faculty essay
Brandeis on Law and Public Morality:
“[A] law has no vital force [if] public opinion will not enforce it, and in a free country no officials, however vigilant and faithful, can enforce a law which has not public support...”2
PEPPERDINE LAW
speech, and privacy. The fight by business conservatives against Brandeis’s Supreme Court nomination sealed this reputation as a progressive. But the truth is more complex. Brandeis was involved in several progressive causes before and during the MIT lectures. Brandeis’s conservatism was not merely a longing that things remain the same or that we return to some golden age. Brandeis later said, “[t]rue conservatism involves progress, and . . . unless our financial leaders are capable of progress, the institutions which they are trying to conserve will lose their foundation.”12
T h e Co m m on L a w a n d L e g i s l a t i on One surprising aspect of the MIT lectures—given Brandeis’ statement to The Independent—is that there is little evidence in them of the social activist lawyer that was to come. To progressive readers, the lectures are disappointingly conservative. What then are we to make of this “epoch” in Brandeis’ career? Evidence suggests that his conversion concerned the roles of the common law and legislation. Brandeis originally intended the lectures to be “a routine defense of the adequacy of the common law to deal with industrial and commercial problems.”13 It is likely that the original plan was that the lectures would express a confidence in the common law that was similar to that expressed in his “Privacy” article: “Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.”14
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In his MIT lectures, however, Brandeis was much more critical of the common law. He stated that “[t]he deference to custom and to precedent from which the law sprang, induced the court at times to deny relief in new cases, because there was no precedent for it, although the dictates of justice and morality demanded that relief in some form should be granted.”15 He also identified various means for correcting the common law, including legislation, equity, and referenda. The clearest example within the MIT notes of the impact of Brandeis’ pro-legislation conversion on a specific issue is his shift on the question of the constitutionality of legislation. In an early lecture Brandeis praised courts for finding social legislation to be unconstitutional, but in a later lecture he argued that, “Within the sphere assigned by the Constitution, the power of Congress and the power of the Legislature of each state is absolute. Whatever law it enacts, however unwise, however unjust, however unreasonable . . . is valid and binding.”16 As a public interest lawyer and a Supreme Court justice, Brandeis was to become one of the foremost defenders of the constitutionality of legislation in the 20th century. Brandeis’ Supreme Court opinions presented detailed justifications for much of the legislation that was before the Court. He argued that “the legislature being familiar with local conditions, is primarily the judge of the necessity of such enactments”17 and that judges should exercise restraint in the face of legislation with which they might disagree.