Louis D. Brandeis and the Progressive Tradition
Melvin Urofsky’s Louis D. Brandeis and the Progressive Tradition is a rather brief, interestingly written volume in the Little, Brown and Company series known as the Library of American Biography. The series attempts to provide compact, well-written, solid, biographies to supplement survey courses in American history. The Urofsky book accomplishes these objectives quite competently. The problem, however, is simply that the Library of American Biography as a whole and the Urofsky book in particular follow standard biographies of the subject, utilize conventional sources, and almost preclude new or innovative interpretations. This may be seen in a comparison of Louis D. Brandeis and the Progressive Tradition with another biography published a few months later, The Brandeis/Frankfurter Connection (1982, Oxford University Press) by Bruce Allen Murphy.
The Urofsky book is a conventional biography that covers the entire life of L. D. Brandeis. Born in 1856, Brandeis died just prior to American entry into World War II in 1941. Given a life that spanned a considerable period of American history, a period that encompassed much change in American life and society, Brandeis “clung to a belief in essential, immutable values” and “his vision of what constituted a good society remained intact.” Urofsky’s portrait of Brandeis stresses his consistency over a long lifetime of political and legal activity. According to Urofsky, Brandeis’ “life and work displayed the highest ideals and most effective practices of the progressive tradition.”
This commitment to progressive and liberal values was clear even at the outset of Brandeis’ career. Establishing himself in a successful legal practice following his studies at Harvard Law School, Brandeis wholeheartedly accepted the values and traditions of Boston’s Brahmin class. He also favored free competition and individual responsibility. As a lawyer, he threw himself into his work with intelligence, enthusiasm, competence, and attention to detail. He soon built his practice into one of the largest in all of New England. He also became involved with and supportive of the public welfare and interest.
As a self-appointed advocate of the public, Brandeis not only pointed out problems but also proposed solutions. Frequently he was significantly involved in educating the public. He shared with the progressives a desire to limit the power of large and potentially monopolistic corporations. Brandeis sought to regulate or control large corporations in order to restore the type of free competition that characterized the American economy of the pre-Civil War period.
One example of this interest in curtailing the power of corporations was Brandeis’ participation in Boston’s Public Franchise League, a citizen lobby that effectively prevented the Boston Elevated Railway Company from receiving special favors from the City of Boston. Brandeis wrote a major report in 1902 that eventually brought the Massachusetts State Legislature to accept the public interest over that of the company. This was Brandeis’ first effort at lobbying in behalf of the public. From this point Brandeis went on to make a reputation for himself as a public advocate. Brandeis was not just an advocate of one side, however; he also favored competence and efficiency in companies and occasionally provided them with analyses of their operation that improved their efficiency and permitted a reduction of cost for the public.
In his efforts to improve corporate efficiency and provide protection for the public, Brandeis learned the value of public opinion and the techniques or methods of manipulating public opinion through lobbying. These methods were employed in one of Brandeis’ major accomplishments. The insurance companies so fully controlled the price of life insurance and kept that price so high that industrial workers could not afford life insurance. To meet this need, Brandeis developed the idea of life insurance sold at savings banks. This insurance could be afforded by workers and Brandeis was able to win acceptance of the idea in the Massachusetts Legislature, which approved it in 1907 over the protests of the insurance companies.
Having established his desire to assert the public interest against monopolistic corporations, Brandeis continued this commitment in a variety of ways. In the late nineteenth and early twentieth centuries the Supreme Court and the legal system were characterized by laissez-faire, ignoring the public and invariably supporting business. National attention was directed to Brandeis in his brilliant arguments against laissez-faire before the Supreme Court in 1908 in the case Muller v. Oregon. In this case Brandeis’ brief spent only two pages on the legal question—whether the State of Oregon had the legal right to establish a maximum hour law for women—and focused, instead, on the effects on the health and morals of working women of not mandating a maximum hours law. Citing study after study, Brandeis made clear the responsibility of the Supreme Court and the legal profession not only to consider the law but also to be...
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