The
judgment
should be deter-
mined upon a consideration of relevant facts--Ex
facto jus oritur.
mined upon a consideration of relevant facts--Ex
facto jus oritur.
Louis Brandeis - 1914 - Other People's Money, and How Bankers Use It
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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? xlviii
FOREWORD
that is both fertile and challenging, yet has caused no
discussion, presumably because its creative boldness
places it beyond the vision of the moment; or, to
change the trope, because its sharp divergence from
what we take for granted bars our imaginations from
giving it shelter. Yet no measure urged, over so long
a time, even though it be so far only in conversation,
by our foremost economic prophet, can be assumed to
be unsound. Having established in his faith the tenet
that size in business is an advantage only up to
limits, and then a power for harm, he frequently asks,
should we not tax size? If the objection be made that
such taxation would strike the efficient huge concerns
as well as the inefficient, the answer lies ready to meet
the censure: a huge concern that is efficient can pay
the tax; it is the one that is inefficient that will fall
apart from the added burden. Ford would remain;
the mammoths built by mere combination could thus
be quietly slaughtered. And here we are using the
word efficient in the limited sense of ability to make
money. Believing that great size is a social injury
in far-reaching ways the Justice, as he talks this
matter over, makes what to his mind is a modest pro-
posal. He merely suggests a tax that shall force each
unit above a certain size to meet a tax that shall be
large enough to be a burden for an inefficient mam-
moth, and not for one that is skillful to a high de-
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? PROPHET AND STATESMAN xlix
gree. If Congress should ever lay such a tax, during
the life-time of Justice Brandeis, it is safe to surmise
either that he would write the majority opinion or
that his dissent would he one of his most hrilliant
protests.
It was with some irony that Brandeis, writing in
Harpers Weekly the articles gathered together in
this hook, and showing how the captains of industry
combine themselves into vast wealth and power, com-
ing to the case of George F. Baker, said: "It is not
surprising that Mr. Baker saw little need of new laws.
When asked: 'You think everything is all right as
it is in this world, do you not V
"He answered:
"'Pretty nearly. '"
While I was preparing to write this foreword to
the new edition I talked with various representatives
of the country's financial power. All were interested,
and all were courteous, hut in their outlook sharply
various.
Of each, in the course of conversation, I asked
questions about like these:
"Since Mr. Brandeis made his analysis of the
faults of banking, sixteen years ago, to what extent
have the basic conditions altered?
"Is the money-trust now as he described it then?
"Our country, although favored in many ways
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? 1
FOREWORD
over all others, went to pieces in the financial de-
pression of 1929 even more helplessly than others
that had more to contend with. Is this floundering
connected with the evils against which, in "Other
People's Money" we were warned?
"Are the hankers and other big business men learn-
ing anything?
"Are we ready, led by those in financial power, to
make changes that will give us more stability, and
more justice? "
The answers varied so far as to suggest that the
ablest among those who control large money pools
have no consensus. One of them, chief figure in one
of our best-known banks, said: "We learned nothing
from the 1929 breakdown. Perhaps in twenty-five
years, we shall plunge into another, so much worse
that we shall then be compelled to realize our plight
and act accordingly.
"I do not think the bankers can be blamed alone.
They responded to the pressure of the public. No-
body desired sound investments at a low return. All
were looking to grow rich quickly. The more con-
servative the methods of a banking institution, the
less its business grew, while it saw clients flocking to
those houses that promised sudden gain. "
This banker made no definite suggestions except
the to-be-hoped-for decline in the gambling spirit of
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? PROPHET AND STATESMAN li
our whole people. Another, one of the most brilliant
in the banking world, found the New York Stock
Exchange an important factor in the futility with
which we allowed ourselves to slide without intelli-
gent resistance into the abyss. He felt that it should
have closed for a time when Great Britain went off
the gold standard, to allow people to assemble their
wits before launching a panic. On a topic specifi-
cally treated in this volume he took the position that
a so-called money-trust, or great pool of money con-
trolled by a few houses, is a necessity, since only
from such a source can a loan of $50,000,000 or
more be obtained. It is clear that the answer of the
Justice would be that there is no reason for such a
loan to be obtained from one source. Of another
thesis in his book the same banker said that long-
distance conservative investments had fared about as
badly in the catastrophe as other properties. This
statement can scarcely stand examination.
The philosophy of life of which Brandeis was in
1914, and is now, the most powerful American advo-
cate, has, I think, more followers now, and more in-
fluential ones, than it had at the time when the
articles were running their course through Harper's
Weekly. In citing some of them I shall intentionally
avoid remote theorists, and select men versed in prac-
tical affairs.
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? lii
FOREWORD
Before he became President of Dartmouth, Dr.
Ernest M. Hopkins was connected with the Western
Electric Company, the Curtis Publishing Company,
the Filene Store, and the New England Telephone
Company, and he is now a director in the Boston &
Maine Railroad and a member of the Rockefeller
Foundation. During the war his work had to do
with capital and labor. In June, 1932, he said, in
speaking to a representative of the New York Herald-
Tribune: "I used to look upon a bank as an institu-
tion that was interested in the wellbeing, the welfare,
of its clients. One went to a banker for counsel.
When one's factory, or shop, or mercantile, or indus-
trial establishment was ill, one looked to the banker
as to a physician. . . . But to-day, and for a number
of years past, in this period of mergers and reorgan-
izations, a great many of our banks have stood like
harpies, watching until a client shows signs of illness,
and then rushing in to force him into liquidation,
into bankruptcy. The bank then takes a hand in
reorganizing the concern, makes a profit out of the
reorganization and puts some of its men on the new
directorate. "
Now let us listen to Commissioner Eastman,
perhaps highest in prestige of any on the Interstate
Commerce Commission, and certainly the one whose
principles are most in accord with those of Justice
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? PROPHET AND STATESMAN liii
Brandeis. In voting, on May 27th, 1932, to approve
a further Reconstruction Finance Corporation Loan
to the Erie Road, in order that a loan to the road
from bankers might be repaid, he said he saw no
reason in justice for the advance, but added: "How-
ever, if the government should not now make the
loan which is sought, and should suggest to the banks
that they might well continue to put this money to its
present use, no doubt a hue and cry would be raised
by these financial interests and their newspaper
friends to the effect that the government is exhibiting
a lack of faith in the future of the railroads and dis-
couraging the return of confidence. . . . All this
would have a demoralizing effect on the general
situation, particularly because of the fact that so
many erstwhile investors are accustomed to absorb
their opinions from such sources. . . . The banks
will then have the opportunity to use the money in
other ways for the public good. It will be of interest
to see what they do with it. "
In February, 1932, appearing before the Com-
mittee on Interstate and Foreign Commerce of the
House of Representatives, Mr. Eastman said: "The
outstanding vice, therefore, of the operations of the
Van Sweringen holding companies, was that having
purchased at high prices mere stock equities in
various railroad companies, they made the invest-
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FOREWORD
ments a basis for the issuance of bonds and preferred
stock, which they sold to investors, retaining control
through a margin of common shares and reducing
the investment necessary for such control by further
pyramiding processes. . . . I will call your atten-
tion to the fact that these two holding companies,
whose structures and operations I believe to have
been unsound, were sponsored by the two leading
banking firms in this country. One was sponsored
and its securities were marketed by Kuhn, Loeb &
Co.
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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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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? xlviii
FOREWORD
that is both fertile and challenging, yet has caused no
discussion, presumably because its creative boldness
places it beyond the vision of the moment; or, to
change the trope, because its sharp divergence from
what we take for granted bars our imaginations from
giving it shelter. Yet no measure urged, over so long
a time, even though it be so far only in conversation,
by our foremost economic prophet, can be assumed to
be unsound. Having established in his faith the tenet
that size in business is an advantage only up to
limits, and then a power for harm, he frequently asks,
should we not tax size? If the objection be made that
such taxation would strike the efficient huge concerns
as well as the inefficient, the answer lies ready to meet
the censure: a huge concern that is efficient can pay
the tax; it is the one that is inefficient that will fall
apart from the added burden. Ford would remain;
the mammoths built by mere combination could thus
be quietly slaughtered. And here we are using the
word efficient in the limited sense of ability to make
money. Believing that great size is a social injury
in far-reaching ways the Justice, as he talks this
matter over, makes what to his mind is a modest pro-
posal. He merely suggests a tax that shall force each
unit above a certain size to meet a tax that shall be
large enough to be a burden for an inefficient mam-
moth, and not for one that is skillful to a high de-
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? PROPHET AND STATESMAN xlix
gree. If Congress should ever lay such a tax, during
the life-time of Justice Brandeis, it is safe to surmise
either that he would write the majority opinion or
that his dissent would he one of his most hrilliant
protests.
It was with some irony that Brandeis, writing in
Harpers Weekly the articles gathered together in
this hook, and showing how the captains of industry
combine themselves into vast wealth and power, com-
ing to the case of George F. Baker, said: "It is not
surprising that Mr. Baker saw little need of new laws.
When asked: 'You think everything is all right as
it is in this world, do you not V
"He answered:
"'Pretty nearly. '"
While I was preparing to write this foreword to
the new edition I talked with various representatives
of the country's financial power. All were interested,
and all were courteous, hut in their outlook sharply
various.
Of each, in the course of conversation, I asked
questions about like these:
"Since Mr. Brandeis made his analysis of the
faults of banking, sixteen years ago, to what extent
have the basic conditions altered?
"Is the money-trust now as he described it then?
"Our country, although favored in many ways
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? 1
FOREWORD
over all others, went to pieces in the financial de-
pression of 1929 even more helplessly than others
that had more to contend with. Is this floundering
connected with the evils against which, in "Other
People's Money" we were warned?
"Are the hankers and other big business men learn-
ing anything?
"Are we ready, led by those in financial power, to
make changes that will give us more stability, and
more justice? "
The answers varied so far as to suggest that the
ablest among those who control large money pools
have no consensus. One of them, chief figure in one
of our best-known banks, said: "We learned nothing
from the 1929 breakdown. Perhaps in twenty-five
years, we shall plunge into another, so much worse
that we shall then be compelled to realize our plight
and act accordingly.
"I do not think the bankers can be blamed alone.
They responded to the pressure of the public. No-
body desired sound investments at a low return. All
were looking to grow rich quickly. The more con-
servative the methods of a banking institution, the
less its business grew, while it saw clients flocking to
those houses that promised sudden gain. "
This banker made no definite suggestions except
the to-be-hoped-for decline in the gambling spirit of
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? PROPHET AND STATESMAN li
our whole people. Another, one of the most brilliant
in the banking world, found the New York Stock
Exchange an important factor in the futility with
which we allowed ourselves to slide without intelli-
gent resistance into the abyss. He felt that it should
have closed for a time when Great Britain went off
the gold standard, to allow people to assemble their
wits before launching a panic. On a topic specifi-
cally treated in this volume he took the position that
a so-called money-trust, or great pool of money con-
trolled by a few houses, is a necessity, since only
from such a source can a loan of $50,000,000 or
more be obtained. It is clear that the answer of the
Justice would be that there is no reason for such a
loan to be obtained from one source. Of another
thesis in his book the same banker said that long-
distance conservative investments had fared about as
badly in the catastrophe as other properties. This
statement can scarcely stand examination.
The philosophy of life of which Brandeis was in
1914, and is now, the most powerful American advo-
cate, has, I think, more followers now, and more in-
fluential ones, than it had at the time when the
articles were running their course through Harper's
Weekly. In citing some of them I shall intentionally
avoid remote theorists, and select men versed in prac-
tical affairs.
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? lii
FOREWORD
Before he became President of Dartmouth, Dr.
Ernest M. Hopkins was connected with the Western
Electric Company, the Curtis Publishing Company,
the Filene Store, and the New England Telephone
Company, and he is now a director in the Boston &
Maine Railroad and a member of the Rockefeller
Foundation. During the war his work had to do
with capital and labor. In June, 1932, he said, in
speaking to a representative of the New York Herald-
Tribune: "I used to look upon a bank as an institu-
tion that was interested in the wellbeing, the welfare,
of its clients. One went to a banker for counsel.
When one's factory, or shop, or mercantile, or indus-
trial establishment was ill, one looked to the banker
as to a physician. . . . But to-day, and for a number
of years past, in this period of mergers and reorgan-
izations, a great many of our banks have stood like
harpies, watching until a client shows signs of illness,
and then rushing in to force him into liquidation,
into bankruptcy. The bank then takes a hand in
reorganizing the concern, makes a profit out of the
reorganization and puts some of its men on the new
directorate. "
Now let us listen to Commissioner Eastman,
perhaps highest in prestige of any on the Interstate
Commerce Commission, and certainly the one whose
principles are most in accord with those of Justice
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? PROPHET AND STATESMAN liii
Brandeis. In voting, on May 27th, 1932, to approve
a further Reconstruction Finance Corporation Loan
to the Erie Road, in order that a loan to the road
from bankers might be repaid, he said he saw no
reason in justice for the advance, but added: "How-
ever, if the government should not now make the
loan which is sought, and should suggest to the banks
that they might well continue to put this money to its
present use, no doubt a hue and cry would be raised
by these financial interests and their newspaper
friends to the effect that the government is exhibiting
a lack of faith in the future of the railroads and dis-
couraging the return of confidence. . . . All this
would have a demoralizing effect on the general
situation, particularly because of the fact that so
many erstwhile investors are accustomed to absorb
their opinions from such sources. . . . The banks
will then have the opportunity to use the money in
other ways for the public good. It will be of interest
to see what they do with it. "
In February, 1932, appearing before the Com-
mittee on Interstate and Foreign Commerce of the
House of Representatives, Mr. Eastman said: "The
outstanding vice, therefore, of the operations of the
Van Sweringen holding companies, was that having
purchased at high prices mere stock equities in
various railroad companies, they made the invest-
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FOREWORD
ments a basis for the issuance of bonds and preferred
stock, which they sold to investors, retaining control
through a margin of common shares and reducing
the investment necessary for such control by further
pyramiding processes. . . . I will call your atten-
tion to the fact that these two holding companies,
whose structures and operations I believe to have
been unsound, were sponsored by the two leading
banking firms in this country. One was sponsored
and its securities were marketed by Kuhn, Loeb &
Co.
