The Right to Live, and Not Merely to Exist

Louis Brandeis, the advocate, reformer, and Supreme Court Justice, has been done a particular kind of disservice. He is still known as a great jurist; his writings on the First Amendment and privacy are exalted. But what Brandeis really cared about was the economic conditions under which life is lived, and the effects of the economy on one’s character and on the nation’s soul.

This book aspires to resurrect and try to renovate the lost tenets of the Brandeisian economic vision. It envisions a vigorous, healthy economy, a skepticism of the self-serving rhetoric projecting the romance of big business or the inevitability of monopoly, and, above all, a sensitivity to human ends. Brandeis took matters like bigness and concentration as inseparable from the very nature of democracy, and the conditions under which its citizens would live. They determined what kind of country we would live in and what kind of environment that country would provide for its citizens.

Louis Brandeis was born in 1856, in the mid-sized town of Louisville, Kentucky, the son of entrepreneurial immigrants. As is probably true of most of us but is easier to see in Brandeis, these early years would have an important influence over what he thought an economy should ideally look like in a democracy.

His father, Adolph, was born in Prague, to a middle-class family. Adolph decided to take his chances in the Midwest at what was then the American frontier. He was not a particularly good farmer, but found greater success as a grain merchant in Kentucky, and grew to be a prosperous small-business owner. Brandeis’s mother Frederika, the daughter of a Polish court physician, was a devotee of eighteenth-century German authors like Friedrich Schiller and Johann Wolfgang von Goethe, and a moralist who pushed her children to develop “a pure spirit and the highest ideals as to morals and love.”

The town of Louisville would figure essentially in what Brandeis would come to stand for. Louisville was no world capital, nor the seat of any corporate empire, but nonetheless a flourishing regional center, in a United States far more economically decentralized than today’s. It was, economically speaking, dominated by no few large concerns but a multitude of small producers. While the state still suffered the curse of agricultural slavery, Louisville was, at least to Brandeis, an “idyllic” place, one free from the “curse of bigness,” representing an “economic democracy”—that is, a place of industrial freedom and openness to competition, yet with an economy that yielded adequate spoils for all. “Louisville [during his youth]” writes Brandeis biographer Melvin Urofsky, “seemed the quintessential democratic society, in which individuals, like his father and Mr. Crawford, could do well by dint of their intelligence and perseverance. There were no large factories employing thousands of people, but rather many small endeavors—farms, stores, professional offices. People knew one another, their lives entwined in a strong sense of community.”

After high school, Brandeis studied in Germany, achieved famously high grades at Harvard Law School, and developed a passion for canoeing and horseback riding. He decided to make his career in Boston, built a distinguished legal practice, and might have otherwise lived a completely uneventful life had he not been stirred into politics and action by his outrage to that which was happening around him. For in the 1890s, by the time he reached his forties, the Trust movement had begun its full march on the American economy, acquiring and demolishing smaller businesses and independents right and left. Many of Brandeis’s clients were small-business owners with whom he had a personal relationship. They became the targets of the economic eugenics movement, seen as too unfit to deserve industrial life. In his resistance to the Trust movement, which at times he seemed to compare to a pogrom, Brandeis gained his identity and formulated the principles of economic decentralization that are now his legacy.

Brandeis’s views crystalized during a battle with a tributary of the Morgan empire. Among Morgan’s many projects was the consolidation of the Northeastern rail and ferry transportation into one monopoly—the New Haven Railroad. Morgan and his anointed lieutenant, Charles Mellen, sought to combine some 336 firms, including Boston’s local railroad, the Boston and Maine, to forge a new system. Brandeis would become the monopolization campaign’s leading public opponent.

Brandeis, who was a business lawyer by trade, and did insurance work in his earlier years, was hardly unsympathetic to the role business played in society. He was happy to praise good businesses that grew organically and built dignified operations beloved by customers and partners—the model provided by his own father. But during his fight with Morgan and the New Haven railroad, he developed a distrust, even a disgust with the new class of corporate monopoly. For behind the happy talk and big promises, his own investigations suggested that the New Haven was building its monopoly by lying to investors, bribing politicians, and paying off journalists and professors. “Lying and sneaking are always bad, no matter what the ends” said Brandeis later, privately. “I don’t care about punishing crime, but I am implacable in maintaining standards.”

Over time, he came to believe the New Haven represented the evils of what he called “excessive bigness.” As he put it, “the evils of excessive bigness are something distinct from and additional to the evils of monopoly. A business may be too big to be efficient without being a monopoly; and it may be a monopoly and yet (so far as concerns size) may be well within the limits of efficiency. Unfortunately, the so-called New Haven system suffers from both excessive bigness and from monopoly.”

But Brandeis’s opposition to the New Haven monopolization campaign was, at first, a failure. He was just one man against Morgan and his resources—and Mellen, a charismatic charmer, who won over the press and locals by promising New England “progress and prosperity.” As for Brandeis, Mellen discounted him this way: “Yellow dogs will bark and snap at the wheels of progress as they have since the beginning of time. Men will come and go, but the system of transportation has been built up to endure.” But Brandeis knew the New Haven had, in fact, been built on a house of cards. As with many mega-mergers, organizational chaos soon followed the consolidation. Morgan’s aggressive firing of workers and other cost-cutting measures were necessary to generate returns promised to shareholders, but they led to wrecks, derailments, and delays. There were 24 deaths and 105 injuries in 1911 alone. As the railroad fell into decline, the press began to turn on the New Haven and Morgan. One newspaper owner wrote: “Mr. Morgan holds the gun of monopoly at the head of business, and business, as a rule, prefers to give up its money and preserve its life.”

The chaos prompted new investigations, and in 1913 the Federal Interstate Commerce Commission unearthed evidence of serious accounting fraud and illicit payouts in the monopolization drive. As the Commission wrote, the consolidation campaign had “meant the reckless and scandalous expenditure of money; it meant the attempt to control public opinion; corruption of government; the attempt to pervert the political and economic instincts of the people in insolent defiance of law.” The Justice Department threatened an antitrust lawsuit in 1914 and the New Haven was broke, dissolved back into its major pieces.

Through the New Haven experience, Brandeis discovered a stronger faith in decentralized systems, in the organic growth of business, and, for want of a better word, in “smallness.” He prized, indeed lionized, the human scale that had been the trademark of business and farming in America. Despite the bold promises of men like Mellen and Morgan, Brandeis feared that the new trusts being crafted by combining entire industries were not really the progress that was promised. Instead, he watched them exterminate other businesses, mistreat workers, defraud investors, and, especially in the case of the New Haven, actually hide gross inefficiencies with their size—all in the service of profits for bankers and speculators. He feared that as the corporations became large and powerful, they took on a life of their own, becoming increasingly insensitive to humanity’s wants and fears. He put it this way in 1911: “We are in a position, after the experience of the last twenty years, to state two things: In the first place, that a corporation may well be too large to be the most efficient instrument of production and of distribution, and, in the second place, whether it has exceeded the point of greatest economic efficiency or not, it may be too large to be tolerated among the people who desire to be free.”

If pre-industrial Louisville represented Brandeis’s idea of what a democracy and economy might look like structurally, we can also gain from his later writings some idea of what Brandeis thought a democratic economy was for. Nowadays, we may think that the economy serves to make us rich, or at least to pay the bills. Democracy, meanwhile, is about voting for a government that reflects our preferences.

Brandeis demanded more from the economy and democracy. For him, the very purpose of life was the building of good character and the development of self. The “ideal” of democracy, he once said, should be “the development of the individual for his own and the common good.” He was in accord with the position taken by contemporary philosopher Wilhelm Von Humboldt, who wrote that “the true end of man, or that which is prescribed by the eternal or immutable dictates of reason … is the highest and most harmonious development of his powers to a complete and consistent whole.”*

That view had important implications for what the nation and its laws should look like. A worthy nation was one that served as cauldron for character and self-development, one that “compels us to strive for the development of the individual.” Importantly, Brandeis didn’t think that such personal growth was something that just happened: He believed that it required the right conditions. As he said: “The ‘right to life’ guaranteed by our Constitution” should be understood as “the right to live, and not merely to exist. In order to live men must have the opportunity of developing their faculties; and they must live under conditions in which their faculties may develop naturally and healthily.”

A good country and a good economy, therefore, would be one that provided to everybody sufficient liberties and adequate support to live meaningful, fulfilling lives. He thought the American founders had understood this, that “[t]hey 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.” Hence a worthy nation should protect men and women from any forces, public or private, that might stifle the opportunities for thriving and life. That would include, of course, government censorship and oppression—hence the importance of free speech, free association, and other liberties. But it also meant freedom from industrial domination, exploitation, or so much economic insecurity that one could not really live without fear of unemployment and poverty. “Men are not free,” he wrote, “if dependent industrially on the arbitrary will of another.” Economic security was a foundation on which one could really be free in a meaningful sense—hence the importance of steady but not oppressive work, of education, time and space for leisure, parks, libraries, and other institutions.

What Brandeis noticed is something we often ignore. We like to speak of freedoms in the abstract, but for most people, a sense of autonomy is more influenced by private forces and economic structure than by government. For many if not most people, the conditions of work determine how much of life is lived—such basic matters as the length of hours worked, the threat of being fired, harassment or mistreatment by a boss, and for some jobs, questions as fundamental as personal safety or access to a bathroom. Beyond work, our daily lives are shaped profoundly by economic matters like rent, access to transportation or groceries, and health insurance, even more so than any abstract freedoms. That is why Brandeis saw real freedom as freedom from both public and private coercion.*

Brandeis saw an economy dominated by giant corporations as tending to a certain inhumanity. He feared that working in a giant corporation might rob the American people of their character: “far more serious than even the suppression of competition is the suppression of industrial liberty, indeed of manhood itself.” He grew to detest the growing American culture of overwork, whether self-inflicted, as in the private lawyer’s case, or more menacingly, in the growing class of large firms who worked their employees past the limits of human endurance. As he once wrote of the oppressive conditions and long hours at the new industrial firms, they threatened to create “a life so inhuman as to make our former Negro slavery infinitely preferable.”

Instead what Brandeis really believed was that business could be a high calling and that a good career was one that created the conditions for human thriving. He thought for most people, a truly successful career consisted in developing a skill or a craft, or building a good business, and practicing as best one could, while aspiring to live by high principles in both personal and business affairs. That was the path to career happiness, yet was too often forgotten by those trying to gain an advantage or making the grave error of taking income or wealth as the measure of success. “A large income is the ordinary incident of success” he wrote “but he who exaggerates the value of the incident is apt to fail of real success.” Instead, the honorable professions “select as their test, excellence of performance in the broadest sense—and include, among other things, advance in the particular occupation and service to the community.…”

How did Brandeis’s principles manifest themselves more broadly, as economic policy? Brandeis took the view that government’s highest role lay in the protection of human liberty and the provision of securities consistent with human thriving. That meant a commitment to civil liberties, like rights of free speech and privacy, protected by the courts. But it also meant a commitment to the protection of workers, and an open economy composed of smaller firms—along with measures to break or limit the power of monopolies.

Hence, if the antitrust laws might decentralize the economy, so much the better. If other laws might do the same, that was good, too. Beyond that, Brandeis thought there should be no business exception for ethics, but that government should punish those who used abusive, oppressive, or unconscionable business methods to succeed. That’s why some of his greatest ire was reserved for abusive consolidation campaigns that offended both his sense of ethics and economics, where businesses were forced into sales to avoid being bankrupted or destroyed by a powerful rival.

On the positive side Brandeis was an advocate of measures designed to make life worth living, or foster a republic of good character and true citizenry. That meant good public education, steady but not outrageous work hours, pensions for the aged, and sufficient time for leisure and study. He wanted child labor to be banned, and the imposition of maximum work hours for others. In short, he wanted the nation to be a place with room for citizens to thrive, not merely to survive.

We have now some general, though incomplete idea of Brandeis’ life and ideals.* Politically, he does not easily fit into contemporary categories. He worked as an advocate for business and business groups, yet also supported unions in their struggle with large employees, and believed that workers should fight for constant work and their fair share of the economic returns. He distrusted big government almost as much as big business, especially at the federal level, but felt that antitrust laws needed to be vigorously enforced. If he had a unifying principle, politically and economically, it is what we have said: that concentrated power in any form is dangerous, that institutions should be built to human scale, and society should pursue human ends. Every institution, public and private, runs the risks of taking on a life of its own, putting its own interests above those of the humans it was supposedly created to serve.

Brandeis’s importance lies in his lasting vision of what an economy should be for. But while he fought the good fight, particularly against large mergers, the credit for actually activating the antitrust laws belongs elsewhere. In particular, it belongs to the man who would soon use the antitrust laws as his big stick.

*His lofty ideals may make Brandeis sound like some kind of demigod walking the earth, but he was not without defects. The small businesses he praised were, after all, often his clients. And while warm and loving to his family members, he appears to have been a distant and aloof figure who had a way of making others feel inadequate in his presence, particularly in his later years. The jurist Learned Hand recalls his meetings with Brandeis this way: “I used to leave him [Brandeis] feeling [of myself], ‘You are a self-indulgent, inadequate person.’ … You sit around and talk a good deal, haven’t any very definite convictions. You’re not spending your life trying to leave the world better for being in it. You like to drink too much.”

*An insensitivity to private intrusions on human freedom is a major blind spot for contemporary libertarianism, which is rightly concerned with government overreach but bizarrely tolerant of mistreatment or abuse committed by so-called private actors.

*Brandeis is not without his critics. Historian Thomas McCraw took his best shot at Brandeis in his book Prophets of Regulation (1984), portraying him as too rigid and unwilling to accept the potential for efficiency and consumer benefits in new, giant businesses being built. Unfortunately, McCraw makes several basic errors in his attack, like confusing horizontal price-fixing with retail price maintenance. And McCraw seems to have misunderstood the role of a public advocate: Brandeis was fighting against a well-funded campaign to transform the American economy based on what he believed to be a false narrative of progress. What McCraw calls rigidity can also be called principle; what has sustained interest in Brandeis for so long is his adherence to ideals in a manner that transcended day-to-day politics, without being so removed as to be irrelevant.