Louis Brandeis: What A Life!

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Melvin I. Urofsky
Louis D. Brandeis: A Life
(Pantheon)


Compared to Louis Brandeis, most contemporary Jewish leaders in the United States appear models of shrunken stature and specialized abilities. Brandeis excelled as an American political reformer, as a great legal mind, as a U.S. Supreme Court Justice and as the leader of the American Zionist movement. A mixture of idealism and pragmatism, Brandeis’ legacy includes: his Supreme Court briefs, particularly in the areas of constitutional freedoms such as freedom of speech and the right to privacy; his efforts to reform big business (not because he was a Socialist but because he believed in both small business and small government); and his leadership role in the Jewish community.

Brandeis’ legacy is clarified to a great extent in Melvin Urofsky’s well-written and engaging 953-page biography. Raised in Louisville, Kentucky, in a cultured, middle-class, non-observant German-Jewish family, Brandeis studied for three terms at university in Dresden, Germany. That’s where he “really learned to think” according to Urofsky. Brandeis learned the discipline of deductive reasoning and that led him to the study of law. Brandeis entered Harvard Law School in 1875 at a time when the role of lawyers began changing from simple advocates to counselors.  This new role served Brandeis’ idealistic temperament and his strengths as a lawyer. Another change in the profession was that of lawyer from general practitioners to specialists in complex issues. This led to the growth of the modern law firm, which employed a large number of specialists.

Brandeis not only understood this new legal landscape, he thrived in it. Urofsky never specifically says so but it is as if Brandeis saw much further than his contemporaries. For example, before 1905 when Brandeis wrote his famous article “The Right to Privacy” in the American Law Review, the right to privacy scarcely existed. It is not one of the freedoms enumerated in the American Constitution. Nor did any legal tradition of invasion of privacy exist. Urofsky argues that Brandeis essentially created a tort, a civil wrong, which allowed people to collect damages for unwarranted intrusion into their private affairs. From this came protection of the right to be left alone.

As a reformer, Brandeis took on the insurance industry, creating one of the first modern citizens lobbies. More than simply winning a case against the insurance industry, Brandeis “believed in the people and their ability, once they knew the facts, to do the right thing”, wrote Urofsky. Thus the people had to “own the reform”—something that President Obama has failed to do with health care reform.

Ironically, this American notion of idealism mixed with a focus on the concrete ultimately failed Brandeis in his role as a leader of the Zionist movement. Urofsky first reviews and then rejects all the reasons given by other Brandeis scholars why he suddenly, in 1914, became a Zionist. Urofsky argues that Brandeis came to Zionism as a result of his belief in democracy and social justice, which Brandeis equated with American ideals. His experiences as an American lawyer and progressive reformer shaped his understanding of Zionist leadership. Brandeis preached, “To be good Americans, we must be better Jews, and to be better Jews, we must become Zionists.”

As Brandeis understood it, Zionism didn’t mean aliyah for American Jews, only for those Jews who lived in lands of oppression. And clearly, the vast majority of American Jews had no intention of leaving the United States. However, European Jews made aliyah a personal requirement.

With the announcement of the Balfour Declaration, Brandeis had an opportunity to speak out and encourage U.S. President Woodrow Wilson to endorse the declaration. But as Urofsky details, Brandeis refrained and the Wilson held off endorsement of the British declaration until September 1918.

Although Brandeis’ leadership changed Zionism from marginal to mainstream, what did American Zionism really stand for except as a large-membership organization devoted to raising funds? Without any ideology or strong commitment to cultural revival and the role of Hebrew, many American Jews began to see the movement as devoid of Yiddishkeit. Brandeis’ response was to present a five-point plan at the 1918 Zionist convention in Pittsburgh. A practical, six-point Pittsburgh Platform was adopted. Planks included recognition of political and civil equality “irrespective of race, sex or faith of all the inhabitants of the land” and that “Hebrew, the national language of the Jewish people, shall be the medium of public instruction”. But there was no mention of aliyah, religion, cultural renaissance or national redemption.

In a subsequent leadership struggle within the World Zionist Organization (WZO), Chaim Weizmann denounced Brandeis and pronounced, “There could be no peace between Pinsk and Washington”. Brandeis critics charged that his entire conception of Zionism was goyish because entirely missed the idea of people living in their own nation openly as Jews, speaking Hebrew. The Weizmann faction prevailed.

Brandeis’ achievement, on the other hand, was to make Zionism acceptable to American Jewry. Perhaps Brandeis did see the bigger picture in the sense that secularization and the American component of American-Jewish identity, both of which stem directly from the freedom offered in American society, has trumped the peoplehood component of Jewish identity. Brandeis’ vision continues to define American Zionism.

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