Justice Brandeis as Jeffersonian Jurist

Mendenhall, Allen

doi:10.1007/978-3-030-39605-3_8

Justice Brandeis as Jeffersonian Jurist

Allen Mendenhall⁴

Chapter
First Online: 13 March 2020

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Part of the book series: Palgrave Studies in Classical Liberalism ((PASTCL))

Abstract

This chapter explores Jeffrey Rosen’s depiction of Justice Brandeis as a “Jeffersonian prophet,” “the leader of a Jeffersonian tradition,” and “the Jewish Jefferson” to examine the meaning of the term “libertarian” in the context of American constitutional jurisprudence. It argues that Rosen unsettles the characterization of Brandeis as non-libertarian or anti-libertarian and, consequently, destabilizes the very meaning of “libertarianism” as that term is used by self-described libertarians in current scholarship about American constitutionalism. Whether Brandeis was a pure or true libertarian does not concern me. What interests me is the way in which scholars have invoked Brandeis to delimit the nature of libertarian jurisprudence in the American constitutional context. Brandeis simultaneously illuminates and problematizes the designation “libertarian.” His formative influence on American constitutional law elicits dogged attempts to categorize or classify him. He continues to attract admirers and provoke antagonists, both of whom express firm opinions about his association with libertarianism. At stake in the debate over Brandeis’s association with libertarianism is the meaning and import of “libertarian” jurisprudence in our constitutional tradition. Disturbing any consensus regarding the term “libertarian” in the context of American constitutional jurisprudence is significant because it necessitates two questions: what, exactly, is “libertarian” jurisprudence, and who decides? Answers to these questions may disrupt the momentum that self-identified libertarian legal scholars have enjoyed over the last decade and underscore claims to libertarianism that are at odds with that consensus. Brandeis represents a pragmatic pluralism in his commitment to individual liberty.

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Notes

1.
E.g., Ken L. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge University Press, 2004), 112; Louis Menand, The Metaphysical Club : A Story of Ideas in America (Farrar, Straus & Giroux, 2001), 66; David M. Rabban, “The Emergence of Modern First Amendment Doctrine,” University of Chicago Law Review 50 (1983): 1205, 1212; Howard Gillman, “Regime Politics, Jurisprudential Regimes, and Unenumerated Rights,” University of Pennsylvania Journal of Constitutional Law 9 (2006): 117; Brad Snyder, “The House That Built Holmes,” Law & History Review 30 (2012): 710.
2.
Richard A. Epstein, “Lest We Forget: Buchanan v. Warley and Constitutional Jurisprudence of the ‘Progressive Era’,” Vanderbilt Law Review 51 (1998): 790–91.
3.
Jeffrey Rosen, Louis D. Brandeis: American Prophet (New Haven, CT: Yale University Press, 2016), 1.
4.
Annette Gordon-Reed and Peter S. Onuf, Most Blessed of Patriarchs: Thomas Jefferson and the Empire of the Imagination (Liveright, 2016), 173.
5.
David Boaz, The Libertarian Mind: A Manifesto for Freedom (Simon & Schuster, 2015), 58; Forrest Church, So Help Me God: The Founding Fathers and the First Great Battle over Church and State (Harcourt, 2007), 283; Ronald L. Hatzenbuehler, “Thomas Jefferson,” in Popular Images of American Presidents, ed. William C. Spragens (Greenwood Press, 1998), 34; J. David Hoeveler, The Postmodernist Turn: American Thought and Culture in the 1970s (Rowman & Littlefield, 1996), 168; Paul Aron, We Hold These Truths…: And Other Words That Made America (Rowman & Littlefield, 2008), 100; Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (University Press of Virginia, 2000), 85; Merrill D. Peterson, The Jeffersonian Image in the American Mind (University Press of Virginia, 1998), 437; James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (Simon & Schuster, 2002), 143; “Thomas Jefferson,” in The Libertarian Reader: Classic and Contemporary Writings from Lao-Tzu to Milton Friedman, ed. David Boaz (Simon & Schuster, 1997), 178 (“Perhaps the most eloquent and the most influential piece of libertarian writing in history is the Declaration of Independence, written by Thomas Jefferson”); William Cohen, “Thomas Jefferson and the Problem of Slavery,” Journal of American History (1969): 506.
6.
Rosen, Brandeis, 5.
7.
Ibid.
8.
Ibid., 9.
9.
I doubt that a systematized, check-the-box schemata of libertarian jurisprudence exists.
10.
I wish to express, at least in a note, my personal belief that Brandeis was not a libertarian or a classical liberal. I think Rosen’s second chapter, titled “Other People’s Money,” supports my view and creates problems for Rosen’s argument that Brandeis was, at least in some respects, libertarian.
11.
Michael Greve, The Upside-Down Constitution (Harvard University Press, 2012), 194–95.
12.
See generally ibid., 1–13, 23–28, 63–89, 170–74, 177–99, 259–63, and 380–97 (describing the type of judiciary Greve envisioned as compared to Brandeis’s federalism).
13.
Ibid., 78.
14.
Ibid., 396.
15.
See, for example, Thomas J. DiLorenzo, Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution (Random House, 2009); Thomas J. DiLorenzo, Lincoln Unmasked: What You’re Not Supposed to Know about Dishonest Abe (2006); Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Random House, 2003). It bears noting that Rosen mentions Brandeis’s praise for Hamilton but dismisses its significance by stating that “Brandeis would become more self-consciously Jeffersonian in the following decade.” Rosen, Brandeis, 90.
16.
I use the term “interpretive community” in the sense in which Stanley Fish developed it. See Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard University Press, 1980).
17.
See discussion in part 1.
18.
A New Republic piece highlights the growing popularity of this proliferating libertarian legal movement. See Brian Beutler, “The Rehabilitationists: The Libertarian Movement to Undo the New Deal,” New Republic, Aug. 30, 2015. The article states, “Back then [ten years ago], [Randy] Barnett was one of a handful of academics on the fringes of conservative legal thought. Today, their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They’re building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.” Ibid.
19.
See discussion in part 2.
20.
David E. Bernstein, “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” Notre Dame Law Review 89 (2014): 2033.
21.
David E. Bernstein, “Brandeis Brief Myths,” Green Bag 2d (2011): 15.
22.
David E. Bernstein and Ilya Somin, “The Mainstreaming of Libertarian Constitutionalism,” Law and Contemporary Problems 77, no. 4 (2014): 45. Bernstein and Somin call Brandeis a “Progressive” elsewhere in this article as well. Ibid., 57.
23.
Ibid., 45.
24.
Rosen, Brandeis, 4.
25.
Ibid., 5.
26.
Ibid.
27.
304 U.S. 64 (1938). See Michael S. Greve and Richard Epstein, “Introduction: Erie Railroad at Seventy-Five,” Journal of Law, Economics & Policy 10 (2013): 10–11 (“Erie’s dogmatic positivist premise upended that world [in which classical liberal theories of limited government flourished]. Domestically, it unleashed state courts; and that world may practically demand a backstop in the form of a preemptive foreign affairs doctrine. In a funny way, Erie also opened the door for the reimportation of international law—provided it is not the ‘old’ law of nations but a kind of international regulatory enterprise, even if the identity of the ‘sovereign’ from whom that enterprise emanates is a bit of a mystery”).
28.
Richard Epstein, “In Praise of Suzanna Sherry and Judicial Activism,” Green Bag 16 (2013): 444.
29.
Richard Epstein, “Coniston Corp. v. Village of Hoffman Hills: How To Make Due Process Disappear,” University of Chicago Law Review 74 (2007): 1691; Richard Epstein, “Standing and Spending—The Role of Legal and Equitable Principles,” Chapman Law Review 4 (2001): 4.
30.
Richard Epstein, “The Federalism Decisions of Justices Rehnquist and O’Connor: Is Half a Loaf Enough?,” Stanford Law Review 58 (2006): 1794.
31.
Epstein, “Lest We Forget,” 790–91.
32.
Richard Epstein, “The Monopolistic Vices of Progressive Constitutionalism,” Cato Supreme Court Review (2004–05): 26.
33.
Timothy Sandefur, The Permission Society (2016), 84.
34.
Ibid., 58–59, 62–63.
35.
Ibid., 63.
36.
See Jason Brennan, Libertarianism: What Everyone Needs to Know (Oxford University Press 2012), 84–85.
37.
Damon Root, Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan 2014), 53, 63.
38.
Ibid., 74.
39.
Ibid., 53, 63.
40.
258 U.S. 262 (1932).
41.
Root, Overruled, 63–64.
42.
Ibid., 53, 63–64.
43.
295 U.S. 555 (1935).
44.
Ibid.
45.
295 U.S. 602 (1935); see Root, Overruled, 67–70.
46.
Randy E. Barnett, Our Republican Constitution (Broadside Books, 2016), 149–51; Randy E. Barnett, “Foreword: The Power of Presumptions,” Harvard Journal of Law & Public Policy 17 (1994): 614–15; Randy E. Barnett, “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” Cato Supreme Court Review (2003): 24–25; Randy E. Barnett, “Keynote Remarks: Judicial Engagement Through the Lens of Lee Optical,” George Mason Law Review 19 (2012): 849; Randy E. Barnett, “Necessary and Proper,” UCLA Law Review 44 (1997): 766–77; Randy E. Barnett, “Scrutiny Land,” Michigan Law Review 106 (2008): 1481–82.
47.
Barnett, Our Republican Constitution, 136, 144.
48.
Ibid., 149.
49.
Ibid., 19–20.
50.
Ibid., 173–75 (criticizing Brandeis’s “laboratory of experimentation” trope supporting deference to state legislatures).
51.
Ibid., 22.
52.
Ibid., 23.
53.
Ibid., 24–26.
54.
208 U.S. 412 (1908).
55.
Barnett, Our Republican Constitution, 144–49.
56.
282 U.S. 251 (1931); see Barnett, Our Republican Constitution, 149–50.
57.
285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see Barnett, Our Republican Constitution, 173–75.
58.
Barnett , Our Republican Constitution, 148; see also ibid., 147 (referring to the Brandeis brief as “a great progressive and legal realist triumph over formalism”); see also ibid., 174 (calling Brandeis “a leading progressive activist”).
59.
Rosen, Brandeis, 54.
60.
Barnett, Our Republican Constitution, 145; see also ibid., 153 (describing how the Brandeis brief changed judicial system).
61.
See text accompanying notes 20–22, 28–29, 31, 33, 38, 47.
62.
Rosen , Brandeis, 44 (Rosen acknowledges that “Brandeis came to be a leader of the Progressive movement,” so to maintain his thesis that Brandeis was a Jeffersonian who should appeal to libertarians, he dismisses this aspect of Brandeis’s biography with the qualification that Brandeis fought for “the traditional view of the relationship between the commonwealth and private businesses, in which the state defended the public interest, financial probity, and the accurate valuation of corporate property”); ibid. (to this end, he calls Brandeis “a kind of Jeffersonian McKinsey consultant, representing the interests of both labor and management”).
63.
Ibid., 194. Rosen states that Albert Jay Nock’s biography of Jefferson demonstrates that the libertarian Right once lionized Brandeis, but if anything Nock’s book shows, rather, that the libertarian Right, as represented by Nock, lionized Jeffersonian views and principles that may be compatible with those of Brandeis.
64.
Ibid., 193.
65.
Ibid., 6.
66.
Ibid., 5.
67.
See generally ibid. (describing Barnett’s presupposition of the general awareness).
68.
Ibid., 1.
69.
Ibid., 208.
70.
Ibid., 3.
71.
Ibid., 4.
72.
Ibid., 8–9.
73.
Ibid., 9.
74.
Ibid.
75.
Ibid., 2; see also Melvin Urofsky, Louis D. Brandeis: A Life (New York: Schocken Books 2012), 661.
76.
Rosen, Brandeis, 9.
77.
Ibid.
78.
Ibid., 15.
79.
Ibid., 10. Rosen draws heavily from Nock’s views of Jeffersonian libertarianism. “Nock views Jefferson,” he writes, “whom he calls ‘the great libertarian,’ as a defender of the small producers and farmers against the predations of the large capitalists, monopolists, and financiers”). Ibid. “When he called Jefferson the ‘libertarian practitioner of taste and manners,’ Nock was also describing himself.” Ibid. “Nock’s Jefferson … exemplifies the same libertarian, classical, and agrarian values [as Nock does.].” Ibid. Nevertheless, Rosen maintains that Brandeis and Jefferson were similar on issues such as education where their views may diverge from libertarianism. See, for example, ibid., 21–22, 24 (“Brandeis shared Jefferson’s belief that a democracy could not remain free without educated citizens who were capable of understanding and defending their liberties.” Brandeis was, Rosen says, “even more Jeffersonian than Jefferson in his insistence that the University of Louisville should be entirely local in focus”).
80.
Ibid., 4–5, 13, 115–16.
81.
Ibid., 5.
82.
Ibid.
83.
Ibid., 103.
84.
Ibid., 117.
85.
Ibid., 57 (quoting from Brandeis’s former clerk David Riesman).
86.
Ibid., 6; see also ibid., 101 (“Brandeis insisted that judges should hesitate to strike down state and federal laws unless they clearly violated rights and limitations enumerated in the text of the Constitution, and he insisted that decisions should be written as narrowly as possible to avoid broad constitutional rulings”).
87.
Ibid., 6.
88.
Ibid., 142–43.
89.
Ibid., 10.
90.
Ibid.
91.
Thomas J. DiLorenzo, “The Great Centralizer: Abraham Lincoln and the War Between the States,” Independent Review 3 (1998): 243.
92.
Rosen, Brandeis, 18.
93.
Ibid., 13.
94.
Ibid., 13.
95.
Ibid., 16.
96.
Ibid., 17.
97.
Ibid., 15; ibid., 29 (“From his father, Brandeis absorbed the inspiring example of a small businessman who, through hard work on a human scale, could develop his intellectual faculties and dedicate himself to personal and economic freedom while providing for the needs of his family and his community”); ibid., 30 (“In the same Jeffersonian spirit, Louis Brandeis throughout his life viewed yeoman farming … as the path to freedom and the ideal of democratic self-government”); see also Urofsky, Brandeis, 309.
98.
Rosen, Brandeis, 26.
99.
Ibid., 24.
100.
Ibid., 121.
101.
250 U.S. 616, 624 (1919) (Holmes, J., dissenting).
102.
274 U.S. 357, 372 (1927) (Brandeis, J., concurring).
103.
252 U.S. 239 (1920) (Brandeis, J., dissenting).
104.
Rosen, Brandeis, 123.
105.
Ibid., 129.
106.
Ibid., 132.
107.
Ibid., 135–36.
108.
See generally Stephan Kinsella, Against Intellectual Property (Ludwig von Mises Institute, 2008) (describing libertarian criticisms of copyright and intellectual property).
109.
Rosen, Brandeis, 17.
110.
Ibid.
111.
Bernstein and Somin, “Mainstreaming,” 44.
112.
John O. McGinnis and Ilya Somin, “Federalism vs. States’ Rights: A Defense of Judicial Review in a Federal System,” Northwestern University Law Review 99 (2004): 89 (“Federalism is the cornerstone of the Constitution. Yet, federalism is too often confused by both admirers and detractors with state autonomy, popularly known as ‘states’ rights.’ The constitutional system of federalism assigns powers to state and federal government officials not for their own benefit, but for that of the people. These benefits are many, including the satisfaction of diverse preferences and competition both among the states themselves and between the states and federal government. While state autonomy plays a large role in sustaining the benefits of federalism, the federal government also has an important role to play in creating a framework of open trade and investment that assures that states will deliver these benefits. Sometimes federalism can be protected by only restricting the power of state governments, rather than strengthening it”); see also Greve, Upside-Down Constitution.
113.
McGinnis and Somin, “Federalism,” 107–12; see also Greve, Upside-Down Constitution.
114.
Rosen, Brandeis, 56.
115.
See, for example, Bernstein and Somin, “Mainstreaming” (characterizing Barnett and Esptein as libertarians supporting a strong federal judiciary).
116.
Root, Overruled, 7–8.
117.
Barnett, Restoring the Lost Constitution, xi, 251–53; see also, Randy Barnett, “‘Judicial Engagement’ Is Not the Same as ‘Judicial Activism’,” Washington Post (January 28, 2014) (“The real dispute between some judicial conservatives and us is over the proper scope of the enumerated powers of Congress and, especially, the unenumerated police powers of states. Also in dispute is the original meaning of such ‘lost’ clauses as the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment, which were written in general terms precisely because the rightful liberties of the people are so capacious they cannot all be enumerated or listed. We believe that both of these lost clauses are expressions of popular sovereignty in which the ‘rights … retained by the people’ are to be protected against unreasonable restrictions from the federal government, just as the ‘privileges or immunities’ of citizens are to be protected against the states, by adopting implementing doctrines like those that courts today use to protect the natural right of freedom of speech. Those who reject implementing these provisions because these clauses don’t meet their standards of specificity would disregard the written Constitution in the name of their own conception of ‘the rule of law,’ just as surely as others reject the written Constitution because it does not comport with their own conception of ‘social justice.’ Both positions should be rejected by constitutional conservatives”).
118.
Barnett, Restoring the Lost Constitution, 255–56.
119.
See generally ibid., 259–69 (arguing his proposed rule to construe liberty).
120.
Ibid., 259–60.
121.
Ibid., 266.
122.
See generally ibid. (explaining the scope of judicial review under his proposed rule).
123.
Ibid., 321.
124.
Ibid., 324.
125.
Randy E. Barnett, “Why Popular Sovereignty Requires the Due Process of Law to Challenge ‘Irrational or Arbitrary’ Statutes,” Georgetown Journal of Law and Public Policy 14 (2016): 366.
126.
See generally Barnett, “Why Popular Sovereignty Requires the Due Process of Law to Challenge ‘Irrational or Arbitrary’ Statutes,” 226–95 (positing his view of Amendments as a means to intervene into state law).
127.
Clark M. Neily III, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (2013): 24–25, 65, 154–55.
128.
Ibid., 83.
129.
Ibid., 3.
130.
Ibid.
131.
Ibid., 10–11.
132.
Ibid., 77.
133.
Of course, any actions of any branch of the federal government could affect the powers, laws, and activities of the several states.
134.
5 U.S. (1 Cranch) 137, 177 (1803).
135.
Richard Epstein, The Classical Liberal Constitution (2014), 77.
136.
Ibid., 98.
137.
Ibid., 79.
138.
Ibid.
139.
Rosen, Brandeis, 109.
140.
Ibid., 2–3.
141.
Ibid., 5, 114.
142.
Ibid., 114.
143.
Ibid.
144.
Ibid., 5.
145.
Ibid., 5–6.
146.
Llewellyn H. Rockwell Jr., “Introduction,” in Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (Ludwig von Mises Institute [1973] 2006), ix, 2.
147.
Joseph T. Salerno and Matthew McCaffrey, eds., The Rothbard Reader (Ludwig von Mises Institute, 2016), 13.
148.
Murray N. Rothbard, Making Economic Sense, 2nd ed. (Ludwig von Mises Institute, 2006), 189–92.
149.
Rosen, Brandeis, 15.
150.
Ibid., 6.
151.
Ibid., 13–14.
152.
Murray N. Rothbard, Anatomy of the State (Ludwig von Mises Institute [1974] 2009), 30.
153.
Ibid., 31.
154.
Ibid., 31–32.
155.
Ibid., 32.
156.
Ibid., 33–34.
157.
Ibid., 34.
158.
Ibid.
159.
Ibid., 37.
160.
Ibid., 38.
161.
See generally ibid., 40–43 (“in a sense, [Rothbard’s ] position is the reverse of the Marxist dictum that the State is the ‘executive committee’ of the ruling class in the present day”).
162.
See generally ibid., 37–43 (citing John C. Calhoun, A Disquisition on Government [1953], 25–27).
163.
Ibid., 40.
164.
Ibid.
165.
Ibid.
166.
“It was Murray N. Rothbard who developed the coherent, consistent, and rigorous system of thought—out of classical liberalism, American individualist anarchism, and Austrian economics—that he called anarcho-capitalism.” Llewellyn H. Rockwell Jr., “Can Anarcho-Capitalism Work?,” Mises Daily Articles, November 14, 2014.
167.
Rothbard, Anatomy of the State, 48.
168.
Rothbard, For a New Liberty, 282–83.
169.
See Rockwell, “Can Anarcho-Capitalism Work?” (“The utopian dream of ‘limited government’ cannot be realized, since government has no interest in remaining limited. A smaller version of what we have now, while preferable, cannot be a stable, long-term solution”).
170.
See Barnett, Our Republican Constitution, 17; Root, Overruled, 5.
171.
See Larry D. Kramer, “Judicial Supremacy and the End of Judicial Restraint,” California Law Review 100 (2012): 622 (“[I]f we want properly to understand the rise and fall of restraint in the sense Judge Posner means—as a doctrine of deference to other, political decision makers—we must go back further … to the time of the Founding and the origins of judicial review”).
172.
See Ellen Frankel Paul, “Freedom of Contract and the ‘Political Economy’ of Lochner v. New York,” NYU Journal of Law & Liberty 1 (2005): 535 (“Separation of powers between the executive, legislative, and judiciary, with checks and balances built into the system to prevent overweening government or, in the worst case, tyranny, is straight from the classical liberal, Lockean playbook”); see also The Federalist No. 51 (James Madison) (“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own”); Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (Hafner, rev. ed. 1949), 151–52 (articulating separation-of-powers theory).
173.
See, for example, Michael Stachiw, “The Classically Liberal Roberts Court,” NYU Journal of Law and & Liberty 10 (2016): 459 (“In almost Hayekian fashion, the Court has endorsed the view first espoused by Justice Brandeis that the various states serve as fifty ‘laboratories of democracy’ ”).
174.
See Edward A. Purcell Jr., “Learned Hand: The Jurisprudential Trajectory of an Old Progressive,” Buffalo Law Review 43 (1995): 889–96 (detailing how Thayer’s notion of judicial restraint differed from progressive notions of judicial restraint).
175.
See Rosen, Brandeis, 15; see generally F. A. Hayek, The Constitution of Liberty, 73–74 (University of Chicago Press, [1960] 2011); F. A. Hayek, Law, Legislation, and Liberty, Vol. 1 (1973), 13–17; F. A. Hayek, “The Use of Knowledge in Society,” American Economic Review 35 (1945): 519 (explaining the limitations of human knowledge).
176.
See Rosen, Brandeis, 6; see Hayek, The Constitution of Liberty, 73–74; Hayek, Law, Legislation, and Liberty, 13–17; Hayek, “The Use of Knowledge in Society.”
177.
See Rosen, Brandeis, 195.
178.
See, for example, Randy Barnett, The Structure of Liberty (1998), 257.
179.
Ibid., 46–48.
180.
See generally Kramer, “Judicial Supremacy” (comparing Brandeis’s jurisprudence with Jeffersonian anti-federalism).
181.
Ibid., 622.
182.
Ibid., 625–26.
183.
Ibid., 626.
184.
Ibid.
185.
Ibid., 626–27.
186.
Ibid., 627–28.
187.
Mark Pulliam, “The Quandary of Judicial Review,” National Review, April 8, 2015.
188.
See Rosen, Brandeis, 35.
189.
See Kramer, “Judicial Supremacy,” 628.
190.
Ibid.
191.
See Brian C. Murchison, “Interpretation and Independence: How Judges Use the Avoidance Canon in Separation of Powers Cases,” Georgia Law Review 30 (1995): 85, 102.
192.
See Kramer, “Judicial Supremacy,” 628.
193.
See Rosen, Brandeis, 57 (quoting from Brandeis’s former clerk David Riesman).
194.
See generally Kevin McLeod, “The Difference Between an Uncentralized and Centralized Political System,” Classroom, last visited March 13, 2017.
195.
See Jean M. Yarbrough, “Thomas Jefferson and the Social Compact,” in The American Founding and the Social Compact, eds. Ronald J. Pestritto and Thomas G. West ([2003] 2005), 147 (“By virtue of his authorship of the Declaration of Independence, Thomas Jefferson is perhaps the best-known exponent of the social compact theory in America”). The compact theory is embodied in the Virginia and Kentucky Resolutions, which Jefferson coauthored with James Madison. Ibid.
196.
See St. George Tucker, View of the Constitution of the United States with Selected Writings (1803).
197.
Saul Cornell, The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788–1828 (University of North Carolina Press 1999), 239 (“Taylor took an important step toward the creation of a compact theory of federalism[.] … Taylor moved from a fairly abstract theory of states’ rights federalism to a concrete assertion of what would become the core doctrine of the compact theory of states’ rights”); see also John Taylor, Construction Construed, and Constitutions Vindicated (1820); John Taylor, Tyranny Unmasked (1822); see also Andrew C. Lenner, “John Taylor and the Origins of American Federalism,” Journal of the Early Republic 17, no. 3 (1997): 399.
198.
See Abel Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (1840); Abel Upshur, An Exposition of the Virginia Resolutions of 1798 (1833).
199.
See Thomas E. Woods, Nullification: How to Resist Federal Tyranny in the 21st Century (Regnery, 2010), 55, 84, 88–89, 94, 102, 113, 133; Donald Livingston, “The Secession Tradition in America,” in Secession, State & Liberty, ed. David Gordon (Transaction, 1998), 19; Donald Livingston, “The Very Idea of Secession,” Society 35 (1998): 40–48; Joseph R. Stromberg, “Republicanism, Federalism, and Secession in the South, 1790–1865,” in Secession, State & Liberty, ed. David Gordon (Transaction, 1998), 110–11.
200.
Rosen, Brandeis, 6.
201.
Ayn Rand, Atlas Shrugged (1957), 199, 618.
202.
The notes contain articles on Brandeis (or pertaining to Brandeis) published in Alabama Law Review; see Rosen, Brandeis, 213. For an article from Yale Law Journal, see Rosen, Brandeis, 215. For an article from Fordham Law Review, see Rosen, Brandeis, 222. For an article from Mississippi Law Journal, see Rosen, Brandeis, 229. For an article from the Tennessee Law Review, see Rosen, Brandeis, 238. The peer-reviewed articles referenced in the final pages of the book pertain not to Brandeis but to general matters of economics.
203.
See Rosen, Brandeis, 184–208.
204.
Ibid., 43.
205.
Ibid., 47. Brandeis “insisted that the state might have to break up large corporations … in order to guarantee industrial democracy.” Ibid., 51.
206.
See ibid., 62–77. Rosen attempts to smooth out this tension in Brandeis’s thought, or at least in his portrayal of Brandeis’s thought, by suggesting that “Brandeis’s most important contribution as a political economist, like Jefferson, was to view economics in democratic and ultimately constitutional terms.” Ibid., 77. He adds that “Brandeis, like the framers of the Constitution, understood that a relentless focus on efficiency is the surest way to destroy liberty. And like Madison and Jefferson, he wanted to maximize the number of independent citizens in society—citizens, that is, in control of their economic destiny.” Ibid.
207.
See, for example, ibid., 194–95.
208.
Ibid., 106.
209.
Ibid., 166–67. Rosen later emphasizes that Brandeis’s notion of cooperative ownership does not include a social safety net; see ibid., 172, but the difficulty of synthesizing cooperative ownership with libertarianism remains.
210.
Ibid., 86. The context for this dismissal involves Brandeis’s views on government price controls.
211.
Ibid., 41–42.
212.
Ibid., 100.
213.
Ibid., 193.
214.
Ibid., 58.
215.
Ibid., 120.
216.
Ibid., 51.
217.
Ibid., 195.
218.
Ibid., 166–67.
219.
Ibid., 12.
220.
Ibid., 182.

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Thomas Goode Jones School of Law, Faulkner University, Montgomery, AL, USA
Allen Mendenhall

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Allen Mendenhall
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Mendenhall, A. (2020). Justice Brandeis as Jeffersonian Jurist. In: The Three Ps of Liberty. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-39605-3_8

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DOI: https://doi.org/10.1007/978-3-030-39605-3_8
Published: 13 March 2020
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-39604-6
Online ISBN: 978-3-030-39605-3
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