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mankind will continue to insist. And, at least so far as we have gone, they appear to be conditioned upon the cooperation and organization of great numbers. Perhaps we may be able to keep and to increase our gains without working on so vast a scale; we do not know; show us and we may try; but for the present we prefer to keep along the road which has led us so far, and we will not lend an auspicious ear to jeremiads that we should retrace the steps which have brought us in sight of so glorious a consummation."
It is hard to see any answer to all this; the day has clearly gone forever of societies small enough for their members to have personal acquaintance with each other, and to find their station through the appraisal of those who have any first-hand knowledge of them. Publicity is an evil substitute, and the art of publicity is a black art; but it has come to stay, every year adds to its potency and to the finality of its judgments. The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country; whether we like it or not, we must learn to accept it. And yet it is the power of reiterated suggestion and consecrated platitude that at this moment has brought our entire civilization to imminent peril of destruction. The individual is as helpless against it as the child is helpless against the formulas with which he is indoctrinated. Not only is it possible by these means to shape his tastes, his feelings, his desires and his hopes; but it is possible to convert him into a fanatical zealot, ready to torture and destroy and to suffer mutilation and death for an obscene faith, baseless in fact and morally monstrous. This, the vastest conflict with which mankind has ever been faced, whose outcome still remains undecided, in the end turns upon whether the individual can survive; upon whether the ultimate value shall be this wistful, cloudy, errant, You or I, or that Great Beast, Leviathan, that phantom conjured up as an ignis fatuus in our darkness and a scapegoat for our futility.
We Americans have at last chosen sides; we believe that if it may be idle to seek the Soul of Man outside Society, it is certainly idle to seek Society outside the Soul of Man. We believe this to be the transcendent stake; we will not turn back; in the heavens we have seen the sign in which we shall conquer or die. But our faith will need again and again to be refreshed; and from the life we commemorate today we may gain refreshment. A great people does not go to its leaders for incantations or liturgies by which to propitiate fate or to cajole victory; it goes to them to peer into the recesses of its own soul, to lay bare its deepest desires; it goes to them as it goes to its poets and its seers. And for that reason it means little in what form this man's message may have been; only the substance of it counts. If I have read it aright, this was that substance. "You may build your Towers of Babel to the clouds; you may contrive ingeniously to circumvent Nature by devices beyond even the understanding of all but a handful; you may provide endless distractions to escape the tedium of your barren lives; you may rummage the whole planet for your ease and comfort. It shall avail you nothing; the more you struggle, the more deeply you will be enmeshed. Not until you have the courage to meet yourselves face to face; to take true account of what you find; to respect the sum of that account for itself and not for what it may bring you; deeply to believe that each of you is a holy vessel unique and irreplaceable; only then will you have taken the first steps along the path of Wisdom. Be content with nothing less; let not the heathen beguile you to their temples, or the Sirens with their songs. Lay up your treasure in the Heaven of your hearts, where moth and rust do not corrupt and thieves cannot break in and steal."
How shall one encompass in a few faltering words the life we have come to commemorate—a life so beautiful, so various, so fruitful? The achievements of Mr. Justice
•Mr. Freund assisted Justice Brandeis as law clerk from September 1932 until September 1933.
Brandeis were so many, his knowledge so profound, his resourcefulness so formidable, that it would be easy to mistake these for the measure of the man. These were, indeed, the marks of a dedicated life; but it was the dedication that gave it greatness. To realize the promise of America through law—that men might share to the limit of their capacity in the American adventure— was the end to which he devoted all his talents and his energies. In him the lawyer's genius was dedicated to the prophet's vision, and the fusion produced a magnificent weapon for righteousness. In his hand the sword was fringed with fire.
Thus dedicated, his life had the simplicity of greatness. All his labors were given coherence and direction and moral intensity by being made to serve two fundamental beliefs: That responsibility is the developer of men, and that excessive power is the great corrupter. "Care is taken," he liked to quote from the German, "that the trees do not scrape the skies." He believed with Lord Acton that all power corrupts and that great power corrupts greatly. He believed with the Stoic philosophers that no man is so like unto himself as each is like to all. For him the democratic faith was not, however, simply dogma. Partly it was parental inheritance from the Pilgrims of '48; but above all it was confirmed by the rich experience of life. Convinced as he was that ordinary men have great capacity for moral and intellectual growth through the sharing of responsibility, and that the limits of capacity in even the best of men are soon reached, the democratic faith was for him grounded in urgent necessity no less than in moral duty.
This faith transformed his tireless mastery of detail into the pursuit of an ideal. At the Bar, he brought his great gifts of analysis, of painstaking study, and of constructive statesmanship to the service of his belief in the common man. In the field of labor relations, he devised a plan of industrial peace which called for continuous
collaboration between employer and labor, a continuous sharing in the responsibilities of management. In the field of finance, he insisted on the limitations of mortal understanding in endeavoring from the vantage point of the exchanges to direct giant industrial enterprises. Perhaps his proudest achievement while at the Bar was the establishment of the system of savings bank industrial life insurance in Massachusetts. This system, as he envisaged it, would not simply give added security and so additional freedom to the workers; more than that, it would be a demonstration of what could be accomplished in an undertaking of modest size by ordinary men working without the prestige of position that has come to those who manage large aggregations of other people's money.
All his views were grounded in the same distrust of bigness, the same sense of urgency that the energies of all men should be released and utilized. He was profoundly attached to the principle of Federalism. He lost no opportunity to advise young lawyers that the United States was not Wall Street or even Washington; that if one went there on a tour of duty one should not overstay his time; that talents and training should be taken back to the home community.
On the bench his sense of the fallibility of judgment did not leave him. It remained as a guiding canon in the decision of constitutional cases. He would not be seduced by the attractions of opportunism. His own integrity, and his faith in the integrity of traditions, were too strong. When the Court was prepared, as in the first Tennessee Valley Authority case, to announce constitutional doctrine which had his full approval, he none the less raised his voice in protest at what he regarded as an unwarranted anticipation of the constitutional question. No inconsiderable part of his labors on the Court went into the exacting art of staying the judicial hand lest it decide more than was required by the case at bar. In the one or two instances in which it may be suggested that he departed from his canon of judicial parsimony—instances where he took occasion to cast constitutional doubt on declaratory judgments and on a general federal common law—it is worth observing that the departures were in the interest of confining the powers of the federal courts. No one was more sensitive than he to the limitations on the function of the Court; and yet no one succeeded more notably than he in combining the role of judge and teacher. One remembers the preparation of the first opinion of a Term, which had finally passed what seemed to be the ultimate revision, and the Justice's disquieting observation: "The opinion is now convincing, but what can we do"—he was always excessively generous in the use of the plural—"but what can we do to make it more instructive?"
His conception of the office to which he had been called is revealed by glimpses into what only seem to be the small incidents of his character, for in the perfect harmony of his life nothing that became a part of it could be trivial. He could never quite reconcile himself to the grandeur of the Court's new edifice, lest the power of the Court might in some measure come to rest on the majesty of office rather than on the inward strength of the appeal to reason. So dominant was his devotion to reason, that his opinions attempted even to satisfy unsuccessful counsel. No relevant argument was to pass unnoticed, and if a petition for rehearing was filed, the Justice felt a sense of failure,— though I never quite understood why the intransigence of the advocate should be a fault attributed to the judge. No one who ever heard the Justice deliver a major opinion from the bench could fail to understand the symbolism, and more than symbolism, of the occasion: the patient earnestness with which he explained to the small assemblage the facts of the case and the reasons for the decision, as if in acknowledgment that the Court is a lawgiver only as its decrees find rational acceptance, as if in the hope that none might go away unpersuaded.
Those who had an opportunity to observe his judicial labors would wish to speak, I am sure, of his method of work. Every case that fell to him for opinion gave fresh occasion for the application of his principle that knowledge must precede understanding, and understanding