On Freedom

...While the author fills in a great deal of background historical materials, most of the book is devoted to the critical analysis of recent Supreme Court decisions...

...Reviewed by David Fellman These two scholarly books make important but disparate contributions to the literature of American public law...

...But Bickel's learned and informative explanatory notes, which are in fact substantial essays, add a great deal to our still meager stock of knowledge regarding the give-and-take of discussion and argument among the justices preceding the final formulation of their positions in concrete cases...

...Justice Brandeis did not include his court files in the large collection of papers he deposited at the University of Louisville...

...At the same time, it is equally clear that the author is neither an absolutist nor a dogmatist on these matters...

...Some attention, but not much, is given to state and lower federal court decisions...

...While Konvitz's book is also a work of scholarship, it has less technical law in it than Bickel's and should reach a larger audience...

...But apart from this point, I think this is a fine work of scholarship that deserves a wide reading...

...He entrusted them to Justice Frankfurter, who in turn deposited them with the Harvard Law School...

...Cornell Professor Kon-vitz's book is a study of the basic rights enunciated in the First Amendment—the rights to freedom of religion, speech, press and assembly— based on the premise, as the author puts it, that "the 45 words that comprise the First Amendment are . . . the most precious of all . . ." The contribution of Professor Bickel, who was once Justice Frankfurter's law clerk and now teaches at the Yale Law School, is in illuminating the inner processes of the Supreme Court which ripen into decisions, through the focus of a single distinguished Justice...

...One finds here illustrations of Justice Brandeis' sincere commitment to moral principles, his enormous capacity for hard work, his passion for the mastery of the facts of a problem, his distrust of aprioristic thinking, his great reverence for the Court as an institution and for the historic traditions of the law, and his skill as a technical lawyer...

...I am afraid, however, that I do not agree with his notion that the authors of the Fourteenth Amendment intended to nationalize the Bill of Rights...

...While these eleven hitherto unpublished opinions are interesting documents, and of tremendous value for students of our constitutional law, they do not add much to our understanding of the Justice who wrote them...

...The image most people have of Justice Brandeis is amply confirmed by Bickel's book...

...I think his evidence on this hotly debated question is skimpy, and that he has not, at least in this book, explored the consequences which would necessarily follow from the theory that the great Civil War Amendment was intended to incorporate the whole of the federal Bill of Rights as a limitation on the states...

...The author has gathered together a vast amount of useful information, and makes a great many sensible observations and evaluations...

...There is never any doubt as to where the author stands on controverted questions, and while he handles Supreme Court decisions respectfully, he does not permit himself to be overawed by them...

...All are concerned largely with economic issues, but they graphically illustrate his views regarding the distribution of economic functions in the American federal system, the curse of economic bigness, the necessary deference federal judges owe to the states, and the limitations upon judicial power itself which he regarded as indispensable...

...Bickel has reprinted, from these files, eleven opinions which Justice Brandeis wrote while he was on the bench, but which for one reason or another he did not choose to publish...

...Unfortunately, none of the unpublished opinions deals with his views regarding civil liberties...

...Konvitz, it is clear, is a faithful civil libertarian...

...About a third of Konvitz's book is devoted to the subject of freedom of religion, and most of the remainder is concerned with the various ramifications of freedom of speech...

...And it is abundantly clear that he favors a maximum of freedom of religion, the highest possible wall of separation between church and state for the good of both, and all the freedom of speech and press we can stand...

...In addition, the book is written with a felicity of expression and style which characterizes all of this talented teacher's writings in the field of civil liberties...

...A great deal of space is devoted to a critical analysis of the history and meaning of the clear and present danger doctrine, and he argues cogently that the Court's opinion in the Dennis case reduced "a constitutional jewel" to a mere phrase...