SOME of the wiser words about the great American experiment—namely, the creation of a continent-sized country, governed of, by and for the people—were written by Louis Brandeis, a justice of the Supreme Court between 1916 and 1939. To Brandeis is owed the observation that the federal system often gains by letting each state, if its citizens so choose, serve as a “laboratory” of democracy, trying out new policies without imposing them on the whole country. Few have improved on Brandeis’s defence of free speech, written in 1927 after a Californian woman was jailed for speaking on behalf of a communist party. America’s founders, he argued, put their faith in reasoned discussion among citizens and believed that the “greatest menace to freedom is an inert people”. Thus, unless hateful speech poses an imminent danger, the remedy is “more speech, not enforced silence.”
The centenary of the Brandeis confirmation falls next month, sparking a flurry of scholarship. His confirmation by the Senate was bitterly contested by the standards of the day. Brandeis was the first Jewish justice, nominated by Woodrow Wilson amid some coded anti-Semitism (one...Continue reading
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