"In the
exercise
of this high power, we must
be ever on our guard, lest we erect our prejudices into
legal principles.
be ever on our guard, lest we erect our prejudices into
legal principles.
Louis Brandeis - 1914 - Other People's Money, and How Bankers Use It
org/access_use#pd-google
? PROPHET AND STATESMAN xxvii
the Legislature was marked by one of the bitterest
fights ever witnessed on Beacon Hill. "
There is nothing fundamentally surprising in such
a fight. Those who opposed the idea were protecting
something they desired to keep--a privilege of their
own,--just as those who endeavored to prevent con-
firmation to the Supreme Court were right when they
believed the presence of Brandeis on that court would
be a menace to their view. The saving in the cost
of insurance is by no means restricted to the dif-
ference between the cost of one system and the cost of
a better system. There must be reckoned also the
savings brought about by the degree to which the
better system has, by its competition, forced better
terms from the weekly premium insurance companies
--as contrasted with the fact that before the Bran-
deis innovation the conditions of the policy-holders
in the weekly premium companies, for a quarter of a
century, instead of being made more favorable, had
several times been made even more unfavorable.
One line of attack was that people would not
voluntarily seek insurance; they would not take it
out at all if the expensive system of soliciting should
be done away with. The answer is that in thirty-six
months ending October 31, 1931, there was sold
strictly over the counter, in Massachusetts Savings
Banks, insurance to the amount of $29,726,417,
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? xxviii
FOREWORD
representing a steady growth that gives every promise
of continuing. It may never become huge; only the
future can answer; but the point, for the Brandeis
philosophy, is that it is sound.
Another argument was that only bad risks, which
the regular companies would reject, would go to the
Savings Banks. The answer is that the mortality
rate among the subscribers to the Savings Bank In-
surance has been consistently less than that of sub-
scribers in the regular companies. In 1931 a record
of 39. 43% of the expected in the Savings Bank In-
surance is to be set against 63. 48% for the insurance
companies, in their regular business, and 59. 50% in
the weekly premium business.
How familiar, in many fields, is this other argu-
ment brought against the Brandeis insurance plan:
that because of limited opportunity for investment
the savings banks could not earn as high a rate of
interest! The average net rate of income earned on
the investment of the insurance departments has been
uniformily higher than that earned by the insurance
companies; in 1931, 5. 12% as against 4. 91%.
Cost would inevitably be higher? The net cost is
on the average 26% less than in the insurance com-
panies, on their ordinary policies, and 50% less than
on the weekly premium policies.
One more prophecy was made--that the lapses
would be heavy. In 1931 they represented 1. 24%
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? PROPHET AND STATESMAN xxix
of the number of policies written that year, as con-
trasted with a ratio of 35. 75% for the companies in
ordinary business, and 76. 18% for those in the
weekly premium field.
If, as seems to me, the question of size is one of
the primary concepts of our philosopher, we must
distinguish--and this is of the first importance--be-
tween size on its merely money-making aspect and
size as an influence on human life.
"Already," he said, back in 1911, "the displace-
ment of the small independent business man by the
huge corporation with its myriad of employees, its
absentee ownership, and its financial control, presents
a grave danger to our democracy. The social loss is
great; and there is no economic gain. "
Eighteen years later, dissenting in Frost v. Corpo-
ration Commission, discussing cooperative organiza-
tions run by farmers, he declared: "Besides promot-
ing the financial advantage of the participating
farmers they seek through cooperation to socialize
their interests--to require an equitable assumption
of responsibilities while assuring an equitable dis-
tribution of benefits. Their aim is economic democ-
racy on lines of liberty, equality and fraternity. "
Before a Senate committee, before he went on the
bench, Mr. Brandeis said: "If we are to work out a
satisfactory system of profit-sharing as a means of
reconciling capital and labor, it can only be done by
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? XXX
FOREWORD
reducing the return to capital and the purveyors of
capital and letting the people who do the work, be
they managers, the skilled handicraftmen, or day la-
borers, take all that is earned above a reasonable re-
turn on the capital invested. "
And before the United States Commission on In-
dustrial Relations: "Society and labor should de-
mand continuity of employment, and when we once
get to a point where working men are paid through-
out the year, as the officers of a corporation are paid
throughout the year, everyone will recognize that a
business cannot be run profitably unless you keep it
running, because if you have to pay, whether your
men are working or not, your men will work. "
When, exploring the principles of Justice Brandeis,
we say that every business, every institution, has a
unit of greatest efficiency, from which a departure to
less size or greater is a decrease in efficiency, we are
not using the word efficiency as if the business existed
in a vacuum. We are talking about it--if we under-
stand the Brandeis philosophy--as part of a social or-
ganism; and it is inefficient, socially considered, if
it injures the whole. Even, therefore, if it makes for
itself more money than a smaller unit, it may be a
social liability where the smaller business or institu-
tion is a social asset. Frequently size gives power,
and power that no business ought, for the general wel-
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? PROPHET AND STATESMAN xxxi
fare, to have. There is no yard-stick We need to
study each type of institution separately.
Here is a central truth, of the gravest moment.
The efficient small unit lives. The inefficient small
unit dies. On the other hand, a big unit such as the
United States Steel Corporation or New York's two
giant banks may, through the mere ramifications of
its influence, possess inherent advantages to offset
economic losses incident to overgrowth
The essential difference between British and Cana-
dian banks, on the one hand, and American banks,
on the other, is not in size. The difference that is
essential is partly in the branch-bank system, which
is entirely different from the so-called branches of the
big New York banks, which are mere stations for the
receipt and withdrawal of deposits; but it is still more
in the tradition behind the banks, which goes to the
root of everything. It is true that some of our banks
are too small,--for a unit may be too small for the
purpose, as well as too large; and such banks account
for a large portion of the failures; $25,000 for ex-
ample is an absurd capital for a bank
Illustrating the point that the size that is most
efficient may be large or small, according to the nature
of the business and the attention required, we might
choose the postal service, the function of which is
uniform and simple, not calling for a great deal of
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? xxxii
FOREWORD
individual judgment; therefore an efficient postal
service may be a large unit; although our own is not
efficient.
Of the great figures of our time who have seen the
values of life in general harmony with Justice Bran-
deis one was President Wilson. That he was acutely
aware of the importance of financial evils of our
system, and trusted particularly Brandeis's way of
thinking about them, was shown in many ways: those
who wish to know the part taken by Brandeis in the
final decisions about the Federal Reserve Act will
find the documents in the latest volume of Ray Stan-
nard Baker's "Life and Letters of Woodrow Wilson. "
The President's appreciation and confidence con-
tinued to the end of his life. Even after his break-
down he was accustomed to seek advice from the
Justice on matters of world and national consequence.
Indeed this belief of Wilson in the wisdom of Bran-
deis was whispered about, until it became a fantastic
fable, so that when Henry Ford was at the height of
his mania about the Jews the "investigators" who
were on his salary list concocted for the Detroit me-
chanic a story that a secret telephone led from the
office of the President to the office of the Justice, for
consultation on matters of world-policy. The folk-
tale is a grotesque shadow cast by the truth about the
harmony of the two believers in freedom; and I like
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? PROPHET AND STATESMAN xxxiii
to think of that harmony along with the picture of
Holmes and Brandeis strolling through the streets of
Washington, and discoursing with Socratic depth.
In this hook, as any careful reader will see, Bran-
deis works out with mastery and care one series of
related ideas that were also dear to Wilson, and helped
much to arouse his interest in the hrilliant lawyer:
the series of central ideas about the money oligarchy
as brought about through consolidation and interlock-
ing directorates; its inefficiency and disloyalty in
management; the losses caused by it to small inves-
tors; its extortions from the public. Since the first
edition appeared interlocking directorates have been
in part abolished. It ought not to be difficult to take
the next steps of selling state and municipal bonds
direct to the public, and perhaps railroad bonds.
To promote the smaller industrial units, for effi-
ciency, for social justice and welfare, and for liberty,
is of course a far more complex evolution. A de-
mocracy must grow, but it may learn from other
forms of government, and Justice Brandeis was
keenly interested when, in 1932, he read that the
Budget Committee of the Italian Chamber of Depu-
ties had reported against huge amalgamations, except
in unusual cases, on the ground that they were largely
the product of banker management and credit infla-
tion, and because: "Their very size has been a draw-
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? xxxiv
FOREWORD
back to them. Men fitted to manage such mammoth
concerns are extremely rare. Moreover the huge
scale on which they work leads them to open factories
in different parts of the country. And the man at
the head loses personal contact with the business he
is managing. "
Of the Justice's Court opinions that reflect the
belief in experiment, and in the smaller units within
our national form of government, making experiment
easier and less expensive, none has attracted more
attention than the dissent delivered in 1932, in which
he contended that the State of Oklahoma has a con-
stitutional right to control the manufacture and sale
of ice. Behind this question of constitutional law
obviously lies a political problem that will long be
with us, regarding the wisdom of regulating produc-
tion and distribution by political action. It was
because the peril of unregulated competition is1
recognized that the dissent aroused much approval.
Justice Stone concurred.
"Whether the local conditions," said the dissent,
"are such as to justify converting a private business
into a public one is a matter primarily for the deter-
mination of the state legislatura . . . The transporta-
tion, storage and distribution of a great part of the
nation's food supply is dependent upon a continuous
and dependable supply of ice. Were it not for re-
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? PROPHET AND STATESMAN xxxv
frigeration, the market for perishable foodstuffs, in
warm seasons, would be limited in area to a few miles
and in time to a few days or even hours. . . . We
cannot say that the legislature of Oklahoma acted ar-
bitrarily in declaring that ice is an article of primary
necessity, in industry and agriculture as well as in
the household, partaking of the fundamental character
of electricity, gas, water, transportation and com-
munication. "
Justice Brandeis is not a socialist, but he may well
seem a dangerous socialist to rigid minds that think
the way to meet economic emergencies is for the pos-
sessing class to sit firmly on its haunches. What
should the majority think of language such as this:
"The need of some remedy for the evil of destructive
competition. . . had been and was widely felt"? And
what could be more alarming than this: "The notion
of a distinct category of business 'affected with a
public interest,' employing property 'devoted to a
public use,' rests upon historical error. . . . In my
opinion, the true principle is that the State's power
extends to every regulation of any business reasonably
required and appropriate for the public protection"?
Can this problem fail to be one of the solemn respon-
sibilities of our children; and shall the required
adaptation be made in glad experiment, or in bitter
turmoil?
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? xxxvi
FOREWORD
Of this remarkable opinion the passages most
widely discussed by the general public were these:
"The people of the United States are now confronted
with an emergency more serious than war. Misery is
widespread, in a time, not of scarcity, but of over-
abundance. The long-continued depression has
brought unprecedented unemployment, a catastrophic
fall in commodity prices and a volume of economic
loss which threatens our financial institutions. Some
people believe that the existing conditions threaten
even the stability of the capitalistic system. "
"Business men are seeking possible remedies. Most
of them realize that failure to distribute widely the
profits of industry has been a prime cause of our pres-
ent plight. But rightly or wrongly, many persons
think that one of the major contributing causes has
been unbridled competition. " And this! "Increas-
ingly, doubt is expressed whether it is economically
wise, or morally right, that men should be permitted
to add to the producing facilities of an industry which
is already suffering from over-capacity. " This opin-
ion, he goes on to say, applies to industry in general;
that it has become capable of producing from 30 to
100% more than was consumed even in days of
vaunted prosperity. "And some thoughtful men of
wise business experience insist that all projects for
stabilization and proration must prove futile unless,
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? PROPHET AND STATESMAN xxxvii
in some way, the equivalent of the certificate of public
convenience and necessity is made a prerequisite to
embarking new capital in an industry in which the
capacity already exceeds the production schedules. "
Justice Brandeis says that the objections to this
view are grave. The remedy might be worse than the
disease. "The obstacles to success seem insuperable.
The economic and social sciences are largely un-
charted seas. We have been none too successful in
the modest essays in economic control already entered
upon. The new proposal involves a vast extension of
the area of control. Merely to acquire the knowledge
essential as a basis for the exercise of this multitude
of judgments would be a formidable task; and each
of the thousands of these judgments would call for
some measure of prophecy. Even more serious are
the obstacles to success inherent in the demands which
execution of this project would make upon human
intelligence and upon the character of men. "
Yet we must experiment. Men used to say, "it is
as impossible as flying. " In the physical sciences the
value of trial and error is proven. "There must be
power in the States and the Nation to remold,
through experimentation, our economic practices and
institutions to meet changing social and economic
needs To stay experimentation in things social
and economic is a grave responsibility. Denial of the
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? xxxviii
FOREWORD
right to experiment may be fraught with serious con-
sequences to the Nation. "
The end has much feeling. Happy are we in the
United States that a single courageous state may act
as a laboratory, and make trial of ideas without risk
to the rest of the country. "The court has power to
prevent an experiment. " It has the power on dubious
interpretation of a clause in the constitution, but it
has it.
"In the exercise of this high power, we must
be ever on our guard, lest we erect our prejudices into
legal principles. If we would guide by the light of
reason, we must let our minds be bold. "
Followers of Justice Brandeis know that for a long
time he has prophesied that, barring some unexpected
development in the supply of gold, there must come a
time when prices would begin to fall; that this period
of decline would be of considerable duration; and that
it would be dangerous if we did not prepare for it.
Dissenting, in 1923, with Mr. Justice Holmes (in
the case of S. W. Tel. Co. v. Pub. Serv. Comm. ),
Mr. Justice Brandeis penned some sentences which
may be scanned by those who wish to measure the
distance that separates the occasional true prophet
from the horde of financial money-seekers by whom
we were misled. The Justice said: "Engineers testi-
fying in recent cases have assumed that there will be
a new plateau of prices. In Galveston Electric Co.
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? PROPHET AND STATESMAN xxxix
v. Galveston, 258 TJ. S. 388, the company contended
that a plateau 70 per cent. above the price level of
1914 should be accepted, and a plateau of 33% per
cent. above was found probable by the master and
assumed to be such by the lower court. In Bluefield
Water Works and Improvement Co. v. Public Service
Commission, 679, post. one 50 per cent. above the
1914 level was contended for; in the case at bar a
plateau 25 per cent. above. But for the assumption
that there will be a plateau there is no basis in
American experience. The course of prices for the
last 112 years indicates, on the contrary, that there
may be a practically continuous decline for nearly a
generation; that the present price level may fall to
that of 1914 within a decade; and that, later, it may
fall much lower. Prices rose steadily (with but
slight and short recessions) for the 20 years before
the United States entered the World War. From the
low level of 1897 they rose 21 per cent. to 1900; then
rose further (with minor fluctuations, representing
times of good business or bad) and reached in 1914
a point 50 per cent. above the 1897 level. Then the
great rise incident to the war set in. 'Wholesale
Prices, 1890 to 1921,' U. S. Department of Labor,
Bureau of Labor statistics, Bulletin No. 320, pp.
9-26. These are averages of the wholesale prices of
all commodities. In the Bureau chart the 1913
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? FOREWORD
prices are taken as the datum line (100). As com-
pared with them the 1897 level was 67, the 1800
level 81. The chart on page 10 of the pamphlet
entitled TPrice Changes and Business Prospects,'
published by the Cleveland Trust Company, gives
price fluctuations for the 110 years prior to 1921.
It shows three abrupt rises in the price level by
reason of war; and some less abrupt falls, by reason
of financial panic. These may be called normal.
But the normal has never been a plateau. The chart
shows that the peak price levels were practically the
same during the War of 1812, the Civil War, and
the World War; and it shows that practically con-
tinuous declines, for about 30 years, followed the
first two wars. The experience after the third may
be similar. "
Among the tributes to the Justice, on the occasion
of his seventy-fifth birthday, was one in the Yale Law
Review for November, 1931, in which Mr. Max
Lerner said: "Whatever Mr. Justice Brandeis might
or might not be expected to do, he could not be ex-
pected to cleave to the tradition that the whole duty
of a Supreme Court justice was to maintain a decent
ignorance of the world outside the court. " In this
same discussion it is observed: "A more sardonic
mind might have concluded that amidst an economic
welter such as ours government can at best create an
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? PROPHET AND STATESMAN xli
illusion for us and clothe with some semblance of
order what are really the workings of chance and
chaos. But Mr. Justice Brandeis, with his sense of
the need of man's mastering economic circumstance,
is interested even as a judge in the gigantic struggle
we are waging here to subjugate every natural and
human resource and return it to the uses of the nation
And it is that which makes him our most important
contemporary statesman.
"Within the framework of the present economic
system Mr. Justice Brandeis' stand is for a coura-
geous and enlightening meliorism strange and new to
the traditions and convictions of the Supreme Court.
He would soften the asperities of capitalism, human-
ize its rough competitive struggle, endow it with re-
sponsibility as well as with vigor. Mastering the
field of social legislation he has made it practically
his own. . . . Mr. Justice Brandeis' intellectual
creed, although always clear-cut and decisive, con-
tains that admirable balancing of tradition and inno-
vation which represents the greatest assurance of
eventual success. . . . His realistic method of shift-
ing the battle from the barren ground of precedent
and logic to the higher ground of social function and
social situation must prove an enduring contribution
to the process of constitutional interpretation. "
The tributes for this birthday anniversary included
one in the University of Pennsylvania Law Review
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? xlii
FOREWORD
for April, 1932, by Professor Alfred T. Mason, of
Princeton University, who spoke first of the pro-
phetic insight shown by Mr. Brandeis before he was
named by Wilson for the court,--as in labor, trusts,
railroads, insurance, finance,--and then went on:
"His liberal views on social and economic issues and
his methods of approach were already well known.
His ideas on public questions, no less than his methods
of brief-making, ran absolutely counter to the smug,
conventional constitutionalism of the American bar.
Thus there was obvious danger in appointing to the
highest court a man so thoroughly grounded in the
intricacies and complexities of modern business; a
man who looked at industrial problems from the point
of view of the public and of the employee; and one,
moreover, who would probably continue to press on
beyond the bounds of legal technicality and judicial
precedent to the realms of fact and reality. The
fears of those who on these grounds opposed his ap-
pointment were proved genuine. "
As an example of differences of mentality, Pro-
fessor Mason selects a case that came up soon after
Justice Brandeis took his seat on the court, in which
the majority opinion, delivered by Mr. Justice Mc-
Reynolds, characteristically paid no attention to the
reason for which employment agencies exist, or the
grounds on which the State of Washington forbade
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? PROPHET AND STATESMAN xliii
their taking fees from workers. Justice Brandeis,
dissenting, laid down clearly a doctrine that is revolu-
tionary: "Whether a measure relating to the public
welfare is arbitrary or unreasonable, whether it has
no substantial relation to the end proposed, is obvi-
ously not to be determined by assumptions or by a
priori reasoning. The judgment should be deter-
mined upon a consideration of relevant facts--Ex
facto jus oritur. That ancient rule must prevail in
order that we may have a system of living law. "
Obviously Mr. Justice Brandeis was not reaching
a conclusion in the way a legislator in the State of
Washington ought to reach a conclusion. The legis-
lator should weigh the considerations for and against
the law proposed, and decide on the preponderance
of injury and benefit, as forecast by him, whereas
the duty of the judge was merely to understand the
conclusion reached by the legislator and decide
whether or not he could affirm it to be wholly beyond
the bounds of reason. The dissent affirmed: "The
problem which confronted the people of Washington
was far more comprehensive and fundamental than
that of protecting workers applying to the private
agencies. It was the chronic problem of unemploy-
ment--perhaps the gravest and most difficult problem
of modern industry. . . . Students of the larger prob-
lem of unemployment appear to agree that establish-
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? xliv
FOREWORD
ment of an adequate system of employment offices or
labor exchanges is an indispensable first step toward
its solution. There is reason to believe that the people
of Washington not only considered the collection by
the private employment offices of fees from employees
a social injustice; but that they considered the elim-
ination of the practice a necessary preliminary to the
establishment of a constructive policy for dealing
with the subject of unemployment"
In the famous Duplex Printing case, the diver-
gence between the majority and the dissent is similar.
Mr. Justice Pitney, delivering the opinion of the
court, held that a union had no right to intervene in
the fight of another union, but that their right to
strike was confined to disputes arising out of "terms
or conditions of their own employment, past, present,
or prospective. "
What the Brandeis dissent does is to show that the
strikers have an actual and immediate and traceable
interest in the other strike, because there are only
four companies manufacturing printing presses in
the country, and: "the contest between the company
and the machinists' union involves vitally the interest
of every person whose cooperation is sought May
not all with a common interest join in refusing to ex-
pend their labor upon articles whose very production
constitutes an attack upon their standard of living
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? PROPHET AND STATESMAN xlv
and the institution which they are convinced sup-
ports it? "
It was a little more than five years after his appear-
ance on the tribunal that Justice Brandeis dissented
in the famous case of Truax versus Corrigan, saying:
"The divergence of opinion in this difficult field of
governmental action should admonish us not to de-
clare a rule arbitrary and unreasonable merely be-
cause we are convinced that it is fraught with danger
to the public weal, and thus to close the door to ex-
periment within the law. . . . Nearly all legislation
involves a weighing of relative social values. Since
government is not an exact science, prevailing public
opinion concerning the evils and the remedy is among
the important facts deserving consideration; partic-
ularly when the public conviction is both deep-seated
and wide-spread and has been reached after deliber-
ation. "
Taking this view of the relevancy and importance
of public opinion the Justice went on to cite, as of
important bearing, the view widely held in the United
States that "the law of property was not appropriate
for dealing with the forces beneath social unrest;
that in this vast struggle it was unwise to throw the
power of the State on one side or the other according
to principles deduced from that law; that the prob-
lem of the control and conduct of industry demanded
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? xlvi
FOREWORD
a solution of its own. "
Conservatives and radicals alike should take note
that Justice Brandeis is not allowing to labor what
he denies to capital. He has favored the incorpora-
tion of unions and the holding of the unions respon-
sible for the acts of their members. "We gain
nothing," he said, "by exchanging the tyranny of
capital for the tyranny of labor. " Some of those who
have in general followed Brandeis have been shocked
when they found him for freedom against the domina-
tion of any class whatever.
In all the Brandeis prophecies it is to be seen that
there is no fatalism; nothing so useless to man as a
mere foretelling of evil about which nothing can be
done; but always a vision ahead of some human
choice, error pointing toward disaster, deterioration,
or lost opportunity, wisdom indicating the possibili-
ties of man. It is a far cry from the mind of Jus-
tice Brandeis to that of Hilaire Belloc, yet Mr. Belloe
also is a crusader against mechanical size and pace,
where they impinge on the spirit, and the last lines
of this excerpt, from an essay published in 1932,
might almost have been written by the Justice, and
certainly well express that part of the world-spirit
that now struggles to dominate the machine of its own
creation: "We must, in the economic sphere, fight not
for greater collectivity of property but, on the con-
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? PROPHET AND STATESMAN xlvii
trary, for greater distribution of it, for the small unit
against the large one, for the self-governing guild
against the merger and the combine. And these
things we must do because the opposite policy--that
which we have been pursuing too long--leads rapidly
to death. "
If we were to pause to select from our prophet the
messages that seem most basic and most urgent, might
they not be expressed like this? :
1. Things may be too big. Size itself may crush
the spirit of man. In moderation, in chosen limita-
tion, wisdom lives.
2. Cling to what the past teaches; remembering,
however, that the past teaches the inevitability and
the need of change, of growth. Be not afraid, but
march forward to meet the new and mold it to the
ideal. Use it, welcome it with a cheer, but control it,
that no material gain shall exact the price of a soul-
decline.
3. Bealize that the best requires labor, reflection,
care, study of desired ends and of means. Merely
saying "Lord, Lord," is not enough. The spirit that
beckons is strenuous. Justice Brandeis has been
troubled not a little by observing that we as a nation
give little thought to things that form the bottom.
On the first of these key-ideas the Justice has made,
more than once, in private conversation a suggestion
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? PROPHET AND STATESMAN xxvii
the Legislature was marked by one of the bitterest
fights ever witnessed on Beacon Hill. "
There is nothing fundamentally surprising in such
a fight. Those who opposed the idea were protecting
something they desired to keep--a privilege of their
own,--just as those who endeavored to prevent con-
firmation to the Supreme Court were right when they
believed the presence of Brandeis on that court would
be a menace to their view. The saving in the cost
of insurance is by no means restricted to the dif-
ference between the cost of one system and the cost of
a better system. There must be reckoned also the
savings brought about by the degree to which the
better system has, by its competition, forced better
terms from the weekly premium insurance companies
--as contrasted with the fact that before the Bran-
deis innovation the conditions of the policy-holders
in the weekly premium companies, for a quarter of a
century, instead of being made more favorable, had
several times been made even more unfavorable.
One line of attack was that people would not
voluntarily seek insurance; they would not take it
out at all if the expensive system of soliciting should
be done away with. The answer is that in thirty-six
months ending October 31, 1931, there was sold
strictly over the counter, in Massachusetts Savings
Banks, insurance to the amount of $29,726,417,
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? xxviii
FOREWORD
representing a steady growth that gives every promise
of continuing. It may never become huge; only the
future can answer; but the point, for the Brandeis
philosophy, is that it is sound.
Another argument was that only bad risks, which
the regular companies would reject, would go to the
Savings Banks. The answer is that the mortality
rate among the subscribers to the Savings Bank In-
surance has been consistently less than that of sub-
scribers in the regular companies. In 1931 a record
of 39. 43% of the expected in the Savings Bank In-
surance is to be set against 63. 48% for the insurance
companies, in their regular business, and 59. 50% in
the weekly premium business.
How familiar, in many fields, is this other argu-
ment brought against the Brandeis insurance plan:
that because of limited opportunity for investment
the savings banks could not earn as high a rate of
interest! The average net rate of income earned on
the investment of the insurance departments has been
uniformily higher than that earned by the insurance
companies; in 1931, 5. 12% as against 4. 91%.
Cost would inevitably be higher? The net cost is
on the average 26% less than in the insurance com-
panies, on their ordinary policies, and 50% less than
on the weekly premium policies.
One more prophecy was made--that the lapses
would be heavy. In 1931 they represented 1. 24%
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? PROPHET AND STATESMAN xxix
of the number of policies written that year, as con-
trasted with a ratio of 35. 75% for the companies in
ordinary business, and 76. 18% for those in the
weekly premium field.
If, as seems to me, the question of size is one of
the primary concepts of our philosopher, we must
distinguish--and this is of the first importance--be-
tween size on its merely money-making aspect and
size as an influence on human life.
"Already," he said, back in 1911, "the displace-
ment of the small independent business man by the
huge corporation with its myriad of employees, its
absentee ownership, and its financial control, presents
a grave danger to our democracy. The social loss is
great; and there is no economic gain. "
Eighteen years later, dissenting in Frost v. Corpo-
ration Commission, discussing cooperative organiza-
tions run by farmers, he declared: "Besides promot-
ing the financial advantage of the participating
farmers they seek through cooperation to socialize
their interests--to require an equitable assumption
of responsibilities while assuring an equitable dis-
tribution of benefits. Their aim is economic democ-
racy on lines of liberty, equality and fraternity. "
Before a Senate committee, before he went on the
bench, Mr. Brandeis said: "If we are to work out a
satisfactory system of profit-sharing as a means of
reconciling capital and labor, it can only be done by
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? XXX
FOREWORD
reducing the return to capital and the purveyors of
capital and letting the people who do the work, be
they managers, the skilled handicraftmen, or day la-
borers, take all that is earned above a reasonable re-
turn on the capital invested. "
And before the United States Commission on In-
dustrial Relations: "Society and labor should de-
mand continuity of employment, and when we once
get to a point where working men are paid through-
out the year, as the officers of a corporation are paid
throughout the year, everyone will recognize that a
business cannot be run profitably unless you keep it
running, because if you have to pay, whether your
men are working or not, your men will work. "
When, exploring the principles of Justice Brandeis,
we say that every business, every institution, has a
unit of greatest efficiency, from which a departure to
less size or greater is a decrease in efficiency, we are
not using the word efficiency as if the business existed
in a vacuum. We are talking about it--if we under-
stand the Brandeis philosophy--as part of a social or-
ganism; and it is inefficient, socially considered, if
it injures the whole. Even, therefore, if it makes for
itself more money than a smaller unit, it may be a
social liability where the smaller business or institu-
tion is a social asset. Frequently size gives power,
and power that no business ought, for the general wel-
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? PROPHET AND STATESMAN xxxi
fare, to have. There is no yard-stick We need to
study each type of institution separately.
Here is a central truth, of the gravest moment.
The efficient small unit lives. The inefficient small
unit dies. On the other hand, a big unit such as the
United States Steel Corporation or New York's two
giant banks may, through the mere ramifications of
its influence, possess inherent advantages to offset
economic losses incident to overgrowth
The essential difference between British and Cana-
dian banks, on the one hand, and American banks,
on the other, is not in size. The difference that is
essential is partly in the branch-bank system, which
is entirely different from the so-called branches of the
big New York banks, which are mere stations for the
receipt and withdrawal of deposits; but it is still more
in the tradition behind the banks, which goes to the
root of everything. It is true that some of our banks
are too small,--for a unit may be too small for the
purpose, as well as too large; and such banks account
for a large portion of the failures; $25,000 for ex-
ample is an absurd capital for a bank
Illustrating the point that the size that is most
efficient may be large or small, according to the nature
of the business and the attention required, we might
choose the postal service, the function of which is
uniform and simple, not calling for a great deal of
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? xxxii
FOREWORD
individual judgment; therefore an efficient postal
service may be a large unit; although our own is not
efficient.
Of the great figures of our time who have seen the
values of life in general harmony with Justice Bran-
deis one was President Wilson. That he was acutely
aware of the importance of financial evils of our
system, and trusted particularly Brandeis's way of
thinking about them, was shown in many ways: those
who wish to know the part taken by Brandeis in the
final decisions about the Federal Reserve Act will
find the documents in the latest volume of Ray Stan-
nard Baker's "Life and Letters of Woodrow Wilson. "
The President's appreciation and confidence con-
tinued to the end of his life. Even after his break-
down he was accustomed to seek advice from the
Justice on matters of world and national consequence.
Indeed this belief of Wilson in the wisdom of Bran-
deis was whispered about, until it became a fantastic
fable, so that when Henry Ford was at the height of
his mania about the Jews the "investigators" who
were on his salary list concocted for the Detroit me-
chanic a story that a secret telephone led from the
office of the President to the office of the Justice, for
consultation on matters of world-policy. The folk-
tale is a grotesque shadow cast by the truth about the
harmony of the two believers in freedom; and I like
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? PROPHET AND STATESMAN xxxiii
to think of that harmony along with the picture of
Holmes and Brandeis strolling through the streets of
Washington, and discoursing with Socratic depth.
In this hook, as any careful reader will see, Bran-
deis works out with mastery and care one series of
related ideas that were also dear to Wilson, and helped
much to arouse his interest in the hrilliant lawyer:
the series of central ideas about the money oligarchy
as brought about through consolidation and interlock-
ing directorates; its inefficiency and disloyalty in
management; the losses caused by it to small inves-
tors; its extortions from the public. Since the first
edition appeared interlocking directorates have been
in part abolished. It ought not to be difficult to take
the next steps of selling state and municipal bonds
direct to the public, and perhaps railroad bonds.
To promote the smaller industrial units, for effi-
ciency, for social justice and welfare, and for liberty,
is of course a far more complex evolution. A de-
mocracy must grow, but it may learn from other
forms of government, and Justice Brandeis was
keenly interested when, in 1932, he read that the
Budget Committee of the Italian Chamber of Depu-
ties had reported against huge amalgamations, except
in unusual cases, on the ground that they were largely
the product of banker management and credit infla-
tion, and because: "Their very size has been a draw-
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? xxxiv
FOREWORD
back to them. Men fitted to manage such mammoth
concerns are extremely rare. Moreover the huge
scale on which they work leads them to open factories
in different parts of the country. And the man at
the head loses personal contact with the business he
is managing. "
Of the Justice's Court opinions that reflect the
belief in experiment, and in the smaller units within
our national form of government, making experiment
easier and less expensive, none has attracted more
attention than the dissent delivered in 1932, in which
he contended that the State of Oklahoma has a con-
stitutional right to control the manufacture and sale
of ice. Behind this question of constitutional law
obviously lies a political problem that will long be
with us, regarding the wisdom of regulating produc-
tion and distribution by political action. It was
because the peril of unregulated competition is1
recognized that the dissent aroused much approval.
Justice Stone concurred.
"Whether the local conditions," said the dissent,
"are such as to justify converting a private business
into a public one is a matter primarily for the deter-
mination of the state legislatura . . . The transporta-
tion, storage and distribution of a great part of the
nation's food supply is dependent upon a continuous
and dependable supply of ice. Were it not for re-
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? PROPHET AND STATESMAN xxxv
frigeration, the market for perishable foodstuffs, in
warm seasons, would be limited in area to a few miles
and in time to a few days or even hours. . . . We
cannot say that the legislature of Oklahoma acted ar-
bitrarily in declaring that ice is an article of primary
necessity, in industry and agriculture as well as in
the household, partaking of the fundamental character
of electricity, gas, water, transportation and com-
munication. "
Justice Brandeis is not a socialist, but he may well
seem a dangerous socialist to rigid minds that think
the way to meet economic emergencies is for the pos-
sessing class to sit firmly on its haunches. What
should the majority think of language such as this:
"The need of some remedy for the evil of destructive
competition. . . had been and was widely felt"? And
what could be more alarming than this: "The notion
of a distinct category of business 'affected with a
public interest,' employing property 'devoted to a
public use,' rests upon historical error. . . . In my
opinion, the true principle is that the State's power
extends to every regulation of any business reasonably
required and appropriate for the public protection"?
Can this problem fail to be one of the solemn respon-
sibilities of our children; and shall the required
adaptation be made in glad experiment, or in bitter
turmoil?
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? xxxvi
FOREWORD
Of this remarkable opinion the passages most
widely discussed by the general public were these:
"The people of the United States are now confronted
with an emergency more serious than war. Misery is
widespread, in a time, not of scarcity, but of over-
abundance. The long-continued depression has
brought unprecedented unemployment, a catastrophic
fall in commodity prices and a volume of economic
loss which threatens our financial institutions. Some
people believe that the existing conditions threaten
even the stability of the capitalistic system. "
"Business men are seeking possible remedies. Most
of them realize that failure to distribute widely the
profits of industry has been a prime cause of our pres-
ent plight. But rightly or wrongly, many persons
think that one of the major contributing causes has
been unbridled competition. " And this! "Increas-
ingly, doubt is expressed whether it is economically
wise, or morally right, that men should be permitted
to add to the producing facilities of an industry which
is already suffering from over-capacity. " This opin-
ion, he goes on to say, applies to industry in general;
that it has become capable of producing from 30 to
100% more than was consumed even in days of
vaunted prosperity. "And some thoughtful men of
wise business experience insist that all projects for
stabilization and proration must prove futile unless,
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? PROPHET AND STATESMAN xxxvii
in some way, the equivalent of the certificate of public
convenience and necessity is made a prerequisite to
embarking new capital in an industry in which the
capacity already exceeds the production schedules. "
Justice Brandeis says that the objections to this
view are grave. The remedy might be worse than the
disease. "The obstacles to success seem insuperable.
The economic and social sciences are largely un-
charted seas. We have been none too successful in
the modest essays in economic control already entered
upon. The new proposal involves a vast extension of
the area of control. Merely to acquire the knowledge
essential as a basis for the exercise of this multitude
of judgments would be a formidable task; and each
of the thousands of these judgments would call for
some measure of prophecy. Even more serious are
the obstacles to success inherent in the demands which
execution of this project would make upon human
intelligence and upon the character of men. "
Yet we must experiment. Men used to say, "it is
as impossible as flying. " In the physical sciences the
value of trial and error is proven. "There must be
power in the States and the Nation to remold,
through experimentation, our economic practices and
institutions to meet changing social and economic
needs To stay experimentation in things social
and economic is a grave responsibility. Denial of the
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? xxxviii
FOREWORD
right to experiment may be fraught with serious con-
sequences to the Nation. "
The end has much feeling. Happy are we in the
United States that a single courageous state may act
as a laboratory, and make trial of ideas without risk
to the rest of the country. "The court has power to
prevent an experiment. " It has the power on dubious
interpretation of a clause in the constitution, but it
has it.
"In the exercise of this high power, we must
be ever on our guard, lest we erect our prejudices into
legal principles. If we would guide by the light of
reason, we must let our minds be bold. "
Followers of Justice Brandeis know that for a long
time he has prophesied that, barring some unexpected
development in the supply of gold, there must come a
time when prices would begin to fall; that this period
of decline would be of considerable duration; and that
it would be dangerous if we did not prepare for it.
Dissenting, in 1923, with Mr. Justice Holmes (in
the case of S. W. Tel. Co. v. Pub. Serv. Comm. ),
Mr. Justice Brandeis penned some sentences which
may be scanned by those who wish to measure the
distance that separates the occasional true prophet
from the horde of financial money-seekers by whom
we were misled. The Justice said: "Engineers testi-
fying in recent cases have assumed that there will be
a new plateau of prices. In Galveston Electric Co.
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? PROPHET AND STATESMAN xxxix
v. Galveston, 258 TJ. S. 388, the company contended
that a plateau 70 per cent. above the price level of
1914 should be accepted, and a plateau of 33% per
cent. above was found probable by the master and
assumed to be such by the lower court. In Bluefield
Water Works and Improvement Co. v. Public Service
Commission, 679, post. one 50 per cent. above the
1914 level was contended for; in the case at bar a
plateau 25 per cent. above. But for the assumption
that there will be a plateau there is no basis in
American experience. The course of prices for the
last 112 years indicates, on the contrary, that there
may be a practically continuous decline for nearly a
generation; that the present price level may fall to
that of 1914 within a decade; and that, later, it may
fall much lower. Prices rose steadily (with but
slight and short recessions) for the 20 years before
the United States entered the World War. From the
low level of 1897 they rose 21 per cent. to 1900; then
rose further (with minor fluctuations, representing
times of good business or bad) and reached in 1914
a point 50 per cent. above the 1897 level. Then the
great rise incident to the war set in. 'Wholesale
Prices, 1890 to 1921,' U. S. Department of Labor,
Bureau of Labor statistics, Bulletin No. 320, pp.
9-26. These are averages of the wholesale prices of
all commodities. In the Bureau chart the 1913
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? FOREWORD
prices are taken as the datum line (100). As com-
pared with them the 1897 level was 67, the 1800
level 81. The chart on page 10 of the pamphlet
entitled TPrice Changes and Business Prospects,'
published by the Cleveland Trust Company, gives
price fluctuations for the 110 years prior to 1921.
It shows three abrupt rises in the price level by
reason of war; and some less abrupt falls, by reason
of financial panic. These may be called normal.
But the normal has never been a plateau. The chart
shows that the peak price levels were practically the
same during the War of 1812, the Civil War, and
the World War; and it shows that practically con-
tinuous declines, for about 30 years, followed the
first two wars. The experience after the third may
be similar. "
Among the tributes to the Justice, on the occasion
of his seventy-fifth birthday, was one in the Yale Law
Review for November, 1931, in which Mr. Max
Lerner said: "Whatever Mr. Justice Brandeis might
or might not be expected to do, he could not be ex-
pected to cleave to the tradition that the whole duty
of a Supreme Court justice was to maintain a decent
ignorance of the world outside the court. " In this
same discussion it is observed: "A more sardonic
mind might have concluded that amidst an economic
welter such as ours government can at best create an
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? PROPHET AND STATESMAN xli
illusion for us and clothe with some semblance of
order what are really the workings of chance and
chaos. But Mr. Justice Brandeis, with his sense of
the need of man's mastering economic circumstance,
is interested even as a judge in the gigantic struggle
we are waging here to subjugate every natural and
human resource and return it to the uses of the nation
And it is that which makes him our most important
contemporary statesman.
"Within the framework of the present economic
system Mr. Justice Brandeis' stand is for a coura-
geous and enlightening meliorism strange and new to
the traditions and convictions of the Supreme Court.
He would soften the asperities of capitalism, human-
ize its rough competitive struggle, endow it with re-
sponsibility as well as with vigor. Mastering the
field of social legislation he has made it practically
his own. . . . Mr. Justice Brandeis' intellectual
creed, although always clear-cut and decisive, con-
tains that admirable balancing of tradition and inno-
vation which represents the greatest assurance of
eventual success. . . . His realistic method of shift-
ing the battle from the barren ground of precedent
and logic to the higher ground of social function and
social situation must prove an enduring contribution
to the process of constitutional interpretation. "
The tributes for this birthday anniversary included
one in the University of Pennsylvania Law Review
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? xlii
FOREWORD
for April, 1932, by Professor Alfred T. Mason, of
Princeton University, who spoke first of the pro-
phetic insight shown by Mr. Brandeis before he was
named by Wilson for the court,--as in labor, trusts,
railroads, insurance, finance,--and then went on:
"His liberal views on social and economic issues and
his methods of approach were already well known.
His ideas on public questions, no less than his methods
of brief-making, ran absolutely counter to the smug,
conventional constitutionalism of the American bar.
Thus there was obvious danger in appointing to the
highest court a man so thoroughly grounded in the
intricacies and complexities of modern business; a
man who looked at industrial problems from the point
of view of the public and of the employee; and one,
moreover, who would probably continue to press on
beyond the bounds of legal technicality and judicial
precedent to the realms of fact and reality. The
fears of those who on these grounds opposed his ap-
pointment were proved genuine. "
As an example of differences of mentality, Pro-
fessor Mason selects a case that came up soon after
Justice Brandeis took his seat on the court, in which
the majority opinion, delivered by Mr. Justice Mc-
Reynolds, characteristically paid no attention to the
reason for which employment agencies exist, or the
grounds on which the State of Washington forbade
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? PROPHET AND STATESMAN xliii
their taking fees from workers. Justice Brandeis,
dissenting, laid down clearly a doctrine that is revolu-
tionary: "Whether a measure relating to the public
welfare is arbitrary or unreasonable, whether it has
no substantial relation to the end proposed, is obvi-
ously not to be determined by assumptions or by a
priori reasoning. The judgment should be deter-
mined upon a consideration of relevant facts--Ex
facto jus oritur. That ancient rule must prevail in
order that we may have a system of living law. "
Obviously Mr. Justice Brandeis was not reaching
a conclusion in the way a legislator in the State of
Washington ought to reach a conclusion. The legis-
lator should weigh the considerations for and against
the law proposed, and decide on the preponderance
of injury and benefit, as forecast by him, whereas
the duty of the judge was merely to understand the
conclusion reached by the legislator and decide
whether or not he could affirm it to be wholly beyond
the bounds of reason. The dissent affirmed: "The
problem which confronted the people of Washington
was far more comprehensive and fundamental than
that of protecting workers applying to the private
agencies. It was the chronic problem of unemploy-
ment--perhaps the gravest and most difficult problem
of modern industry. . . . Students of the larger prob-
lem of unemployment appear to agree that establish-
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? xliv
FOREWORD
ment of an adequate system of employment offices or
labor exchanges is an indispensable first step toward
its solution. There is reason to believe that the people
of Washington not only considered the collection by
the private employment offices of fees from employees
a social injustice; but that they considered the elim-
ination of the practice a necessary preliminary to the
establishment of a constructive policy for dealing
with the subject of unemployment"
In the famous Duplex Printing case, the diver-
gence between the majority and the dissent is similar.
Mr. Justice Pitney, delivering the opinion of the
court, held that a union had no right to intervene in
the fight of another union, but that their right to
strike was confined to disputes arising out of "terms
or conditions of their own employment, past, present,
or prospective. "
What the Brandeis dissent does is to show that the
strikers have an actual and immediate and traceable
interest in the other strike, because there are only
four companies manufacturing printing presses in
the country, and: "the contest between the company
and the machinists' union involves vitally the interest
of every person whose cooperation is sought May
not all with a common interest join in refusing to ex-
pend their labor upon articles whose very production
constitutes an attack upon their standard of living
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? PROPHET AND STATESMAN xlv
and the institution which they are convinced sup-
ports it? "
It was a little more than five years after his appear-
ance on the tribunal that Justice Brandeis dissented
in the famous case of Truax versus Corrigan, saying:
"The divergence of opinion in this difficult field of
governmental action should admonish us not to de-
clare a rule arbitrary and unreasonable merely be-
cause we are convinced that it is fraught with danger
to the public weal, and thus to close the door to ex-
periment within the law. . . . Nearly all legislation
involves a weighing of relative social values. Since
government is not an exact science, prevailing public
opinion concerning the evils and the remedy is among
the important facts deserving consideration; partic-
ularly when the public conviction is both deep-seated
and wide-spread and has been reached after deliber-
ation. "
Taking this view of the relevancy and importance
of public opinion the Justice went on to cite, as of
important bearing, the view widely held in the United
States that "the law of property was not appropriate
for dealing with the forces beneath social unrest;
that in this vast struggle it was unwise to throw the
power of the State on one side or the other according
to principles deduced from that law; that the prob-
lem of the control and conduct of industry demanded
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? xlvi
FOREWORD
a solution of its own. "
Conservatives and radicals alike should take note
that Justice Brandeis is not allowing to labor what
he denies to capital. He has favored the incorpora-
tion of unions and the holding of the unions respon-
sible for the acts of their members. "We gain
nothing," he said, "by exchanging the tyranny of
capital for the tyranny of labor. " Some of those who
have in general followed Brandeis have been shocked
when they found him for freedom against the domina-
tion of any class whatever.
In all the Brandeis prophecies it is to be seen that
there is no fatalism; nothing so useless to man as a
mere foretelling of evil about which nothing can be
done; but always a vision ahead of some human
choice, error pointing toward disaster, deterioration,
or lost opportunity, wisdom indicating the possibili-
ties of man. It is a far cry from the mind of Jus-
tice Brandeis to that of Hilaire Belloc, yet Mr. Belloe
also is a crusader against mechanical size and pace,
where they impinge on the spirit, and the last lines
of this excerpt, from an essay published in 1932,
might almost have been written by the Justice, and
certainly well express that part of the world-spirit
that now struggles to dominate the machine of its own
creation: "We must, in the economic sphere, fight not
for greater collectivity of property but, on the con-
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? PROPHET AND STATESMAN xlvii
trary, for greater distribution of it, for the small unit
against the large one, for the self-governing guild
against the merger and the combine. And these
things we must do because the opposite policy--that
which we have been pursuing too long--leads rapidly
to death. "
If we were to pause to select from our prophet the
messages that seem most basic and most urgent, might
they not be expressed like this? :
1. Things may be too big. Size itself may crush
the spirit of man. In moderation, in chosen limita-
tion, wisdom lives.
2. Cling to what the past teaches; remembering,
however, that the past teaches the inevitability and
the need of change, of growth. Be not afraid, but
march forward to meet the new and mold it to the
ideal. Use it, welcome it with a cheer, but control it,
that no material gain shall exact the price of a soul-
decline.
3. Bealize that the best requires labor, reflection,
care, study of desired ends and of means. Merely
saying "Lord, Lord," is not enough. The spirit that
beckons is strenuous. Justice Brandeis has been
troubled not a little by observing that we as a nation
give little thought to things that form the bottom.
On the first of these key-ideas the Justice has made,
more than once, in private conversation a suggestion
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