CHARLES L. WYZANSKI, JR., who was appointed to the U.S. District Court of Massachusetts in 1941, is imbued with a strong sense of the continuity of the law. Following his graduation from the Harvard Law School, he served as secretary to Judge Augustus N. Hand and Judge Learned Hand. He became an ardent, though not always uncritical, admirer of Justice Brandeis. On this the 100th Anniversary of Brandeis’s birth, it is appropriate to be reminded that in his influence upon American law Justice Brandeis comes second only to John Marshall.



ON NOVEMBER 13, 1856, in Louisville, Kentucky, was born Louis Dombilz Brandeis, who can be fairly claimed to rank in influence upon American law second only to John Marshall. He was not the philosopher-poet that Holmes was; nor had he the range of scholarship or the purity of detachment which characterized Cardozo; and he was without the magisterial command that Hughes so magnificently embodied. Yet, even in company with those giants, Brandeis made the second long stride which gave American law a pace distinctive from, if responsive to, English jurisprudence.

John Marshall showed what judges could draw from a written constitution to support the ancient doctrines of government under law. L. D. Brandeis demonstrated, first at the bar and then on the bench, that legislative history and the legislators’ avowed concern with economics, social policy, and statistical science could furnish not merely the inarticulate premises but the express grounds of judicial opinion.

From 1916 to 1939, when Brandeis served as a Justice of the Supreme Court of the United States, any visitor to the Court would have been struck by his presence. Much was attributable to his countenance, Lincolnian in its benevolent sympathy and austere beauty. Something was due to the electric shock of his white hair, unforgettably sculpted by Eleanor Platt. And then, as Brandeis talked, the soft Southern voice, so persuasive in its appeal to reason, so simple in its choice of words, so moral in its undertones, moved the auditor even more perhaps than the majestic utterances of Chief Justice Hughes, the vigorous clarity of Justice Roberts, and the urbane gentility of Justice Sutherland.

On the bench in front, of Justice Brandeis, but not before any other judge, was crooked a gooseneck lamp, obviously lacking the ornate resplendence of standard judicial equipment. Its immediate purpose was severely utilitarian — for none followed more closely and with less interruption the argument and page references of counsel at the bar. But may it not also have been a symbol to notify the stranger that although the Court had been moved into a palace of justice over Brandeis’s protest, L.D.B. had a distaste for ostentation?

Were you to see the Justice in his home, there you would find no display of wealth or elegance. He himself would probably be wearing the dark blue serge suit that annually he bought by mail from Filenc’s Boston store. If he were in his apartment at Florence Court, the furniture would be typified by a green sofa with a long stiff back which perhaps began its career in a shipment from a Victorian store to Otis Place in Boston. On the wall was a photographic reproduction of the statue of Venus do Milo. If you were allowed to go a floor above, to his crowded study, the surrounding books were law reports from the federal and Massachusetts courts, and a collection of albums filled with clippings reporting Brandeis’s cases as an advocate and his championship as “the people’s lawyer” of controversies before court, commission, and Congress in the first decade and a half of the twentieth century.

Perhaps, if your intimacy with the Justice reached back into those earlier days, and even more probably if you shared his concern with the aims of Zionism, you might be invited to the Justice’s summer cottage at Chatham for an hour’s visit strictly clocked by Mrs. Brandeis. If possible, there were even fewer signs of luxury there than on California Street in Washington. Some books were placed not on shelves but in packing cases. And on the wall were framed not famous etchings or impressionist paintings but something far more revealing: a legal instrument — a contract executed several decades before in which Mr. Brandeis agreed to pay to each of his daughters an allowance of five cents each week and they in turn agreed to polish his shoes, all on the understanding that “there are no catchwords in this contract.”

Whether you came to his home on the Cape or in the District of Columbia, you would meet (mixed with the famous — the Senators, the wife of the President, the heads of executive agencies) a number of both men and women who were engaged in tasks that, though they might not be newsworthy, had a critical importance in the civic and cultural life of the nation: the librarian of the Labor Department; a manufacturer of tags who, before the congressional social-security legislation, had tried an unemployment compensation system in his own plant; the associate editor of the Encyclopedia of Social Sciences; the chief economist of the Department of Agriculture; the most original mind on the staff of the Interstate Commerce Commission; a New York magazine writer who sought to interest a larger public in the intricacies of governmental bureaus; a young lawyer representing New England textile interests; a publisher of pocket books; an expositor of the growth of savings-bank life insurance; a member of a Jewish charitable association’s board; an associate counsel of an international intergovernmental organization; the secretary of the chairman of the Senate Committee on Finance; the president of the Seaman’s Union; a young professor from the Harvard Law School; a statistician from a Wisconsin public utility commission.

The Justice would take aside visitors, one or two at a time, and ask them on what they were working and what had struck them as interesting. From the judge would come a word of encouragement to pursue the investigation of the causes of an alleged evil, or to remain in the small office in a Southeastern community, or further to consider a particular administrative or legislative problem. Sometimes the judge would broach a topic in which he thought his guest would have interest, and then would find the response unexpectedly negative. Once, for example, he spoke to me of the development of small village community life in Palestine. It took no extensive plumbing to find me completely ignorant. The Justice said nothing. But some days later I found in my morning’s mail a set of pamphlets on Palestine, all rolled in a slit plain envelope with no identification beyond the familiar strong, straight handwriting of L.D.B.

It was by hand that all his correspondence and his opinions were written after he went to Washington. He gave up all stenographic assistance and never used as substitutes dictating machines or even, to any extent, a typewriter. But he did have one curiously expensive habit. In preparing an opinion as a Justice of the Court he regularly sent many rough drafts to the Court printer, and then worked from galleys as other lawyers would work from typewritten drafts. Sometimes, as in his celebrated dissent in the O’Fallon case, he dispatched perhaps more than a score of versions of his opinion to the printer’s shop on Twelfth Street before he was satisfied with the product. A reason for this extraordinary use of printed rather than typewritten copies may have been that only when a document appeared to him as he thought it would appear to a reader was he able to judge its quality. But whatever the reason, the result was as striking stylistically as it was substantively.

The process of constant revision, rearrangement of ideas, and reshuffling of paragraphs and sentences made the final opinion in each sense of the word highly “articulate.’ The text had an organic tightness that did not rely for its clear relationships merely on enumeration of separate sections of the text. Footnotes were arrayed with a compelling completeness of supporting authority. And the several points raised by counsel or by other judges were comprehensively answered. To a sensitive, strictly literary taste, the style might seem gaunt. But this criticism must be taken as praise, not blame, by anyone who regards as a test of prose its faithful reflection of the mental and moral standards of the author.


THUS Brandeis emphasized the special responsibility which falls upon a judge of our highest court to contribute in its deepest sense to the political growth of the American people. From the time of Chief Justice Marshall, the opinions of the Supreme Court have been a text unto the people. Read in the daily press, studied in the common school, knotted into the rope of enduring history, they may well be the largest single contribution to the philosophy of the American way of life. Conscious of this aspect of his office. Brandeis shaped his opinions not merely as judge but as teacher. No one who has digested his judicial opinions will be surprised at the tale told by one of his most distinguished law clerks. Professor Paul A. Freund of the Harvard Law School. Brandeis had been assigned a case to write for the Court. After he had analyzed the facts, derived the principles to guide the conclusion, and achieved his judgment, Brandeis was not yet content to utter the opinion. For he was still inquiring of his law clerk, “What can we do to make it more instructive?”

Unike so many leaders in his profession, Brandeis almost never wrote memorial tributes or similar biographical essays which in form purport to sketch the character of other lawyers and judges, but which so often in substance become revelations of the aspirations and accomplishments of the author, rather than of the subject. Once, and in a manner unforgettable to anyone who has read this now difticult-to-procure record, Brandeis came close to painting the sort of double-mirror portrait of which I am speaking. I allude to the magisterial summary of the character of Louis R. Glavis which, as his counsel, Mr. Brandeis gave to the Congressional Joint Committee to Investigate the Interior Departmeat and Forestry Service, conducting the so-called Ballinger investigation. Does Brandeis describe himself or Glavis when he tells us of the four cardinal virtues of a witness — power of observation, perfection of memory, clarity of expression, and ability to envisage the whole situation into which his testimony fits? And is there a more thoughtful defense of Brandeis’s own professional career, or for that matter a more pertinent tract for the present times, than the argument offered Congress in support of the concept of loyalty exhibited by Glavis and by Ballinger’s stenographer, Frederick M. Kerby?

One issue which perplexed the investigating Congressmen, the wider public, and not least Brandeis s fellow counsel in the case was whether there rested a moral duty of disclosure upon a subordinate in the Civil Service who had discovered what he thought were departures from principle by his superior officer. In Glavis’s case the subordinate believed that his chief, Secretary Ballinger, was surrendering portions of the public domain to private rapacity. The stenographer Kerby knew from the letters he had transcribed that Secretary Ballinger, Attorney General Wickersham, and President Taft had misled the Congressional Committee as to the chronological order in which documents had been prepared, and thus had altered their import and value. What was the duty of Glavis and Kerby under these circumstances? How far, and to whom, were they warranted in becoming informers? Was there an overriding obligation to individuals with whom one had been confidentially associated? Could this conflict of attachments be resolved by a profounder understanding of the principle of loyalty?

Whether or not we accept it as valid, the answer Brandeis fashioned states with admirable clarity one viewpoint: —

The danger in America is not of insubordination, but it is of too complacent obedience to the will of superiors. With this great Government building up, ever creating new functions . . . the one thing we need is men in subordinate places who will think for themselves and who will think and act in full recognition of their obligations as part of the governing body. . . . We want every man in the Service . . . to recognize that he is part of the governing body, and that on him rests responsibility within the limits of his employment just as much as upon the man on top . . . they cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues — the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticisms, of the willingness to risk the misunderstandings that so often come when people do the heroic thing.

These are so plainly the virtues which Mr. Brandeis himself possessed, and they are so excellent a definition of the independent man, that I shall devote the remainder of this paper first to a canvass of the leading themes with which his name is indelibly associated, and then to an appreciative critique of his personal way of life. It is not an exaggeration to say that like Franklin, Washington, Jefferson, Hamilton, Lincoln, and Holmes, Brandeis has become for many men much more than a hero in American narrative history. He has become a symbol of particular threads woven into the enduring pattern of American life. He has become the embodiment of the independent man, the inner-directed man of rational bent and moral integration.


THE overriding problem of the independent man living in Brandeis’s age and ours is the reconciliation of his essential spiritual nature with the powerful forces of an expanding industrial society, a society proceeding at unprecedented speed to produce novel instrumentalities, to spread geographically, to reach new levels of population, to concentrate into fewer hands vast administrative power, and to standardize both information and criteria of judgment so that they may be digested by the mass of men possessing a minimum of bite and taste.

Concern over the relationship between the individual and the mass is, of course, a topic with a longer history than the twentieth century. And even the accentuated phases of this problem which are attributable to the accelerated technological advance since the Victorian era have a bibliography of inordinate length. So Brandeis would claim no patent for his discovery of the central illness of his time. Nor would he, I am sure, suggest he deserved credit for diagnosing as one of the chief causes “the curse of bigness.”

The Brandeis program can be conveniently analyzed under his treatment of public power and private power. One advantage of this procedure is that it reveals that the Brandeis opposition to bigness, while always an important criterion, was never an exclusive one, at least where what was at stake was public or governmental power.

For more than a century and a half, or since the overthrow of the yoke of what was regarded as British tyranny, American political science had been keyed to the task of preventing oppressive government. According to the schoolbook version, the devices chiefly relied upon were the federal structure of our Union, the tripartite division of the government into executive, legislative, and judicial branches, judicial review of arbitrary official action, a bill of rights, and representative government.

Our federal structure was an historical consequence of a victorious Revolutionary War consolidating the foreign, commercial, and fiscal interests of diverse colonies accustomed to a large measure of self-determination. The pressures which produced our United States Constitution established a framework which promptly excited widespread admiration. It is unnecessary to recite the degree to which parts of the then British Empire copied our Constitution, or to repeat the panegyric which we received from the most celebrated historian of liberty, Lord Acton. For him the pluralistic structure of the United States, contrasted with the unitary administration of the French Republic, represented our distinctive contribution to the principle of political freedom.

As a judge, Mr. Justice Brandeis often had occasion to show his allegiance to the federal principle. In the cast’s where progressive legislation of local governments was assailed, he frequently resisted the attack by resorting to the principle that our Constitution protected the right of experimentation in the insulated chambers drawn by state boundary lines. Yet it would be naïve to assert that that principle, of which Mr. Justice Holmes was an even more ardent champion, remained with either of them as indexible dogma, especially when the coin was reversed and Congress sought to legislate in areas theretofore local. Brandeis, despite occasional votes, as in Schechter Corporation v. United States, declaring unconstitutional the National Industrial Recovery Act, was almost always the upholder of, sometimes even the instigator of, that expansion of central governmental power whose growth seems to the critical eye to have made the present United States an increasingly unitary power. This admittedly strong statement I believe can be supported by noting the role of Brandeis in fostering the furthest reaches of congressional taxing and spending power, as well as in the interpretation he gave to the commerce power and the war power, and his refusal to find more than a precatory injunction in the Tenth Amendment.

May I, as a dramatic example, state from personal knowledge his obscure though decisive role in the initiation of our federal-state unemployment compensation system? For now after two decades the tale has moved from the realm of gossip into the realm of history. It was in his apartment that his non-lawyer daughter, in his absence, made the highly legalistic suggestion of a new federal excise tax, modeled on the federal estate tax, with a credit to the taxpayer of amounts paid by the taxpayer to state unemployment compensation systems to be created under state law. Whatever may be said of the constitutionality of the plan — and on this point I am free from doubt, as was the majority of the Supreme Court in 1937 — and whatever may be said of the degree to which the plan preserved opportunities for local administration and for minor variations in local substantive policy, the plan effectuated a marked increase in the relative degree of national control in our federal system.

But the support which social security received was only symptomatic of what appears to me to be the unmistakable trend of other Brandeis decisions, He always regarded as virtually absolute, aside from issues of due process, the grants to Congress of power to tax, to spend, to regulate commerce, and to declare and carry on war. To be sure, he sometimes privately urged that these national powers should be used to supply moneys information, or legal backing for state laws. But whether this advice was followed or not, the political result, achieved mainly during his time on the Supreme Court, was to aggrandize the central power.

Likewise, so far as concerns adherence to the hornbook principle of ‟separation of powers,” the impact of the decisions during the Brandeis period was hardly in the spirit of the American founding fathers. As an advocate before the Interstate Commerce Commission, as a sponsor of a bill ultimately merged in the Clayton Act to establish the Federal Trade Commission, and as a judge interpreting regulatory New Deal legislation, Brandeis is properly regarded as one of the architects of our modern system of administrative agencies, which commonly combine some subsidiary executive, legislative, and judicial powers.

So that I may not be misunderstood, let me make explicit that I am not on this score altacking Brandeis. I happen to share his viewpoint. But I recognize, as I am sure he did, that he participated in a most significant increase in public power in the direction of bigness and contrary to individual initiative. He acquiesced in the conversion of government from a largely negative role in combating force and fraud into an affirmative instrument, moving in novel ways, to establish for private persons, corporations, and industries approved patterns of minimum conduct, sometimes appealingly called “fair” conduct.


HOWEVER, if the swelling of the Washington bureaucracy owes something to a favorable wind blown from Brandeis’s quarter, he was at the same time most active among those who reduced the pretensions of the Supreme Court to be a superlegislature. His strict avoidance (with one conspicuous exception in Erie Railroad Co. v. Tompkins) of unnecessary constitutional issues has become legendary. He had an admirable judicial tolerance toward legislation which in his private capacity he disliked. Witness the ironical fact that one of the dissents with which his name will always be associated was in New State Ice Co. v. Liebmann, where he voted to uphold a legislative grant of an ice monopoly of which he might not have approved as a voter.

Even in the field of civil liberties — where the celebrated letter of March 15, 1789, from Ambassador Thomas Jefferson to Congressman James Madison suggests that the Supreme Court of the United States was intended to have a more liberal veto than it had exerted over economic, commercial, or like legislation — Justice Brandeis exercised his judicial negative with restraint. Examined closely, the Brandeis opinions in this field are more often directed at improvement of judicial procedure, at the establishment of safeguards against the reception of tainted evidence, at scrutiny of the precise facts of record, and at cautious interpretation of the legislative command, than they are at invalidation of deliberate legislative choices as to repressive measures.

This was thoroughly consistent with the Justice’s deep belief in responsible, representative government. He had no illusion as to his personal omniscience. His tendency was to adopt those courses which gave opportunity for legislators, or administrators, or lower courts to speak more clearly. What he strove to do was to make others examine difficult problems as carefully as he did, so that before final action they would inform the judgments for which they justly bore responsibility. Indeed this is why time and again he will be found supporting investigatory powers, disclosure statutes, and even private group action aiming at a wider dissemination of basic statistical material.

If, as I have suggested, the program in which Justice Brandeis at least acquiesced strengthened during his lifetime the forces of public power and of bigness in government, the record is quite the reverse in the field of private power.

Monopoly, and even bigness which fell short of monopoly, he consistently opposed for practical considerations which he believed experience had taught. He thought men were so inherently limited that they could not intelligently command large enterprises with mastery of detail and economy of operation. He was skeptical of vast concentration of power not because it was inevitably wicked but because he thought it tended to be slothful, unimaginative, and unresponsive to the needs of the market, the problems of the worker, and the claims of the investor. More than the likelihood of corruption, the certainty of capriciousness in large enterprise was w hat Brandeis feared.

With this outlook, there are many who agree not least Mr. Justice Douglas, who, to the expressed delight of Mr. Justice Brandeis, became his successor on the Supreme Court of the United States. But it is doubtful whether on the extreme limits (as distinguished from the main trend) of this issue Brandeis can ever get on his side more than a sharply divided vote.

To a large extent, bigness in the modern world seems inevitable unless we are prepared to emulate Switzerland or a Scandinavian country. Our high standards of consumption at relatively low cost are in large part the result of mass production, as we are every day reminded by the automobile and the household gadgets which lighten the housewife’s toil. Our military security at the moment rests chiefly on the products of nuclear fission coming from enterprises on a scale so mammoth that only one or two nations can undertake similar establishments.

Those who disagree with Brandeis argue that the evils he discerned are not peculiar to bigness, and are not curable by a planned program of dispersal of power. What the opponents assert is that there are two sounder methods of dealing with the dangers of which Brandeis spoke.

The first is the less important and, to the uncommitted mind, the less warranted by the evidence of experience. It is the promotion of countervailing forces operating exclusively in the economic realm. They are composed, first, of the rival giants in the same area of business; and second, of the giants in those fields of supply, labor, and consumption directly tangent to the first area.

If there can be achieved such a desired resolution of forces operating in the economic realm, then one fortunate by-product of bigness in private enterprise will be the balance which vast establishments of private power are able to exert on the even more vast domain of public power. Our generation has learned what history never before taught so clearly: that public power, even when nominally executing programs for the common man and the social interest, is not always to be trusted with total authority. Absoluteness always becomes arbitrariness. If we are to have a government constantly promoting the general welfare and not the selfish interest of a dictator or of an administrative class of civil servants, it is not sufficient to rely on verbal constitutional limitations, nor on automatic checks internal to our mighty Leviathan. Only if private forces are also of considerable moment and have the courage that comes from independent power can we avoid the capriciousness inevitable in unmitigated totalitarianism.

The second method for dealing with bigness which is advanced by those who dissent from Brandeis’s view has an element of paradox, but is nonetheless, I believe, persuasive. The dissenters say, “Justice Brandeis, we agree with you that power and bigness are heavily freighted with risk. Grave dangers there are of abuse, arbitrariness, selfishness, corruption, inefficiency, loss of nerve, staleness, and dull inertia. But, sir, these are not dangers peculiar to bigness, and are not cured solely by competition. You, sir, when you planned ihe library at Louisville, the savings-bank insurance system in Massachusetts, the yardstick method of calculating gas rates in Boston, were convinced that the mechanism you had provided, so admirably adapted to your theories, would prove your case for small units. If you were to come back now, and again scrutinize your favored institutions, would you not agree with us that what made those enterprises so successful was not their scale but the quality of the gifted man that conceived them and for a time guided their operations? When he left they lost some of their unique quality. In all life proof abounds that he who is a good and faithful servant over a few things can usually be set over many things.”

For, as Lord Radcliffe’s Reith Lectures and his apt citation of the experience in India, of British civil servants showed, the “problem of power” is less a question of the magnitude than of the morality of responsibility. Power and bigness are no more inherently good or bad than are water and land. All turns on the use made of them. And men in large and small undertakings alike may be trained to selfdiscipline. In this they may be aided by codes of professional behavior. They are even more helped to become better stewards and better men by the habitual vision of greatness in others.


THUS it is primarily because of his example of personal greatness, not because of his program and doctrine, that we stand so in debt to Brandeis. His practice was even sounder then his precept. If we reject as thoroughly impractical his notion that jobs should be cut down to man-size, and Mistead reluctantly conclude that to achieve peace, to reduce illness, poverty, and ignorance, and to promote the efficient use of human and natural resources, largescale organizations with oversize jobs are inevitable in our times, Brandeis illustrated for us perhaps better than anyone else how to fill such posts.

First is his method of work. He sought out the detil and pondered it while he savored its significance. When Brandeis understood all that there was to know about the facts, he himself (at least until his last years) prepared his own statement of his findings and conclusions. I well remember a remark the Justice made to me when I first entered the public, service: ‟The reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work.’

There are those, I am sure, who will say that this practice is well enough for a judge, removed from most of the harassments of ordinary office life, considering problems neatly packaged in bound records with defined issues, and not under strong inducement to solve forthwith urgent practical problems, but that this is a ridiculous model for the crowded executive or other man absorbed in active struggle.

I suggest that the rejection of the Brandeis model often comes too fast. It is extraordinary how much even the man charged with vast administrative responsibilities can gain in discriminating judgment, in overall appraisal, in effectiveness of communication, and in that respect of his fellow workers which breeds authority, when he speaks from personal knowledge of detail. What initially may appear a sacrifice of time comes back manyfold in the form of durable increased reputation.

More than his method of work, Brandeis’s moral character deserves prolonged contemplation. You may suppose that those emphasized words are a conventional tribute of the type customarily paid to all but the most venal men who have ever held high office. But I mean no such naïve standard compliment. Brandeis’s morality, though it was the undoubted foundation of a life of unusual consistency and, in that sense, integrily, presents shortcomings as well as extraordinary depths that repay extended consideration.

One shortcoming has struck most commentators who have assayed the claim that Brandeis was in the Renaissance sense ‟a complete man.” Of the three cardinal values, Brandeis prized highly only two truth and goodness. Beauty received scant attention. Absence of a vibrant. interest in art and poetry is perhaps not always meaningful. But here it is, I suspect, of importance, for it underlines how severely rational was the ethics to which he adhered. His moral order is economic, not poetic, in its foundations. Far from the mark are the comparison of Brandeis to the Biblical prophets and the appellation of Isaiah which he won from President Franklin D. Roosevelt. Mysticism, poetry, the prophetic vision that passoth understanding, never governed Brandeis’s utterances. Indeed Brandeis was not like the Old Testament type of moralist the Jewish people has produced — for his ultimates are hardly tinged with emotion. Certainly he was not, like Spinoza, “Gad-intoxicated.” Nor was he suffused with an indiscriminate love of all mankind. And just as he was not overwhelmed by an awareness of fraternal love or of its magic key to the solitariness that lies at the core of all men, so he was not troubled by irrational evil in the world, nor by man’s innate perversity which some orthodox theologians ascribe to original sin, and which others of us regard as being waywardness as mysterious as our sudden impulses for good.

But the most intriguing and optimistic aspect of Brandeis’s moral life, the one that I believe especially repays study, is what seems to me its progressive improvement beginning in middle life. Some there are who prefer to worship heroes who sprang full armed at birth from the head of Zeus. And for those used to rites appropriate for such primitives, Brandeis is a quite unsatisfactory model. As was the case with Abraham Lincoln, whom Brandeis so much resembled in physical appearance, certain episodes in Brandeis’s youth and early maturity are so contrary to the idealism proclaimed in later life that some hostile critics have doubted his sincerity.

There are others who suppose that there was at some stage in Brandeis’s life a dramatic forking of the road. Some have suggested it came with marriage to a strong wife with a deep social conscience, reared in a family consecrated by a high sense of duty. Others offer a rationale in terms of an inner response to specific outside stimulus: horror at the Homestead strike, contact with the garment workers in Now York, gradual withdrawal by the Boston Brahmins of the hospitality early extended to Brandeis, a determination to become a factor in polities, the acquisition from legal practice of an ‟independent fortune” which made it easier for him to be an “independent man.‟

All of these analyses strike me as naïve substitutes for a far more common, but nonetheless wonderful and encouraging, explanation. Brandeis himself was the exemplar par excellence of his own doctrine that “responsibility is the great developer of man.” L.D.B. was a man of constant inward growth. And let us not take from him the glory that he won, by our pretending either that he was always noble or that he became so by external pressure, He grew by trial and error. We are reminded of the dilemma presented to Senator Albert J. Beveridge while he was collecting material for his four-volume biography of Lincoln. As he proceeded with his investigation of original sources, Beveridge became so alarmed at what he regarded as discreditable episodes in Lincoln’s early life that he contemplated burning his papers and abandoning the project. Then Beveridge determined that to the reflective student Lincoln was the greater man because it was by conquering himself that he had won the world.

The life of Brandeis had no such depths as the Illinois politician’s from which to rise, nor did it ascend quite to Lincolnian heights of pity and love: yet it is a great, perhaps the greatest American, saga of the independent man of our times, the man who believes that ultimate questions must be referred not primarily to some official power or legal proclamation, but to an inward authority — an authority that may be religious, or humanistic, or humanitarian; an authority for which the ethical and creative aspects of the individual man are paramount considerations; an authority that promotes the unflagging search for those arrangements of life, of work, and of leisure which enlarge the capacity of man to discover truth, to achieve beauty, and to foster a fraternal fellowship.