Brandeis / Brandeis on Democracy

...that, because of varying conditions, there must be much and constant inquiry into tactics . . . and much experimentation...

...But beginning in the 1960s, Brandeis was debunked from different directions...

...BRANDEIS: BEYOND PROGRESSIVISM Philippa Strum University Press of Kansas /228 pages / $25...

...I ishard to argue with her...

...The author of The Curse of Bigness, Brandeis was a relentless critic of outsized institutions, whether they were industrial monopolies or the bureaucratic state that dwarfed the individual and demeaned the citizen...

...Philippa Strum, a devoted Brandeis scholar, argues that his critics largely miss the point...

...In Engler's Michigan, the country's most extensive experiment with charter schools was a response, in part, to parental pressure on state legislators...

...But charter schools were derailed last October when a Michigan court ruled, in a case brought by the teachers' unions and the ACLU, that schools operating outside of strict state regulation might be a threat to the separation of church and state...

...Brandeis might have been talking directly about the current welfare debate when in 1922 he told a group of fellow liberals that reform meant more than the improvement of material conditions...

...I suspect that, for all the shared concerns for an active citizenry, Lasch's residual Marxism blinded him to Brandeis's understanding of the importance of market competition as both a school for citizenship and a brake on the size of government...

...Brandeis, said McCraw, was blinded by his hatred of dominating institutions, and unable to see that some monopolies, notably those that involved the vertical integration of heavy manufacturing, were both economically inevitable and a boon to the consumer...

...When one of today's most innovative governors, Republican John Engler of Michigan, recently warned that "conservative micromanagement from Washington is no better than liberal micromanagement," it called to mind the issues at the heart of Brandeis's dispute with the conservative justice George Sutherland in the 1932 case New State Ice Co...

...It's odd that Lasch, who took up many of the same issues as Brandeis, and often in the same spirit as "old Isaiah," referred in his extensive writings to Brandeis only in passing...

...And Lasch surely wrote from the same sensibility as the Brandeis who urged people not to buy from producers who spent too much on advertising, or the Brandeis who fretted over "servile, self-indulgent, indolent" consumers...

...Brandeis had his limits: like Lasch he had an apocalyptic side, as when he told Felix Frankfurter in the 1920s that "the wage system was doomed...

...17.95 paper reviewed by HARRY JACOBS Beyond Progressivism, "was finding the method by which the Jeffersonian imperatives of economic independence could be achieved in an industrial age...

...During the 1930s, Murphy showed, Brandeis used his protege Felix Frankfurter to lobby FDR on behalf of antitrust legislation and an anti-bureaucratic approach to the Great Depression...

...The American Spectator April 1995 63...

...Meanwhile, economic historians challenged Brandeis on his zealous enforcement of anti-trust statutes...

...case to substitute his judgment for that of the legislature absent clear violations of the Constitution, argued that state actions "can ordinarily be determined only by consideration of the contemporary conditions, social, industrial and political, of the community to be effected...

...McCraw complained that Brandeis hated big business "more than he loved the consumer, [and] valued individualism more highly than price competition...

...It is one of the happy incidents of the federal system," he wrote, "that a single courageous state may...try novel social and economic experiments without risk to the rest of the country...

...At the height of the Depression, Brandeis—through an intermediary, the New Dealer Tommy Corcoran—warned Roosevelt, "We're not going to let this government centralize everything...

...This was for Sutherland a violation of natural rights...

...But Brandeis, unwilling in the New Ice Co...

...v. Liebman, which is reprinted in Brandeis on Democracy...

...Instead, he argued that they should attack "evil in situ," remembering "that progress is necessarily slow...

...Mentor first to Woodrow Wilson and then a long line of New Dealers, Brandeis was taken as a prophet of sorts by President Roosevelt, who referred to him as "old Isaiah...

...Super-stores, opponents complain, are not just bad for Main Street, they are bad for communities, because they leave small towns without merchants who give their time and energy to the local institutions of self-government, the Boy Scouts, the soccer league, and the Rotary Club...

...Today, "much experimentation" on issues ranging from welfare to school reform is again threatened by a judicial activism with a scant regard for democratic participation...

...But reading Philippa Strum's collection of Brandeis's writings and opinions makes it clear that, his economist critics notwithstanding, Brandeis was a democrat for all seasons...

...His unarticulated goal," writes Philippa Strum in Brandeis: Harry Jacobs is a writer living in New York City...

...In the 1940s his apothegms on subjects ranging from the evils of the trusts to the importance of individuality were collected as a guide for the perplexed in Albert Leif's chapbook The Brandeis Guide to the Modern World...

...As for your young men," he told Corcoran, referring to the ambitious men on the make who've made Washington what it is today, "you call them together and tell them to get out of Washington—tell them to go home, back to the states, that is where they must do their work...

...McCraw the modernist saw Brandeis's hostility to the trusts as of a piece with the jurist's disdain for the automobile, the telephone, advertising, and the passivity of spectator sports...

...This champion of the working man believed in liberty more than he believed in laissez-faire, because he saw the political power generated by the steel and oil trusts as a threat to competition, and competition, he insisted, was good for the moral character of the competitors and good for democracy...

...The future of welfare reform may very well rest on whether the current justices are willing to restrain their own inclinations left or right...

...The bitter fights under way in New York city and dozens of small towns around the country over the arrival of WalMarts and other "super-stores" highlights another contemporary issue near and dear to the Justice's heart, the importance of small business to healthy communities...

...The Brandeis who insisted that the federal government "is too big to be a force for good" would be little surprised by today's devolutionists who have rediscovered his emphasis on the states as laboratories of democracy...

...If the Lord had intended things to be big," Brandeis explained, sounding almost like Hayek, "he would have made man bigger in brains and character...

...First, in Brandeis: Beyond Progressivism, and then in a recently published collection of his writings, Brandeis on Democracy, Strum makes the case that his insights on the danger of outsized institutions—whether in government or in business—not only endure but look more convincing than ever...

...Legal scholars such as Bruce Murphy questioned his ethics while serving on the Supreme Court...

...But Brandeis argued (and this will be no small matter when it comes to welfare reform) that the country's plight was due "to the limitations set by courts upon experimentation...

...Brandeis would have agreed...

...T he late Christopher Lasch understood the importance of small businessmen for the moral life of a democracy...

...He warned them not to "believe that you can find a universal remedy for evil conditions or immoral practices (as by state socialism...

...When the corner grocer or the locksmith scolds a child for running into the street," he wrote, the child learns something about the collective obligationsof adults to the children of a community...

...Thomas McCraw, a devotee of Galbraithian planning, argued in Prophets of Regulation that 62 The American Spectator April 1995 Brandeis allowed Oklahoma to place hurdles in front of new firms looking to enter the ice business, despite his own insistence on the importance of competition...

...Brandeis failed to understand the virtues of the giant corporation...

...He would have sympathized with those small-towners who are fighting the arrival of a local Wal-Mart franchise...

...that remedies are necessarily tentative...

...He has so much respect for private property," wrote Max Lerner, "that he wishes it were more equitably distributed, so much respect for capital that he wishes it to flow freely instead of being concentrated in a money trust...

...Like Harold Laski, the British leftist, who a half-century earlier described Brandeis as a "romantic anachronism," McCraw consigned him to the category of curmudgeon...

...In the case of Michigan, the collapse of the inner-city schools suggests that Brandeisian forbearance is in order...

...Both men extolled the character-building virtues of competition, both were deeply respectful of the cooperative version of self-help morality found in lower middle-class workers...

...This was argued as a matter of principle...

...it had to speak as well to "the moral and spiritual development of those concerned...

...17.95 paper BRANDEIS ON DEMOCRACY Edited by Philippa Strum University Press of Kansas / 258 pages / $29.95...