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Citizen Brandeis

Lafayette

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A 20th-century giant of the Supreme Court offers lessons about politics today

SOME of the wiser words about the great American experiment—namely, the creation of a continent-sized country, governed of, by and for the people—were written by Louis Brandeis, a justice of the Supreme Court between 1916 and 1939. To Brandeis is owed the observation that the federal system often gains by letting each state, if its citizens so choose, serve as a “laboratory” of democracy, trying out new policies without imposing them on the whole country.

Few have improved on Brandeis’s defence of free speech, written in 1927 after a Californian woman was jailed for speaking on behalf of a communist party. America’s founders, he argued, put their faith in reasoned discussion among citizens and believed that the “greatest menace to freedom is an inert people”. Thus, unless hateful speech poses an imminent danger, the remedy is “more speech, not enforced silence.”

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

A live political charge still flows through his words: indeed, with his views on tolerating speech that shocks, Brandeis might struggle to give a college commencement address in 2016 without provoking jeering protests. But in a time of populist, elite-bashing rhetoric, his beliefs about the “curse of bigness” are even more topical.

To simplify, Brandeis urged intense scepticism when any leader—in politics or business—claims to have the general interest at heart, while at the same time constructing any agency or enterprise so large that it cannot be understood, efficiently managed or held to account by alert, responsible, ordinary citizens.

Good notions and noble ideas never die, they just fade away from memory. Often to be replaced by the "dark-side" of humdrum, and everyday mediocrity ...
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