and quite explicitly said that it included rights other than those of property. This Brandeis had said in 1920; it would be only a matter of time before some enterprising lawyer would ask the Court to overturn Barron v. Baltimore. In the meantime, the Court had to deal with an avalanche of cases generated by prohibition.
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Prohibition officers raiding a Washington, D.C., lunchroom, 1923
PROHIBITION SENTIMENT had been growing for decades, and proponents, including a large number of progressives, shepherded the Eighteenth Amendment through Congress during the war; three-fourths of the states ratified by the end of January 1919. Advocates believed that it would usher in a new golden age for America, protecting families against the abuses of drunken husbands and increasing production as men came to work regularly instead of missing their shifts while in a stupor. Underneath the reformist rhetoric could be found a deep distrust of the city and its immigrant masses, for whom the saloon served as a social center.
Brandeis had liked his beer and an occasional whiskey, and as his brief for the liquor dealers in Boston indicated, he preferred policies that would foster temperance, not prohibition. Prior to the war Alfred regularly sent his brother good Kentucky bourbon, which Louis apparently enjoyed and served to his guests. Even if he had opposed prohibition personally, his views on democratic governance led him to support it after ratification. In a democracy the people governed, and if occasionally they made the wrong choice, then the country would have to live with it until a majority chose another path. The people had spoken, whether wisely or not.
Brandeis had spoken for the Court in upholding the Wartime Prohibition Act and joined the majority in approving the Volstead Act implementing the Eighteenth Amendment. During the 1920s a clear majority of the Court supported the great experiment. Butler, Sutherland, and McReynolds detested prohibition because they opposed the expansion of the national administrative state and believed that positive law—that is, statutory enactments—should not overthrow received social values. Taft reported to his brother, “Holmes, Van Devanter, Brandeis, Sanford and I are still steady in the boat.” Holmes and Brandeis bowed to the will of the people, although Holmes thought that this did not mean he could not continue to enjoy his drink and receive bottles from his friends. Taft and Van Devanter saw opposition to dryness as resistance to the legal order itself. But everyone on the Court understood that the Eighteenth Amendment had opened a Pandora’s box of constitutional problems, not the least of which involved the nature of the federal system itself.
There had been state prohibition laws since the late nineteenth century, and at the time of American entry into the war twenty-six states, more than half of the Union, were legally dry; in addition, a number of so-called wet states permitted local option that allowed some rural areas to ban liquor. Enforcement of these laws had been the responsibility of the states, and while effectiveness varied, there had been no reports of massive criminality or widespread public flouting of the laws. The National Commission on Law Observance and Enforcement later called state enforcement effective, and another study termed local laws “fairly well obeyed and respected.” In contrast, federal enforcement of prohibition quickly turned into a “nation-wide scandal” that in President Harding’s words was “the most demoralizing factor in our public life.”
At the heart of the problem lay the impossible task demanded of the Eighteenth Amendment, the moral reform of a nation that had been drinking since colonial times. Prohibition stands as the preeminent example of law’s inability to change the personal behavior of people who do not want to change. Beyond that, the amendment’s division of responsibilities left it unclear who had the primary responsibility for enforcement, the states or the national government. Section 2 read, “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” Did that mean that Congress could set up police functions inside the states? What if a state did not pass the necessary enforcement law or, as New York did in 1923, repealed its statute? Could states set up barricades to prevent alcohol’s coming in from other states or from Canada? Who had the responsibility to patrol the shores to prevent smuggling? Did the federal government have the authority to conscript state law enforcement officers? The federalism that had been so essential a part of the American constitutional scheme for more than 130 years reeled from the onslaught of issues never imagined by the Framers.
Brandeis had a strong and commonsensical approach from which he never wavered, but which also showed how far he misjudged the deep opposition to prohibition. When Woodrow Wilson began putting together the Document, he asked Brandeis to draft the section on prohibition enforcement, and it reflected his deep commitment to traditional notions of federalism. The idea of “concurrent power” in section 2 indicated that the American people “recognized fully that the law could not be enforced without the co-operation of the States within the Nation.” Both the states and the national government “should perform that part of the task for which it was peculiarly fitted.” The federal government should act “against illegal importation of liquor from foreign countries and to protect each state from the illegal introduction into it of liquor from another State.”
Brandeis—a great opponent of large government—admitted that to enforce prohibition effectively, the government of the United States “requires centralized, unified action and the employment of the large federal powers and resources.” The states for their part had to police illegal sales of illegally manufactured liquor within their borders. Such a task, he believed, states could do far better than the national government, because it involved “diversified governmental action and adaptation to the widely varying conditions in, and the habits and sentiments of the people of, the several States. It is a task for which the Federal Government is not fitted.” When their good friend Emory Buckner became U.S. attorney for the Southern District of New York, Brandeis told Frankfurter to urge Buckner to divide up all cases coming to his office between those involving smuggling from abroad or bringing in alcohol from other states and those wholly intrastate. He would find that the first class would occupy all of his time and resources, and he should ignore the second group completely.
Brandeis assumed that because prohibition had been adopted as the law of the land, it would be enforced, and therefore all one had to do was determine how the states and the national government should share in the enforcement. It made perfectly good sense to assign Washington the problems of interstate and foreign shipments, and have the states police their own people. In many ways this is the solution that the Framers could have agreed upon, since it treated the federal system as one in which the states and the national government shared powers and responsibilities. Brandeis did not expect the wide-scale flouting of the law, or that some states would refuse to enforce prohibition, although he should have.
In his brief for the Massachusetts Protective Liquor Dealers’ Association thirty years earlier, Brandeis had written, “Liquor drinking is not a wrong; but excessive drinking is. Liquor will be sold; hence the sale should be licensed. Liquor is dangerous; hence the business should be regulated. No regulation can be enforced which is not reasonable.” He had urged the legislature to try to imagine a community in which men cannot drink because the state says they may not do so. “No law can be effective which does not take into consideration the conditions of the community for which it is designed; no law can be a good law—every law must be a bad law—that remains unenforced.”
Throughout the 1920s the problems of prohibition enforcement exploded astronomically. Federal courts found their dockets overloaded with cases that should have been heard in a municipal night court. In the big cities, a stranger could stop a policeman on the street and be courteously informed of the location of the nearest speakeasy as well as the phrase—”Joe sent me”—needed to enter. And to supply bootleg liquor or illegally imported alcohol, crime flourished as it never had before in the United States. Even Brandeis could not ignore the relation of illegal drink and crime.
ONE MIGHT HAVE EXPECTED a conservative Court to have embraced Brandeis’s assumptions about the proper roles of state and federal responsibility and power; instead, the majority consistently took an expansive, indeed almost unlimited, nationalistic tone when it came to enforcement. In one case Justice Sanford, speaking for a unanimous bench, said that since prohibition “is within the authority delegated to Congress by the Eighteenth Amendment, its validity is not impaired by reason of any power reserved to the States.” In the enforcement of prohibition, the Tenth Amendment meant nothing, since the Eighteenth gave Congress all necessary powers. Fear of overweening national authority, a bedrock of conservative as well as federalist thought since the founding of the Republic, vanished in the Taft Court’s enthusiasm for the great experiment. Brandeis, who had shared Wilson’s aversion to big government, went along with nary a murmur.
Alpheus Mason, in his biography of the justice, termed the section on prohibition “The Prophet Stumbles,” noting that Brandeis showed little sympathy for those adversely affected by the Eighteenth Amendment and was “less alert to the invasion of liberty.” Another biographer, Philippa Strum, agreed. Brandeis “did not merely uphold the Prohibition laws as a regrettable but legitimate government experiment, but permitted enforcement even when it violated civil liberties.” Brandeis wrote the Court’s opinion allowing the government to close distilleries and breweries without compensation to the owners, and also spoke for the Court in ruling that the ban against double jeopardy did not apply when a person had been convicted of one crime for possessing alcohol and then convicted for selling that same liquor. He wrote the majority opinion that sustained the federal government’s confiscation of an automobile that carried illegal alcohol, as well as that upholding the congressional ban against the then common prescription of wine and liquor for medicinal purposes.
Brandeis fully supported prohibition, not only as a member of the Court but also as an individual. Unlike Holmes, who had no personal liking for the regime, Brandeis and his wife came to believe that the abolition of strong drink could be in the national interest. In 1917 Brandeis encouraged the editor of the Survey, Arthur Kellogg, to look into the social and industrial effects of wartime prohibition, indicating that he expected them to be positive. In 1920 he told Kellogg’s brother that “we shall soon have had a year of freedom from what has been regarded as the main causes of misery—unemployment, low wages, and drink,” and he urged him to investigate just what effect prohibition had had on America. With frequent recourse to the justice for advice, the Survey began an intensive study of Grand Rapids, Michigan, and came out with a special prohibition number in November 1920, reporting that drunkenness had disappeared, families spent more time together, the saloon was no longer the visitor’s entry to the city, and the number of arrests had dropped so much that the police force had been reduced—all a result of prohibition. The article drew an enthusiastic response from Brandeis, who suggested that Grand Rapids could serve as a model for what could be done on a local level by right-minded citizens.
As Brandeis grew older, the ascetic streak in him strengthened, and he and Alice had no problem eliminating beer, wine, and whiskey from their household. While historians have concentrated on what might be called the darker side of prohibition—nativism, fear of cities, and resentment of the new—many Americans who had none of these traits believed that the elimination of intoxicating beverages would be a boon for society, and it should be no surprise that Brandeis belonged to this group. Unfortunately, in this as in so many other areas of his life, we can see a shift in views but have little from the man himself to explain it.
AS FOR THE CASES that Mason and Strum see as a failure to support civil liberties, a closer examination of these decisions indicates a somewhat different story. To begin with, the incorporation of the Bill of Rights, which Brandeis helped to begin in the 1920s, did not reach fruition until well after World War II. What we today consider normative interpretations of the Bill of Rights did not exist in the 1920s, and it is ahistorical to demand that Brandeis—or any member of the Taft Court—abide by standards that would not be in place for another three to four decades. The Court did not even agree on the idea of incorporation until 1937, when Justice Benjamin Cardozo, speaking for an eight-man majority that included Brandeis, set out the notion of selective incorporation. The Fourteenth Amendment did not automatically subsume the entire Bill of Rights. It did, of course, include the First Amendment, because freedom of speech and thought “is the matrix, the indispensable condition, of nearly every other form of [freedom].” But for the other amendments, the Court should apply only those that are “of the very essence of a scheme of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Brandeis, of course, began this process, and before he left the bench in 1939 had helped to lay the foundation for what became the postwar rights revolution.
Not all of these decisions, even if they strike a modern civil libertarian as perverse, are necessarily wrong. The so-called dual-federalism double jeopardy, that prosecutions could be launched under separate state and federal laws for the same act and not be considered a violation of the Fifth Amendment ban on double jeopardy, remains valid law to this day. Brandeis also joined in Taft’s opinion in Carroll v. United States (1925), holding that police could, under probable circumstances, search a car without a warrant. Taft argued that whenever possible a warrant should be secured, but said that without any legal means to hold the car, it and any evidence it contained would be gone before the warrant would arrive. Although the Carroll doctrine has over the years been the subject of much criticism, it remains valid constitutional law. And, it should be noted, Brandeis wrote the opinion in Gambino v. United States (1927) that reinforced the exclusionary rule that is at the heart of the Fourth Amendment, holding that evidence illegally seized in a warrantless search cannot be used in federal court.
To describe Brandeis as an unquestioning supporter of prohibition in any and all forms misses the fact that while he supported the idea—perhaps even wrongheadedly and against his better judgment—he grew increasingly upset by the methods employed, especially the use of paid informants, or spies, by the federal government. The main source of the abuses could be found in the Federal Bureau of Investigation, headed by the notorious William J. Burns, former chief of a private detective agency. Under the sponsorship of Attorney General Harry M. Daugherty, the bureau had become a private snooping agency for all the corrupt forces within the Harding administration, and its agents collected or created evidence against critics of the administration. Calvin Coolidge fired Daugherty and asked his old friend from college Harlan Fiske Stone to become attorney general and clean up the mess. Stone found, as he later recalled, a “Bureau filled with men of bad records, and many of them had been convicted of crime. The organization was lawless, maintaining many activities which were without any authority in federal statutes, and engaging in many practices which were brutal and tyrannical in the extreme.” Brandeis spoke with Stone in October 1924, a few months after the latter had taken over at the Justice Department, and learned that while he had corrected many of the problems, much remained to do; agents could still be found working as spies and informants. Brandeis urged him to do more.
Brandeis also objected to industrial espionage, employers hiring spies to get information about union activists among their workers. If the spy system survived, he warned, “our ideals cannot survive. If I were dictator, I should abolish the system today without reserve.” He urged Herbert Croly to have the New Republic look into the abuses, and he wanted Frankfurter to put a student to work to find out what the Founding Fathers had thought about the use of secret political operatives. Thanks to his efforts, the Scripps-Howard newspapers put a reporter to work on the subject and published an eleven-part series in 1927. When Senator Burton Wheeler announced that he would investigate the espionage system, Brandeis suggested that for the moment Wheeler ignore private industry and focus on the abuses in the government, especially those tied to the enforcement of prohibition, as his prime concern. The justice considered it a major triumph when Congress finally struck out the appropriations that had been supporting informants for the enforcement of prohibition.
Brandeis had one opportunity on the Court to protest against the use of informants. Thomas J. Casey, a lawyer, had been convicted under the 1914 narcotics act, and while he was in prison, the warden suspected him of peddling morphine to his fellow prisoners. The warden set a trap, sold some drugs to Casey, and then filed additional charges against him. Casey protested that in being sold the drugs, he had not only been entrapped, but by government agents violating the law themselves.
Holmes, speaking for a 5–4 majority, dismissed the case and said the Court could not accept Casey’s view that the government had induced the crime; sufficient other evidence existed to make it likely that he had been selling drugs. McReynolds, Butler, Sanford, and Brandeis dissented. McReynolds denounced the government’s actions as conflicting “with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment.”
Brandeis went even further and declared that the entire prosecution “must fail because officers of the government instigated the commission of the alleged crime.” He then detailed how Casey had been entrapped—details left out of Holmes’s majority opinion—and denounced the government for its base role, noting that even “a desirable end cannot justify foul means.” Brandeis well understood that government often used informants to trap criminals and, while he may not have personally condoned the method, saw no legal objection. But for the informants—the spies—to have been government agents who, in order to capture Casey, had committed crimes themselves went beyond the pale. It enraged him, and his reasons can be found in the powerful dissent he wrote in still another prohibition case, Olmstead v. United States.
IN ORDER TO SERVE THEIR CLIENTS, bootleggers availed themselves of the latest technology, the automobile and the telephone. The mastermind of one operation, a Seattle policeman named Roy Olmstead, set up an elaborate telephone bank so purchasers could call in their orders and then arrange for delivery. Federal agents responded with a new technology of their own—wiretapping—essentially adding an extra phone set to the wires outside Olmstead’s office and listening in on his conversations. With this evidence they arrested and convicted Olmstead and his colleagues, who appealed on the basis that the evidence should not have been admitted because the police had failed to secure a warrant, thus violating the Fourth Amendment. The Court had already held that government agents could not search an office without a warrant, but the government responded that its men had never entered the premises. Since they gathered their information outside, they did not need a warrant.
Chief Justice Taft agreed with this argument, and for a slim majority wrote a formalistic decision that practically ignored the reasoning and intent behind the Fourth Amendment. There had been no actual entry, he declared, only the use of an enhanced sense of hearing, and to pay too much attention to “nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore.”
The Taft opinion elicited dissents from Butler, Holmes, and Brandeis, with Stone signing on to each of them. In a well-reasoned historical analysis, the generally conservative Butler repudiated Taft’s sterile interpretation of what the Fourth Amendment meant. Holmes, in a comment that soon caught the liberal imagination, condemned wiretapping as a “dirty business.” Holmes had not intended to write at all, since, as he said, “My brother Brandeis has given this case so exhaustive an examination,” but he did so for two reasons. First, Brandeis asked him to do so, and, second, he did not completely agree with all that Brandeis said.
Brandeis used his dissent to drive home several points. His general abhorrence of the methods used by prohibition agents is clear, and the reason for his antipathy is one that should be read every day by government officials, including presidents:
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 imperilled 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.
But Brandeis had another argument to make, one that he had been advocating for nearly four decades—the right to privacy. In his earlier article with Sam Warren, Brandeis had relied on private action and tort law, since the alleged violators of privacy had been the press and commercial actors. Now, because the government had been involved, he identified personal privacy as a matter of constitutional law, and married his earlier notion of the right to be let alone with the Fourth Amendment’s ban on unreasonable search and seizure and the Fifth Amendment’s protection against self-incrimination. To justify reading privacy into these amendments, he assigned his law clerk that term, Henry Friendly, to researching the circumstances surrounding the drafting of the Fourth Amendment. The case also shows how Brandeis expected his clerks to argue with him, and when they did make a convincing argument, he would listen. At first the justice wanted to base his dissent on the violation of a state statute, but Friendly convinced him that it must rest on a constitutional basis. The result is one of the landmark dissents in constitutional history.
Taft had emphasized that the Framers had nothing more in mind than the general warrants used by the British in the 1760s and 1770s, and the Fourth Amendment applied to little else. Brandeis cited Chief Justice Marshall’s reminder: “We must never forget that it is a constitution we are expounding.” Times had changed since 1791, and Brandeis cited case after case to show that the Court had constantly read constitutional provisions to take into account conditions never envisioned by the Framers. The technical nature of the entry did not matter as much as the intent of the amendment to protect people in their homes and businesses. “Time works changes, brings into existence new conditions and purposes. Subtle and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” (At this point Brandeis wanted to refer to a new device recently developed by the General Electric Company called television, but removed the note in deference to Friendly’s skepticism.)
He then went on to write one of the most eloquent—and most quoted—passages in American law:
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. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Brandeis dismissed Taft’s mechanistic view that no intrusion had occurred, since it did not matter where the actual physical connection with the telephone wires took place.
And it is also immaterial that the intrusion was in aid of law enforcement. 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.
In the Olmstead dissent Brandeis reinvented Fourth Amendment jurisprudence. Taft’s majority opinion, as well as prior search-and-seizure cases, had been grounded in conceptions of property, whether or not police had actually entered the home or business. Brandeis shifted the emphasis from where the alleged wrong took place to how it affected the individual. While Brandeis disliked the “dirty business” of wiretapping as much as Holmes, for him the more important issues were the conduct of the police and the individual’s right to be let alone. If the police had probable cause to suspect a person of wrongdoing, the Constitution required that a warrant be secured. Warrantless searches, except in very special circumstances, could not be allowed.
The chief justice reacted furiously to the dissents. “If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals,” he told his brother, “they are mistaken, even though we are condemned for lack of high ideals.” He believed that Brandeis had originally agreed to limit the discussion and had then gone off on ethical issues, and he termed Brandeis “the lawless member of the Court” for doing so. Holmes had written “the nastiest opinion,” and Taft claimed that Holmes had voted the other way “till Brandeis got after him and induced him to change.” But, he told Justice Sutherland, “I hope that ultimately it will be seen that we in the majority were right.”
Taft’s prediction proved wrong, although it took many years before Brandeis’s dissent became established as a constitutional right in Griswold v. Connecticut (1965). Brandeis did, however, live to see Congress prohibit wiretapping evidence in federal courts in the federal Communications Act of 1934 and the Court to partially reverse Olmstead in 1937. In 1967 the Supreme Court fully adopted Brandeis’s position and overturned Olmstead completely, bringing wiretapping within the ambit of Fourth Amendment protection. That same year, Justice Potter Stewart explained the Court’s new philosophy in words that grew directly out of Brandeis’s dissent: “The Fourth Amendment protects people, not places.” In a more recent case, Justice Antonin Scalia used the logic of Brandeis’s dissent to hold that federal agents could not use a new technology, thermal imaging, to look through the walls of Danny Lee Kyllo’s house to determine if the occupant was raising marijuana. Even though the agents used the machine outside the premises, they had secured information about the inside and could not use that evidence without a warrant.
Brandeis understood the role that dissent played in constitutional discourse, and in Olmstead he wanted the justices to talk not only about privacy and respect for the law but also about how the Due Process Clause of the Fourteenth Amendment should be interpreted. If nothing else, he told Frankfurter, reviewers of the opinion would see that “in favor of property the Constitution is liberally construed—in favor of liberty, strictly.” He especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states, a position that made Holmes uncomfortable, at least in regard to the Fourth and Fifth amendments. Brandeis had first planted this seed in Gilbert v. Minnesota (1920), and then, wittingly or not, McReynolds had advanced the cause in his two school opinions. Attorneys for the American Civil Liberties Union picked up on these cues and decided to challenge the traditional doctrine that the First Amendment did not apply to the states. Their opportunity came in Gitlow v. New York (1925).
BENJAMIN GITLOW, a leading figure in the American Communist Party, had been convicted under New York’s 1902 Criminal Anarchy Act for publishing a radical newspaper and other allegedly subversive materials. In a now familiar scenario, seven members of the Court sustained the conviction while Holmes and Brandeis dissented. What is interesting, however, is that Justice Sanford, without elaboration, announced, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” With this bare-bones statement, the Supreme Court for the first time put forward, as the majority view, what came to be known as the doctrine of incorporation, by which the Due Process Clause of the Fourteenth Amendment applied the liberties protected in the Bill of Rights to the states. This doctrine, begun in Brandeis’s Gilbert dissent, would be at the heart of the constitutional revolution that transformed American law after World War II.
Sanford’s opinion in Gitlow is not a knee-jerk reaction to radical ideas, such as McKenna’s was in Gilbert. It is a workmanlike product, and while we may no longer subscribe to its jurisprudence, he took the time to examine what Gitlow had said in the documents, and did not dismiss the American Civil Liberties Union argument about the First Amendment’s applying to the states; in fact he agreed with it. But ironically, he practiced what Brandeis and Holmes had called for in property and labor cases—deference to the legislative judgment. The New York legislature had determined that this type of speech fomented rebellion and violence. Sanford explored different types of speech and concluded that when a statute proscribed a class of speech that contained general advocacy of violence, the boundaries of free speech had been reached. Holmes in his dissent dismissed the speech as having no chance of inciting anything, and Sanford responded to it. He agreed that the state had presented no evidence that Gitlow’s speech would incite anyone, but that did not matter. The state had the power to define categories of expression that might provoke violence. The bad tendency of such speech justified the state’s restriction.
Like Sanford, Holmes utilized clear-and-present danger, but came to the conclusion that no danger existed. “It is said that this manifesto was more than a theory, it was an incitement. Every idea is an incitement [and] eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration.” As he told Frankfurter, “I gave an expiring kick (Brandeis was with me) in favor of the right to drool on the part of believers in the proletarian dictatorship.”
Holmes, however, did not deal with a critical question, namely, whether the Court should simply accept a legislative judgment that some types of speech were dangerous and could therefore be proscribed. There is no indication in his very brief dissent that the New York statute might be unconstitutional. He also did not address Sanford’s notion that the courts should accept legislative determination, a position Holmes and Brandeis had long held in economic cases. If a case concerned civil liberties, did that put it into a different category or give judges greater responsibilities? These questions would concern Brandeis in the next speech case to come to the Court.
IN THE MID-1920S two speech cases began making their way toward the Supreme Court. In both the petitioners had been accused and convicted of violating state laws restricting allegedly radical speech. Charles Ruthenberg was the son of immigrants, a lifelong radical arrested time and again for street demonstrations, and a national executive of the Communist Party. A Michigan court, acting under a state law that clearly met then-existing First Amendment guidelines, found Ruthenberg guilty of conspiring to “teach and advocate the doctrines of criminal syndicalism.” The Michigan Supreme Court upheld the verdict, and in January 1925 Ruthenberg began a term of between three and ten years. He had served only three weeks when Justice Brandeis granted his attorneys a writ of error allowing them to seek review of the conviction. Brandeis ordered that the writ would also operate as a supersedeas (an order delaying execution of the imprisonment pending review), allowing Ruthenberg to go free on a bail of $7,500. He got out in time to address the first annual Lenin memorial at Madison Square Garden in New York.
After oral argument in Ruthenberg v. Michigan, the justices met and decided the case. The facts, for all practical purposes, tracked those in Gitlow, and the lineup appeared to be identical, with Sanford utilizing the same bad-tendency test he had in the earlier case. Holmes and Brandeis would dissent, but this time Brandeis would write, and he planned to go much further than Holmes, not only in meeting Sanford’s argument, but also in establishing a jurisprudential framework for deciding First Amendment cases.
The justice and his law clerk, James Landis, worked for weeks on the dissent, and then on 3 March 1927 they opened the morning newspaper to discover that Ruthenberg had died the day before in a Chicago hospital of acute peritonitis. Within days the writ of error had been dismissed, and Brandeis consigned his draft to the files. Soon after he pulled it out, as the case of Charlotte Anita Whitney returned to the high court.
Socialist activist Charlotte Anita
Whitney, ca. 1928
A niece of former justice Stephen J. Field, Miss Whitney at the time of her arrest was described as a woman nearing sixty, a Wellesley graduate long known for her philanthropic work. She had been convicted under the California Criminal Syndicalism Act of 1919 for helping to organize the Communist Labor Party in the state. The law made it a felony to organize or to knowingly become a member of an organization founded to advocate the commission of crimes, sabotage, or acts of violence. Whitney denied that the communist group had ever intended to become an instrument of crime or violence, and the state offered no evidence at her trial that the party had ever engaged in violent acts. Nonetheless, the trial court found her guilty, and on appeal Justice Sanford, utilizing the bad-tendency test of Gitlow, upheld the conviction. The 1919 act clearly lay within the purview of the state legislature in its efforts to prevent the violent overthrow of society. The Due Process Clause did not protect one’s liberty to destroy the social and political order.
Because of technical issues, Brandeis chose to concur rather than dissent. He noted that the Court in this case lacked “the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court.” Because free-speech issues had not been raised at the trial, and since Whitney presented only due process and equal protection claims in her appeal, the Supreme Court could not reach the First Amendment grounds. But since the Court had not yet fixed a standard by which to determine when a danger shall be deemed as clear, Brandeis found it necessary to discuss the issue. His opinion, joined by Holmes, has never been seen as anything other than a protest against the Court’s restrictive interpretation of free speech.
Since he had first joined Holmes in the wartime cases eight years earlier, Brandeis had given a great deal of thought to speech and the necessity of protecting it in a free society. Holmes’s “marketplace of ideas” struck Brandeis as not going far enough to protect speech in a positive manner; surely the Framers had more in mind than simply letting people engage in rancorous debate. His thought, which has been described as republican “civic virtue” or “civic courage,” summed up his ideas not only on speech but also on the nature of democratic society, and in it he achieved an eloquence rarely matched in the annals of the Court.
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….
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…. 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, self-reliant 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. If there be time to expose 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. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
Although Brandeis paid lip service to the older clear-and-present-danger test, he in essence abandoned it in Whitney. Even the destruction of property, the bugaboo of conservatives, did not justify restricting speech; speech could be shut off only in the case where the social and political order itself faced imminent danger and no time existed to reason or debate. Otherwise, the cure for “bad” speech must be “good” speech.
But why should society put up with ideas it found offensive? For Brandeis the most important position in a democratic society belonged not to any elected or appointed official but to the individual citizen. Citizenship in a democracy conferred privileges but also carried responsibilities, especially the need to participate in debate over public policy. From the time he had been a local reformer, Brandeis had believed that no reform could succeed unless the people understood it and supported it. But citizens could not make informed judgments unless they understood all sides of an issue, and this meant that opposing speakers had to have the right to lay out their ideas, while the citizenry had the right to hear conflicting views. This included not just questions of whether a street railway should get a franchise or whether a state should establish savings bank life insurance but more fundamental questions about the nature of government and the economy. Brandeis never subscribed to any of the doctrines brought to the Court in the speech cases starting in 1919, but he thought that their merits or lack of merits had to be decided by people who could hear both sides of the question.
How did this differ from Holmes’s marketplace analogy? For Holmes the entire question was an abstraction, a means of philosophical inquiry; all his life he remained aloof from the political process, not even reading newspapers. For Brandeis, who devoured not only the daily news but also dry corporate and governmental reports, free speech and an informed citizenry had practical purposes. After the debate, the people could, through their elected representatives, translate these ideas into specific policies. Citizens had the civic duty to participate in politics, to deliberate important questions. Only in that way could the state provide conditions of freedom which were “the secret of happiness.”
Implicit in the opinion is a notion of civic virtue that derives from classical Greek theory, and in Whitney one can easily discern Brandeis’s long fascination with ancient Greece. The sentence “They believed liberty to be the secret of happiness and courage to be the secret of liberty” comes almost directly from Pericles, and much of the paragraph is fashioned after the Funeral Oration. There is a great idealism in this passage, a belief that if men and women can learn and make informed decisions, they can create a better society. However, it is not just idealism here but pragmatism as well. Political liberty is at best a fragile construct, and it will fail if citizens become inert.
Brandeis, like his colleagues, wanted to maintain public order. But whereas Sanford would allow the government to clamp down on any speech that had a “bad tendency,” Brandeis believed this policy would be counterproductive. “Those who won our independence,” he declared, “knew that order cannot be secured merely through fear of punishment.” It is not simply a “safety valve” that Brandeis talks about, the idea that if the state allows dissidents to let off steam they will do little harm. Rather, he wanted the debate, he wanted people with radical ideas to challenge the mainstream, to make people think about the values they cherished and not be complacent about them.
Throughout his life Brandeis always balanced his idealism with a sense of realism, and it would be wrong to think of him as naive. He did not assume that truth will always win out. He had spent years battling special interests and knew how successful demagogues could be. Rather, he chose to rely on reason as an alternative to the state’s silencing those with unpopular opinions. His innate faith in democracy demanded that one had to trust the people; they could make mistakes, but that was part of the price of freedom. Like Thomas Jefferson, whom he quoted in a footnote, he thought it would be better to trust the good judgment of the people than the consciences of judges.
Perhaps more than any other of his opinions, Brandeis’s Whitney concurrence has shaped American constitutional law, and its influence can be seen in the powerful First Amendment opinions later penned by Justices Hugo Black, William O. Douglas, William Brennan, and John Marshall Harlan II. Gradually, the Court abandoned Sanford’s bad-tendency standard and also moved away from Holmes’s clear-and-present-danger test until it adopted Brandeis’s notion of free speech in 1969. Debate about the reach of the First Amendment continues, such as whether it embraces only political discourse, or if it takes in other forms of expression such as commercial and artistic speech. But Whitney continues to be the touchstone, not only for the rationale it provides for the First Amendment, but also for the unusual eloquence of a man known for his detached, fact-laden, and lawyerly opinions.
THE GREATEST CRITICISM of Brandeis’s jurisprudence of the 1920s, by early-twenty-first-century standards, is his “remarkable indifference” to matters of race. While Brandeis did not author a single opinion dealing with racial issues in his twenty-three terms, he voted with the majority in every one of those cases, and according to one critic “Brandeis’s curious complacency on racial issues stands in dramatic contrast with the healthy enthusiasm and sense of perseverance he brought to bear on other causes he chose to champion.” It would be easy to condemn Brandeis as someone who never abandoned the southern prejudices against black people, while pointing to other southerners who spoke out for racial equality in the first half of the twentieth century. The record, however, is a bit more complex.
In the first major race case to be decided after his confirmation, Brandeis joined the unanimous opinion in Buchanan v. Warley (1917) striking down residential segregation ordinances in his home city of Louisville. A decade later, in another unanimous opinion, the Court struck down the Texas white primary law, but a few years later Brandeis was in the 5–4 majority voiding a state law delegating to the Democratic Party the power to exclude blacks from a state-run primary. He was in the majority in both Scottsboro cases that nullified convictions of black defendants secured in trials that could best be described as perversions of justice, as well as in Brown v. Mississippi (1936), which overturned murder convictions of black tenant farmers secured by torture. In 1938 he joined in Justice Stone’s opinion in United States v. Carolene Products Co., with its famous footnote 4 that laid the basis for the Court to begin a closer scrutiny of laws aimed at “discrete and insular minorities.” The Court decided its first modern civil rights case the following term when, with Brandeis again in the majority, it ordered the University of Missouri to admit an African-American to its law school. Two months later Brandeis resigned from the bench. All told, in nearly all the major cases involving African-Americans in which he took part, Brandeis and a majority of the Court upheld the black petitioners.
Asians fared poorly at the hands of the Taft Court, which ruled in several cases that Congress under the Constitution had plenary power over immigration and therefore could decide which immigrant groups it chose to grant or to deny citizenship. Brandeis agreed with this view (as did all the members of the Court), but he and they drew the line when an Asian claimed to be an American citizen. He spoke for a unanimous Court in 1922, ruling that immigration officers could not arbitrarily deport an Asian who claimed American citizenship, and had to provide an administrative hearing to determine the truth of that claim. Shortly after the Court accepted two cases involving Chinese merchants denied admission to the United States, Brandeis told Frankfurter that these matters should be taken up by the American Civil Liberties Union and that the Chinese consular officials should help their countrymen get better legal assistance in American courts.
For all that people called him a prophet, and for all that his ideas pointed the way in many areas of reform and law, Brandeis was a man of his times. That he did not always escape the restraints of those times may be regrettable to some, but it certainly does not prove bigotry. Surely there is some trace of his abolitionist background in his encouragement of Felix Frankfurter to work with the National Association for the Advancement of Colored People, and in his indirect aid to one of Frankfurter’s students, Nathan Margold, who in 1931 sketched out the litigation strategy that eventually led to the overthrow of legal segregation in Brown v. Board of Education (1954). Brandeis knew of this, and to some degree his subsidy to the Harvard Law professor helped underwrite Margold’s work.
Few black lawyers appeared before the Court during Brandeis’s tenure, and at the time most law schools did not accept black students. (There were a few, very few, at Harvard, and he wanted Frankfurter to encourage them to take cases for the NAACP.) Brandeis told Mordecai Johnson, the incoming president of Howard University in the late 1920s, “I can tell most of the time when I am reading a brief by a Negro attorney. You’ve got to get yourself a real faculty out there or you’re always going to have a fifth-rate law school. And it’s got to be a full-time and a day school.” Brandeis believed Howard could be a good law school, but only if they put energy and resources into it.
It is regrettable that he did not go further, that he did not become an ardent opponent of racial segregation, but he lived in a particular time and place in which such a stance would have been totally out of character with his views of how the Court should act. Perhaps the harshest indictment might be that he shared the attitude of most other progressive reformers, whose agenda did not include racial equality.
LOOKING BACK at Brandeis’s opinions, it is fair to say that no justice of the twentieth century had a greater impact on American constitutional jurisprudence. Historians now believe that the Reconstruction Congress intended the Fourteenth Amendment to apply the Bill of Rights to the states, but in 1920 neither scholars nor judges shared that view. 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 became bound by the same standards for individual liberties as the national government. While the Court applied the Speech and Press Clauses to the states during Brandeis’s tenure on the bench, the great “rights revolution” of the 1950s and 1960s also grew out of the seed he had planted.
Although a few scholars and judges continue to argue against the idea of a constitutional right to privacy, the vast majority of Americans agree with Brandeis’s assertion that the Framers intended to protect the right to be let alone. Brandeis’s warnings resonate powerfully as modern technology threatens to make public information that many people consider private. The dispute today is not whether a right to privacy exists but what its parameters are. Brandeis might not have agreed with the limits that some people propose, but he would certainly have approved of the debate.
Incorporation and privacy raised the level of rights that individuals enjoy, but his lasting contribution to democracy itself is the towering opinion he wrote in Whitney. Not only has it informed all discussions of free speech since, but it is also Brandeis’s view not only of how democracy works but, more important, of the role of the citizen in the polis. Democracy, he taught, is not easy, and for it to work, for it to continue to support a climate of freedom, individuals have to do the hard labor of learning, of debating, and of making informed decisions. That lesson, as he well understood, has to be taught anew in each generation.