Brandeis and the Progressive Constitution
Brandeis and the Progressive Constitution

Author: Edward A. Purcell

Publisher: Yale University Press

Published: 2000-02-09

Total Pages: 446

ISBN-13: 9780300078046

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During the twentieth century, and particularly between the 1930s and 1950s, ideas about the nature of constitutional government, the legitimacy of judicial lawmaking, and the proper role of the federal courts evolved and shifted. This book focuses on Supreme Court justice Louis D. Brandeis and his opinion in the 1938 landmark case Erie Railroad Co. v. Tompkins, which resulted in a significant relocation of power from federal to state courts. Distinguished legal historian Edward A. Purcell, Jr., shows how the Erie case provides a window on the legal, political, and ideological battles over the federal courts in the New Deal era. Purcell also offers an in-depth study of Brandeis's constitutional jurisprudence and evolving legal views. Examining the social origins and intended significance of the Erie decision, Purcell concludes that the case was a product of early twentieth-century progressivism. The author explores Brandeis's personal values and political purposes and argues that the justice was an exemplar of neither "judicial restraint" nor "neutral principles," despite his later reputation. In an analysis of the continual reconceptions of both Brandeis and Erie by new generations of judges and scholars in the twentieth century, Purcell also illuminates how individual perspectives and social pressures combined to drive the law's evolution.

Louis D. Brandeis
Louis D. Brandeis

Author: Jeffrey Rosen

Publisher: Yale University Press

Published: 2016-06-01

Total Pages: 257

ISBN-13: 0300160445

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According to Jeffrey Rosen, Louis D. Brandeis was “the Jewish Jefferson,” the greatest critic of what he called “the curse of bigness,” in business and government, since the author of the Declaration of Independence. Published to commemorate the hundredth anniversary of his Supreme Court confirmation on June 1, 1916, Louis D. Brandeis: American Prophet argues that Brandeis was the most farseeing constitutional philosopher of the twentieth century. In addition to writing the most famous article on the right to privacy, he also wrote the most important Supreme Court opinions about free speech, freedom from government surveillance, and freedom of thought and opinion. And as the leader of the American Zionist movement, he convinced Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine. Combining narrative biography with a passionate argument for why Brandeis matters today, Rosen explores what Brandeis, the Jeffersonian prophet, can teach us about historic and contemporary questions involving the Constitution, monopoly, corporate and federal power, technology, privacy, free speech, and Zionism.

Brandeis
Brandeis

Author: Philippa Strum

Publisher: University Press of Kansas

Published: 1993-09-02

Total Pages: 242

ISBN-13: 0700606874

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Revered as the "People's Attorney," Louis D. Brandeis concluded a distinguished career by serving as an associate justice (1916-1939) of the U.S. Supreme Court. Philippa Strum argues that Brandeis-long recognized as a brilliant legal thinker and defender of traditional civil liberties-was also an important political theorist whose thought has become particularly relevant to the present moment in American politics. Brandeis, Strum shows, was appalled by the suffering and waste of human potential brought on by industrialization, poverty, and a government increasingly out of touch with its citizens. In response, he developed a unique vision of a "worker's democracy" based on an economically independent and well-educated citizenry actively engaged in defining its own political destiny. She also demonstrates that, while Brandeis's thinking formed the basis of Woodrow Wilson's "New Freedom," it went well beyond Wilsonian Progressivism in its call for smaller governmental and economic units such as worker-owned businesses and consumer cooperatives. Brandeis's political thought, Strum suggests, is especially relevant to current debates over how large a role government should play in resolving everything from unemployment and homelessness to the crisis in health care. One of the few justices to support Roosevelt's New Deal policies in the 1930s, he nevertheless consistently criticized concentrated power in government (and in corporations). He agreed that the government should provide its citizens with some sort of "safety net," but at the same time should empower people to find private solutions to their needs. A half century later, Brandeis's political thought has much to offer anyone engaged in the current debates pitting individualists against communitarians and rights advocates against social welfare critics.

Louis D. Brandeis
Louis D. Brandeis

Author: Melvin I. Urofsky

Publisher: Schocken

Published: 2012-09-04

Total Pages: 978

ISBN-13: 0805211950

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As a young lawyer in the late nineteenth and early twentieth centuries, Louis Brandeis, born into a family of reformers who came to the United States to escape European anti-Semitism, established the way modern law is practiced. He was an early champion of the right to privacy and pioneer the idea of pro bono work by attorneys. Brandeis invented savings bank life insurance in Massachusetts and was a driving force in the development of the Clayton Antitrust Act, the Federal Reserve Act, and the law establishing the Federal Trade Commission. Brandeis witnessed and suffered from the anti-Semitism rampant in the United States in the early twentieth century, and with the outbreak of World War I, became at age fifty-eight the head of the American Zionist movement. During the brutal six-month congressional confirmation battle that ensued when Woodrow Wilson nominated him to the Supreme Court in 1916, Brandeis was described as “a disturbing element in any gentlemen’s club.” But once on the Court, he became one of its most influential members, developing the modern jurisprudence of free speech and the doctrine of a constitutionally protected right to privacy and suggesting what became known as the doctrine of incorporation, by which the Bill of Rights came to apply to the states. In this award-winning biography, Melvin Urofsky gives us a panoramic view of Brandeis’s unprecedented impact on American society and law.

Keeping Faith with the Constitution
Keeping Faith with the Constitution

Author: Goodwin Liu

Publisher: Oxford University Press

Published: 2010-08-05

Total Pages: 274

ISBN-13: 0199752834

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Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

Rehabilitating Lochner
Rehabilitating Lochner

Author: David E. Bernstein

Publisher: University of Chicago Press

Published: 2011-05-15

Total Pages: 204

ISBN-13: 0226043533

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In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

Democratic Theories and the Constitution
Democratic Theories and the Constitution

Author: Martin Edelman

Publisher: State University of New York Press

Published: 1985-06-30

Total Pages: 416

ISBN-13: 1438401841

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Although the government of the United States is traditionally viewed as a democracy, there is considerable disagreement about what democracy means and implies. In a comprehensive study Professor Edelman examines the three democratic paradigms most prevalent in America today: natural rights, contract, and competition. Theories based on these paradigms lead to different ideas of democracy, each of which yields variant interpretations of the Constitution. This close relationship between democratic theories and constitutional interpretations is analyzed in an extensive historical introduction, which focuses on some of the major thinkers in American history. Edelman's discussion shows that neither the Constitution nor the development of American political thought can serve as an authoritative basis for any one theory of democracy. Instead of a particular theory, the historical constant was an appeal to reason inherent in our basic charter. In his methodological section, Edelman argues that we must use reason to clarify the latent values inherent in the differing concepts of democracy and the consequences that flow from them. He analyzes judicial ideas in the light of three concepts deemed central to any democratic theory—citizenship, political participation, and political freedom—and concludes with a balanced account of contemporary democratic theories, the constitutional theories related to them, and a critique of both.

Originalism, Federalism, and the American Constitutional Enterprise
Originalism, Federalism, and the American Constitutional Enterprise

Author: Edward A. Purcell

Publisher: Yale University Press

Published: 2007-12-28

Total Pages: 311

ISBN-13: 0300122039

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In this lively historical examination of American federalism, a leading scholar in the field refutes the widely accepted notion that the founding fathers carefully crafted a constitutional balance of power between the states and the federal government. Edward A. Purcell Jr. bases his argument on close analysis of the Constitution’s original structure and the ways that structure both induced and accommodated changes over the centuries. There was no clear agreement among the founding fathers regarding the "true" nature of American federalism, Purcell contends, nor was there a consensus on "correct" lines dividing state and national authority. Furthermore, even had there been some true "original" understanding, the elastic and dynamic nature of the constitutional structure would have made it impossible for subsequent generations to maintain any "original" or permanent balance. The author traces the evolution of federalism through the centuries, focusing particularly on shifting interpretations founded on political interests. He concludes with insights into current issues of federal power and a discussion of the grounds on which legitimate decisions about federal and state power should rest.

Dissent and the Supreme Court
Dissent and the Supreme Court

Author: Melvin I. Urofsky

Publisher: Vintage

Published: 2015-10-13

Total Pages: 545

ISBN-13: 110187063X

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“Highly illuminating ... for anyone interested in the Constitution, the Supreme Court, and the American democracy, lawyer and layperson alike." —The Los Angeles Review of Books In his major work, acclaimed historian and judicial authority Melvin Urofsky examines the great dissents throughout the Court’s long history. Constitutional dialogue is one of the ways in which we as a people reinvent and reinvigorate our democratic society. The Supreme Court has interpreted the meaning of the Constitution, acknowledged that the Court’s majority opinions have not always been right, and initiated a critical discourse about what a particular decision should mean before fashioning subsequent decisions—largely through the power of dissent. Urofsky shows how the practice grew slowly but steadily, beginning with the infamous and now overturned case of Dred Scott v. Sandford (1857) during which Chief Justice Roger Taney’s opinion upheld slavery and ending with the present age of incivility, in which reasoned dialogue seems less and less possible. Dissent on the court and off, Urofsky argues in this major work, has been a crucial ingredient in keeping the Constitution alive and must continue to be so.