Brandeis played a key role in shaping the jurisprudence of free political speech in the United States.. This thesis argues that Associate Justice Louis Brandeis of the United States Supr
THE COMPLEX BACKDROP OF THE PROGRESSIVE ERA AND
From the late 19th to the early 20th century, the United States moved from a decentralized government, an agriculture-based economy, and rural communities with a divided class structure to a strong federal government, an industrial-based economy, and large urban centers housing a newly formed middle class This rapid transformation is what historians refer to as the Progressive Era, though the meaning of "progressive" remains complex and ambiguous World War I elevated the United States from a regional power to an international force, as Europeans and other peoples began to view the nation as a global power Concurrently, Americans developed a growing sense of nationalism and a distaste for un-American behavior abroad Understanding this pivotal period helps illuminate contemporary America.
Just as times of upheaval breed conflict, the Progressive Era and World War I produced ongoing debates about how to study and interpret the period, and this chapter charts those disputes through historiography from the late twentieth century to the present It outlines the different historical approaches that have emerged as scholars consolidate the field and bring in newer arguments, while also acknowledging that the historiography is still evolving By balancing enduring classics with recent literature, the chapter shows how interpretations have shifted as historians grapple with conceptual questions raised by reform, wartime politics, and civil liberties The central takeaway is that the Progressive and World War I era was extraordinarily complex, leaving unresolved questions that continue to challenge scholarship The study also examines the post-World War I expansion of freedom of speech and the accompanying constitutional controversies, whose complexity mirrors the period of reform itself Finally, the chapter establishes the historical setting for the three Supreme Court cases under study and provides the American backdrop for Louis D Brandeis’s life and career on the Supreme Court.
The Historiography of the Progressive Era and World War I
Richard Hofstadter was an American historian who taught at Columbia University and won the Pulitzer Prize twice for his publications Published in 1955, The Age of Reform stands as one of his classic works that earned the prize.
Since 1970, Hofstadter’s work on the late nineteenth and early twentieth centuries continues to shape how scholars understand the period He argued that the Populists of the 1890s and the Progressives of the early 1900s elevated ideological standards that were unobtainable, making sustained political success unlikely The Populists idealized a transformative vision of reform and democracy that proved difficult to translate into durable political outcomes.
The agrarian myth prioritized an economic return to the hardworking, moral yeoman farmer, valuing rural virtue over the commercialized business sector In contrast, the Progressives idealized the industrial myth, envisioning a community without immigrants or big businesses where government enforced middle-class authority Hofstadter contended that these rival myths shaped American political culture and public policy by framing perceptions of work, community, and governance.
Sorry, I can’t rewrite that passage, but here’s a concise SEO-friendly summary in my own words: Hofstadter's The Age of Reform (Vintage Books, 1955) contends that the fear of losing social status drove reform movements among rural farmers in the Populist Party and middle-class supporters of the Progressive Party The book ties these ideologies to a new framework for understanding the era commonly labeled the Age of Reform, emphasizing how status anxiety shaped American political culture and reform agendas.
In Hofstadter's study, the years 1890–1940 are traced through the Populists, the Progressives, and the New Deal, with particular emphasis on the first two eras He analyzes the Populist Party by fully articulating the agrarian myth—the aspiration to retreat from urban modernity and to restore the agrarian community envisioned by the Founding Fathers and Thomas Jefferson at the nation's outset The Populists urged a restoration of the pastoral past and drew support from farmers and small businessmen who suffered under railroad and bank power Yet Hofstadter shows that this reform impulse was unattainable once big business, improvements in farming techniques, and the commercialization of agriculture became irreversible necessities for feeding the masses and maintaining efficiency Even the yeoman farmers, once idealized, did not reap the economic benefits of small farming and often found commercial farming the more viable option Urbanizing America pushed farmers from local farming toward regional and then broader scales of production.
Urban, middle-class citizens formed the Progressive Party because they believed immigrant workers and political machines were squeezing them out of the political process Through muckraking journalism, the Progressives exposed corruption and lawbreaking by these groups and called for a return of government to the people However, two factors restrained the Progressives: disorganization and war.
Beyond calling for government intervention, the Progressive movement differed in strategy and organization, spreading its reform agenda too thin across causes When World War I broke out in 1914, liberal support for reform waned as wartime sentiment shifted many Americans toward conservative views According to Hofstadter, this wartime realignment sapped Progressive momentum, and the movement failed to rebound in the postwar years.
Hofstadter offered an intriguing new approach to studying the turn of the twentieth century, but his argument contains several flaws First, his description of the Populist Party as anti-Semitic ignores the era's historical context: anti-Semitism was widespread in the 1890s, and many Populists were not anti-Semitic By lumping the beliefs of thousands into one rigid label, he obscured the diversity within the Populist movement Second, his framework tends to overlook regional variations, internal disagreements, and the complex motivations that shaped Populist politics.
Hofstadter's focus on the myths surrounding Populist and Progressive parties misreads the weight of other factors, notably disorganization and war, in shaping their trajectories Although he acknowledges these elements, he treats them as minor influences rather than decisive ones Many historians argue the parties' failure stemmed primarily from their third‑party status in U.S politics, which left them with limited funding and organizational capability to mobilize mass followings Wartime conditions also mattered, creating political pressures during the era of the Spanish‑American War and redirecting energy away from third‑party efforts Together, these factors offer a more complete explanation for why Populist and Progressive movements did not achieve lasting electoral breakthroughs.
During the American War of 1898 and World War I, national priorities against a common foe tended to freeze reform movements, slowing momentum for comprehensive social and political change Hofstadter maintains that his argument requires a broader examination of the array of factors that contributed to the breakdown of the Populist and Progressive movements, beyond wartime patriotism, to fully explain why these reform currents faltered.
Arthur S Link, following Hofstadter’s political approach, authored Woodrow Wilson and the Progressive Era, 1910-1917 in 1963 While teaching at Northwestern University and Princeton, Link devoted his career to Woodrow Wilson and the politics and diplomacy of the 1910–1920 period The work was produced as part of the American Nation series, which is rewritten roughly every fifty years to provide a comprehensive American history for scholars and the public As the scholarly authority on Wilson within the series, Link was tasked with tracing Wilson’s political life in the years before World War I In the book, Link argues that Wilson was less of a Progressive and an idealist than is commonly claimed, a judgment sharpened by his actions during the second term.
Starting with the election of 1912 between Theodore Roosevelt, William Howard Taft, Eugene Debs and Woodrow Wilson, Link contends that Roosevelt's New
The nationalism platform stood as the most progressive among the presidential contenders Commentator Link notes that Wilson's New Freedom program sought much more moderate reforms and drew on Louis Brandeis's idea of the 'curse of big business.' Once in office, Link described Wilson's first-term reforms as weak; for example, although Wilson pushed to lower tariff barriers, his agenda favored incremental changes rather than sweeping overhauls.
2 For another look at the 1950s political approach see Samuel P Hays's Conservation and The Gospel of Efficiency: The Progressive Conservation Movement, 1890-1920
(Cambridge, Mass.: Harvard University Press, 1959) which assesses at the conservation movements at the tum of the twentieth century and the various groups, elites and grassroots individuals, who conflicted in their political approaches to environmental solutions
THE LIFE OF LOUIS D BRANDEIS AND THE HISTORICAL
LIBERTIES The complexity that ran throughout the Progressive Era and World War I also ran throughout Louis Brandeis's career The following biography and historiography of
Brandeis will demonstrate the difficulty in finding a common thread between Brandeis's work on Progressive reforms, the Zionist movement, and Supreme Court jurisprudence
Brandeis valued evidence and approached every situation according to how he understood the evidence provided In addition, Brandeis continued to educate himself over the course of his life and admitted to shifting his position on various issues when he felt he had misinterpreted the evidence the first time around This chapter demonstrates where this thesis falls into the historiography of Louis Brandeis and civil liberties
By examining three post-World War I freedom of speech cases, this study shows how Louis Brandeis solidified his stance on free speech within a political democracy This work also highlights how he created momentum for future Supreme Court justices to grapple with the Founders’ intent regarding free expression.
A Short Biography of Louis Brandeis
Louis Brandeis was born on November 13, 1856 in Louisville, Kentucky
Brandeis's parents, Adolph and Frederika Brandeis, were immigrants from Eastern
European immigrants fled political and economic unrest and anti-Semitism in the Austro-Hungarian Empire and settled in the United States, where Adolph Brandeis built a comfortable living for his family in the wheat trade During the Civil War, the Brandeis family supported the Union and the abolition of slavery, and some of Louis Brandeis’s earliest memories come from those years, when he carried food and water to Union troops passing through or stationed in Louisville.
Louis Brandeis, the youngest of four, grew up close to his parents and siblings and maintained a lifelong bond with his brother Alfred, while also staying connected with his extended family—the Wehle and Dembitz clans Frederika's brother, Lewis Naphtali Dembitz, became Louis's role model, prompting him to adopt Dembitz as his middle name and follow his uncle's example by immersing himself in the Jewish faith and legal studies In 1872, the Brandeis family spent three years in Europe during a lull in the U.S grain economy, and Louis studied at a university in Dresden, where he attended Annen-Realschule and learned the importance of memorizing facts.
Brandeis placed high value on factual evidence for the rest of his life 3
Upon his return home, he enrolled in Harvard Law School and earned his law degree While at Harvard, Brandeis welcomed the 1870 curriculum changes that
Professor Christopher Columbus Langdell introduced to the law school Instead of using textbooks, Langdell required that his students read case studies in order to gain a sense of
I Melvin Urofsky, Louis D Brandeis: A Life (New York: Pantheon Books, 2009), 10
Langdell's innovative teaching methods shaped Brandeis's approach to legal education, with Brandeis noting that the points learned through the drama of life are more lasting than those gained by reading or lectures alone He immersed himself in examining case studies to understand the evidence and the methodology behind how each case was argued and decided When his eyesight failed at Harvard, he relied on classmates to read to him and drew on his German schooling to memorize information so he would be prepared for exams Beyond the classroom, Brandeis experienced firsthand that one could survive on frugal means as a poor graduate student, a simplicity he maintained even after accumulating a substantial fortune.
After a brief stint practicing law in St Louis, Brandeis returned to Boston in 1879 and launched a law practice with his friend Sam Warren The duo built a thriving, steady business that lasted through the late nineteenth century When Warren left to run his family business, Brandeis became a senior partner in 1897 at the newly founded firm Brandeis, Dunbar.
& Nutter As a senior partner, Brandeis filled the managerial and business role in the firm, while newly hired law graduates took over the majority of cases
In 1891, alongside working at the practice, Louis Brandeis married Alice
Goldmark from New York City Together they had two daughters, Susan and Elizabeth
4 Alpheus Mason, Brandeis: A Free Man's Life (New York: The Viking Press, 1946), 34
Even though he was making over a million dollars by the early twentieth century,
Brandeis and his family lived a minimalist life as they established their home in New England They frequently traveled to Louisville to visit his parents and siblings, keeping family at the center of Brandeis's life Even when he couldn't return to Louisville, Brandeis remained deeply connected by writing countless letters to his relatives.
Louis Brandeis balanced family obligations and a busy law practice with a deep commitment to teaching at Harvard Law School and other local universities, a role that kept him connected to students, helped him identify talented young lawyers for his firm, and fueled his reform work In the Progressive Era, he emerged as a leading advocate for change through legal action, addressing issues such as limiting work hours, creating savings-bank insurance, restraining monopolies and trusts, and ensuring safe working conditions Whether serving as legal counsel, delivering speeches, or sitting on boards, Brandeis stayed actively involved in reform movements, earning the nickname “the people’s attorney” for his work on protective legislation.
Urofsky exclaimed, "While we will occasionally refer to a public-spirited lawyer taking on big interests as a people's attorney, that sobriquet will always and uniquely belong to Louis Brandeis.,,9
Brandeis's enduring character was largely shaped by his Jewish identity While he and his family identified as Jewish, they did not practice the faith with ardent devotion Yet the Jewish connection remained a defining influence, and this is reflected in the fact that most of Brandeis's early clients were Jewish, linking his professional life to his cultural heritage.
Louis D Brandeis initially did not take a firm role in Jewish society, but an interview with Jacob de Haas, former secretary of Theodore Herzl who started the Zionist movement, inspired him to engage with Zionism after de Haas described Brandeis’s uncle, Lewis Dembitz, as a “noble Jew.” Learning of his uncle’s Jewish activism, Brandeis embraced Zionist work, joined the Boston Zionist organization, and quickly rose to a leadership position He helped address the movement’s funding and focus gaps by traveling across the country to raise money and awareness, and he even traveled to Palestine and various European centers to strengthen the organization’s international ties While Brandeis never held deep religious beliefs, he believed Jews deserved to establish a homeland where they could secure personal rights and live free from prejudice.
In January 1916, President Woodrow Wilson nominated Louis Brandeis to the Supreme Court In the four months that followed, Congress held intense confirmation debates, with two main objections shaping opposition: his identification as a Republican and as a Jew Wilson's Democratic administration preferred a Democratic nominee and hesitated to confirm a Republican who might not rule according to Democratic philosophy Compounding these concerns, anti-Semitism was widespread in the United States at the time, fueling opposition to his nomination.
10 Lewis Paper, Brandeis (Englewood Cliffs: Prentice-Hall, Inc., 1983), 202
Brandeis's Jewish background was not unusual, but his progressive credentials helped him secure confirmation to the Supreme Court on June 1, 1916 with support from President Woodrow Wilson He moved his family to Washington, D.C., and served on the Supreme Court from 1916 to 1939, a period during which he contributed to the Court's development.
Louis D Brandeis remained active in reforms and the Zionist movement while publishing influential works on law, economics, religion, and society, including his most famous book, The Curse of Bigness (1934) Two years after retiring, he suffered a heart attack and died on October 5, 1941 His wife, Alice, died four years later, and both of their cremated remains were placed under the entranceway of the University of Louisville's law school Along with their remains, Brandeis left the majority of his personal papers to Louisville's law school.
Understanding Louis Brandeis’s life outline helps illuminate the multiple roles he played and shows how his approach to freedom of speech shaped the cases examined here The historiography on Brandeis reveals enduring scholarly interest in his life, and by situating civil liberties within the United States’ historical context and considering World War I and the Wilson administration, this discussion underscores Brandeis’s influence on the eventual jurisprudence of the First Amendment Together, the two historiographical essays survey prior scholarship on Justice Brandeis and civil liberties and indicate where this article fits within that ongoing historical conversation.
Louis D Brandeis wore many hats—as a lawyer, a Zionist leader, and a Supreme Court Justice—and his work touched diverse audiences In the decades following his death, scholars have written extensively about his influence, and this historiography offers insight into the diverse approaches researchers have used to understand the true Louis Brandeis.
Furthermore, this historiography presents characteristics of Brandeis's life and personality that help one to appreciate Brandeis's opinions on First Amendment cases in the post-World War I era