CHAPTER TWO
The secularist moment would not open again until the 1880s. And to a remarkable extent that new moment can be traced through a friendship. One of the friends was Louis Brandeis, a crusading lawyer, a social reformer, and an inveterate optimist. The other, Oliver Wendell Holmes Jr., was not the reforming type.
It was an unlikely pairing.
Of the two, Brandeis did not seem to be well-positioned to lead a secular movement in law. As a boy growing up in Louisville, Kentucky, he occupied a margin within a margin within a margin. His family was abolitionist in a slaveholding state that stayed with the Union. He was a Jewish child in a largely Christian southern city. And although he never denied his Jewishness, he had no real interest in Judaism as such.
His parents came to the United States after the revolutions of 1848 in Europe, a series of liberal uprisings that were eventually crushed. In Prague, where his father and mother lived, anti-Semitic reactions convinced them to flee. After considering the options, his father, Adolph Brandeis, toured the American Midwest and found it congenial. He wrote his wife, Frederika Dembitz Brandeis, to extol the new land in a way that gestured toward his wider political sympathies. America’s progress, he told her, “is the triumph of the rights of man.”1
Once settled in the United States, the Brandeises lived in relative comfort and at a distinct remove from the Reformed synagogue in town. Frederika later explained that she raised Louis and his siblings without religion because of the tenuousness of religious commitments in the modern world. “Love, virtue, and truth are the foundation upon which the education of the child must be based,” she said. “They endure forever. . . . And this is my justification for bringing up my children without any definite religious belief: I wanted to give them something that neither could be argued away nor would have to be given up as untenable, namely a pure spirit and the highest ideals as to morals and love.” She added without irony, “God has blessed my endeavors.”2
The Brandeises initially seemed to be prospering, but the Civil War proved problematic. Their business suffered. And their abolitionism was not welcome. A few years after the conclusion of hostilities, about the time that Louis reached high school age, the family went abroad. In Dresden, Germany, Louis gained entrance into a Realschule, a type of high school that allows for maximum flexibility to move to higher levels of education for those who are academically successful or, for less academically inclined students, to move into a craft apprenticeship. It was not the most rigorous of German schools, but it offered much more than he had been given in Louisville.
Brandeis arrived at the Realschule at an opportune moment, just as a new form of social theory emerged in Europe. In the years since the American Revolution, much about Western societies had changed. The urban–industrial transformation, which began at the end of the eighteenth century, had reordered human social relations on a scale not seen since human beings adopted agriculture in the Neolithic period. The increasing complexity of human societies, their interdependence through vast technical systems, and the layers of bureaucratic management necessary to achieve collective aims raised fresh social questions. Social theorists, who soon called themselves social scientists, began to take up these questions, asking how societies promoted stability, what sources of authority were possible within the vast urban spaces, and what the best structure for human societies was in the aftermath of industrial capitalism.
The outlook of the new social sciences was distinctly modern and often secularist. In almost every case the core of the social–scientific project involved a rejection of the explanatory power and authority of traditional faith. The bourgeois life of the city, the new industrialized forms of capitalist exchange, and the place of the individual in the social whole could not, social scientists believed, be understood in the old terms. It was not that all social theorists agreed on the solutions to modern problems. But they all agreed that only new, modern forms of knowledge—empirical in orientation, free of moralism or preformed normative commitments, unbound by dogma—would suffice to deliver a solution. They offered up their theories to critique waves of resurgent religiosity, which worked against their secularizing impulse, through the latter part of the nineteenth century and the first half of the twentieth.3
Brandeis reached Dresden as all this was taking shape. He imbibed the protosocial scientific spirit at his German school and attributed his ability to think and his orientation to facts and to data—what he thereafter considered his social scientific inclinations—to his time in Germany. He later told his law clerk Paul Freund that the Dresden experience gave him a sense that empirical study could by itself yield a normative perspective. “It was not until he went to Dresden that he really learned to think,” Freund said of Brandeis. “In preparing an essay on a subject about which he had known nothing,” Freund continued, “it dawned on him that ideas could be evolved by reflecting on your material. This was a new discovery for him.”4
From that point forward Brandeis privileged knowledge of facts and empirical testing over dogmatic maxims. As he put it later to another interviewer, “It has been one of the rules of my life that no one shall ever trip me on a question of fact.”5
Dresden also influenced Brandeis’s perception of the role of religion in society. His time there came at an opportune moment for European Jews. Parts of Europe began to eliminate civil disabilities to allow Jewish citizens access to public life. With the advance of political movements like the Revolutions of 1848, which had originally driven the Brandeises from Europe, assimilated and emancipated Jews became one of the central agents of political liberalization on the continent. Their cultural modernity and their traditional exclusion from public life prompted many Jews to emphasize neutral public spaces in which citizens could meet and confer about matters of public import regardless of their ethnic or religious identification. In many cases the emergence of Jews into European public life and the embrace of modern, liberal cultural forms were one and the same process. As the historian Yuri Slezkine explains, “The universities, ‘free’ professions, salons, coffeehouses, concert halls, and art galleries in Berlin, Vienna, and Budapest became so heavily Jewish that liberalism and Jewishness became almost indistinguishable.” Although Dresden was not necessarily at the center of the process, it still bore on Brandeis’s experience and conferred upon him a lasting skepticism toward the place of Christianity in public life.6
But Germany was, in another way, not where he wanted to be. “German paternalism got on my nerves,” he later explained. He decided that he wanted to come home and that, like his abolitionist uncle, he wanted to be a lawyer. So Brandeis returned to the United States and enrolled in Harvard Law School. His timing was, again, impeccable. Harvard was just then being transformed in a way that fed into Brandeis’s emergent secularist thinking.7
The change had to do with religion. Harvard and other institutions of higher education, up until that point, were led by clergymen. The college as a whole reflected its religious leadership. Students entered college as a cohort, taking all the same classes in a coherent curriculum that terminated in a capstone course in moral philosophy, taught by the college’s president. The entire course of study portrayed a settled, coherent body of knowledge that grew out of the singular mind of God.8
But a variety of discoveries had begun to challenge the Christian character of the college. Geologists were uncovering a past history of the earth that stretched back through millions of years. Biologists encountered species in the fossil record that no longer seemed to exist. Charles Darwin’s 1859 publication of On the Origin of Species put forward a biological explanation for life that seemingly did not require a deity and that clashed at many points with the Christian creation narrative. Biblical scholars began to show that the cosmological, social, and political beliefs of the ancient Near East were fully expressed in the Christian scriptures. The more biblical scholars worked, the more it became clear that the Bible itself had a social and textual history that bound it to specific times and places. The flood of scientific and academic knowledge made God an unnecessary postulate to explain the world and its operations.9
The college began to change accordingly, as the Christian system of higher learning came apart. In 1869, six years before Brandeis matriculated to Harvard, Charles W. Eliot published an essay in Atlantic Monthly lamenting the state of higher education. It was, Eliot thought, outmoded. He proposed in its place a “New Education,” a reordering of the curriculum to allow for choice among the disciplines. This was the so-called elective system of higher education that looks, roughly, like what we have today. Soon he became president of Harvard College and began to institute his reform program. His curricular modifications did away with the idea that truth existed as a seamless robe, that all branches of knowledge reinforced one another, and that together they revealed the mind of God. Instead, education became an exercise in choice, which involved self-knowledge, self-development, and self-actualization into a branch of inquiry rather than a fitting of oneself into the plan of creation that God had handed down and that the curriculum revealed.10
President Eliot was interested in reforming the professional schools, which is why he invited Christopher Columbus Langdell to become the Dane Professor of Law and the dean of Harvard Law School in 1870. Langdell’s subsequent innovations furthered the secularist spirit that Brandeis would imbibe.
Prior to Langdell’s efforts, legal education often involved lecturing on the rules of law. Students listened to lectures, mastered the rules, and then were expected to apply those rules to specific cases. Legal education was, in that way, like theological education. Its desired goal was the acceptance of a coherent and largely unchanging intellectual system elaborated in lecture form. The educational model was an extended catechesis. To the extent that it invited thought, it emphasized deduction rather than inquiry. But Langdell had come to believe that the study of law needed to follow the path of the rest of the university. Law in his view was a science that, like other sciences, needed to be learned inductively through specific facts and experience. The only way to do that was to return to the original sources, using cases to teach students legal principles by working through actual problems. In that way the Langdellian revolution in legal education marked a challenge to religious influence within law.11
The challenge had fundamentally to do with the pattern of thought required of a legal thinker. There had long been a bias among lawyers toward axiomatic thinking, a tendency to reason from prior rules that the system of legal education had inculcated. Law, as a result, often partook of a spirit of conservatism, a backward-looking orientation that reinforced existing social structures. The conservative impulse was especially clear when it came to the place of religion in American society. Judges presumed and often announced the special place of Christianity in the United States. They did not always articulate what they meant, and they often did not concede that their statements were in any way controversial. But having categorically stated that the United States was a Christian nation, judges would work deductively to apply that rule in many areas of life to sustain Christian privilege.12
Such affirmations were common in state courts but were also present in federal rulings. In 1844, in a dispute over a will that the Supreme Court heard because one of the plaintiffs was a foreign national, the court ruled that Pennsylvania’s law protected Christianity. The government acknowledged, the court said, Christianity’s “divine origin and truth.”13
By the time Langdell began to reform the Harvard Law School, the tendency of jurists to make such statements was waning though still frequent. In 1890 the U.S. Supreme Court upheld legislation that stripped the Mormon church of its incorporation because the church refused to renounce polygamy. In explaining its decision, the court said that polygamy was “contrary to the spirit of Christianity.” Since the United States was a Christian nation, polygamy must be forbidden. Two years later the court exempted religious institutions from otherwise neutral employment laws that prohibited the importation of labor from abroad. It did so because it was inconceivable, the court explained, that the Congress of a “Christian nation” would have limited the importation of ministers. Four years later the court upheld a Georgia law that prohibited running freight trains on the Christian Sabbath (Sunday). It reasoned that such a law did not interfere with interstate commerce, which would have made it a federal matter and would have required the law to be struck down, primarily because the law honored a day “kept by many under a sense of religious duty,” which made it simply a local or state regulation. All the rulings presumed or proclaimed the basic Christian orientation of American public life.14
Inasmuch as Langdell thought that legal education should result in the acquisition of legal rules, he personally did not challenge such thinking. Oliver Wendell Holmes Jr. criticized Langdell on this point. Law, in Langdell’s estimation, had a logic that could be discerned by encountering cases so that the unity of the field came into view. The inductive process still sought to unveil a coherent system. That made Langdell himself, in Holmes’s estimate, a “legal theologian” precisely because he looked to logic, rules, and internal consistency as the animating principle of law. Although he preached an inductive process, he still treated law as a kind of religious creed. In legal circles his orientation became known as legal formalism. It involved a focus on the specific forms of law without any sociological attention—that is, without considering the context of a dispute, the relative social power of the litigants, the political and social effects of a legal judgment, and the outcomes that a case might take for a variety of ends.15
But the Langdellian revolution in pedagogy did not necessarily terminate in formalism. Brandeis found the approach entirely congenial to an encounter with facts, data, and the grubby and contradictory realities of the world. He later wrote that the law school introduced him to legal reasoning “as an integral part of the drama of life” that worked with his social scientific orientation. Brandeis found at Harvard a secularized legal education that offered him the ability to build out the house of law by considering not what law is but what it might be, given social needs and social conflict.16
Brandeis, in fact, thrived in the setting. He graduated first in his class. It was a remarkable accomplishment, even in the more relaxed educational world of the nineteenth century. His future seemed wide open. After considering his possibilities, Brandeis decided to set up a legal practice with his friend Samuel Warren, who graduated second in the class.
On the night Brandeis was admitted to the bar they got together in Warren’s room. But in a fateful turn of events, Warren invited Oliver Wendell Holmes Jr., whom he met while working in Holmes’s law firm. The three men drank a mixture of champagne and beer. Warren and Holmes told jokes and talked. Brandeis listened, while lying on the couch. In spite of the celebration in his honor, he did not say much.17
The evening might not have seemed a momentous occasion, though it turned out to be. At the time of their meeting the men had little in common other than an interest in law, which only went so far. Even at a young age Brandeis had a desire to use law as a mechanism for social betterment, a goal that Holmes did not necessarily share. They also differed in disposition. Brandeis’s quiet conviction and his ethical sensitivity separated him from Holmes, who was a decade and a half older but who had a weary cynicism that intimated a bigger gulf still.18
Their dissimilarity was partly one of experience. Unlike Brandeis, Holmes had been old enough to fight in the Civil War. He was wounded three times, including a shot through the neck at Antietam. He emerged from the war with a grim view of human beings, a skeptical orientation toward platitudes and certainties, and a disdain for any kind of religious conviction. “When I say that a thing is true,” Holmes later explained, “I mean that I cannot help believing it. . . . I therefore define the truth as the system of my limitations and leave absolute truth for those who are better equipped.”19
That perspectival notion of truth characterized all of Holmes’s thought. The war had shown him that life was marked by conflict and struggle. Provisionality marred all human endeavors. Individuals were thrown about by forces that they could neither understand nor control, so it was no use making axiomatic pronouncements that would have to be later retracted.
His skeptical sensibility extended to law, particularly the body of evolving precedent known as the common law that dated back to when the North American colonies were part of England. Many commentators spoke of it as though it had the characteristics of God. It was rational, omnipresent, and existed through a set of rules that regulated human experience. And because Christianity had shaped Anglo-American law, many judges saw the common law as expressive of Christian norms and values in the regulation of society. England had a Christian religious establishment, they reasoned. The assumptions of that establishment were written into the legal arrangement of the English system and then continued in American law after the Revolution. The Christian orientation of the common law acted as a foundation for the Christian character of the American people and the justification for their regulation.20
Holmes rejected the traditional conception because it sought to connect law to religion or to God. As he later complained, “The common law is not a brooding omnipresence in the sky.”21
He had his own secular conception. Two years after Brandeis met him, Holmes articulated his ideas in a landmark treatise on the common law that is still cited today. From the first sentence of the book, he renounced any attempt to look to God or tradition or logic as the animating impulse within law. “The life of the law has not been logic,” he wrote, “it has been experience.”22
What he meant is that law, like people, responded to changes in circumstance and condition. The sociological maxim that one must understand external pressures on individuals to account for their behavior was equally true of the development of law. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men,” Holmes wrote, “have a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”23
From that historical starting point, Holmes sketched the centuries-long development of law as a product of social forces. He would later point out that his historical approach was just a prelude to a more wholesale reconsideration. It was designed to lead to “an enlightened scepticism” of the law as it then existed, because the historical approach required asking why the law was as it was in the first place. The question led to the realization of how much law was simply a holdover from the past, which was not a compelling basis for much of anything. “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV,” he said. “It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Studying history, in Holmes’s conception, was an invitation to consider whether “the social end” of existing law was adequate to the present day.24
The answer, he implied, was that often it was not. He wanted something else, something more attuned to the realities of the late nineteenth century. Human social knowledge needed to move beyond the unconscious, the inarticulate, and the customary. The blind guesses of the past would need to be replaced. “For the rational study of law . . . the man of the future is the man of statistics and the master of economics,” he said.25
Holmes was, in effect, offering one of the first articulations of the sociological perspective on law. The social scientific disciplines, with their testable hypotheses and their accumulation of empirical knowledge rather than tradition or social convention or religious rationale, could guide legislatures and judges toward a better formulation. Law could meet social conditions. “I look forward to a time when the part played by history in the explanation of dogma shall be very small,” he concluded, “and instead of ingenious [historical] research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.” For someone with a developing sense of social mission like Brandeis, Holmes contributed a bracing view of the possibilities of law.26
Brandeis soon joined Holmes’s project in a way that would yield an opening for American secularism. In 1890, shortly after Warren left their practice to work in the family business, the two former partners sought to apply Holmes’s theories in one field. At the time, Warren had just married a society darling named Mabel Bayard. The Warren–Bayard wedding was the high event of the season, covered in all the papers. The massive press coverage continued even after the nuptials, as the yellow press sought intimate details of the couple’s life. Mabel Warren fiercely objected to the constant scrutiny, which led her husband to consider whether there might be something like a “right to privacy” in American law.27
The resulting essay was a remarkably wide-ranging reconsideration that destabilized the system of individual rights and social responsibilities. Its effect was so far-reaching because, as the intellectual historian Sarah E. Igo has suggested, to call something private was “to make an argument about the proper relationship among citizen, state, and society.” In the early debate over secularism, the notion that one’s religion was personal and therefore private had been essential to the notion that religion ought to be decoupled from governance. Madison and Jefferson contended that religious power could be neutralized and religious disagreements could be overcome through religion’s partial privatization. By 1890, when Warren and Brandeis published their article, social relations were in flux with the rapid changes of the era. Their theoretical efforts raised a whole new set of issues, questions, and policy considerations to which jurists and legal theorists had to respond.28
The essay opened with a remarkable statement of legal modernism in the development of law. “Political, social, and economic changes,” Warren and Brandeis wrote, “entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.” In their view the extraordinary development of the past one hundred years had generated many novel rights. None was more foundational in contemporary civilization than the right to privacy, the right to be let alone.29
The task of the essay was to elaborate this right, to account for its rise, and to sketch its implications. But explaining where it came from was a little tricky. Within law, one could not just state that rights existed. They had to be related to what came before. To get around the problem, Warren and Brandeis reasoned from the common law maxim that personal papers and other writings were shielded from external intrusion. The rule seemed to recognize that each individual, because of the deeply personal nature of writing, had the right to what Warren and Brandeis called “an inviolate personality.”30
Their affirmation was, in itself, an innovation. Up until their essay, to invoke the concept of privacy within law was inevitably to invoke the idea of property. The economic marketplace presented the framework within which the law sought to protect individual liberties, so much so that for much of the nineteenth century personal liberties meant primarily the ability to enter into contracts and to establish a private order through one’s own property. Rights were in that way intrinsically bound to the status of a piece of property. A private domicile was different than a public house, with distinct rights and responsibilities. A person’s property was his private domain because it was his alone and not therefore answerable to the public.31
But Warren and Brandeis took the idea of privacy in a new direction, conceiving of it not as a characteristic of property but as one of personality. A person’s private life was an interior domain, not just what occurred in the four walls of a house but what occurred inside a mind. The ability to think, to reason, to speak candidly, and to feel emotions or to experience the world in one’s own way, rather than having society dictate and surveil a person’s thoughts and behavior, were requirements of modern life. The right to privacy was part of a wider solicitude for the rights of individuals that Warren and Brandeis thought they saw in the development of American law.32
A careful reader would have noticed a fundamental tension in their reasoning. Between the remarkable expressions of legal modernism were extended episodes of pearl clutching. The essay featured a moralistic critique of the supposedly immoral press, and its conception of the right to privacy ran counter to press freedom. The point, as they understood it, was to bind the press from the kind of intrusion into private life that the Warrens were experiencing. But what would prevent the right to privacy from muzzling the press on topics of public interest?
Warren and Brandeis acknowledged the problem, but they thought it could be minimized so long as the courts understood the distinction between public and private persons—another conceptual innovation—or between persons in their public capacity and persons in their private capacity. The press could publish what was in the public interest so long as it remained within the bounds of propriety, however understood. That would allow public matters to be discussed, while private interests would be shielded.
There is some evidence that Brandeis was not entirely persuaded by his own article. Shortly after it appeared, he wrote his then-fiancée, Alice Goldmark, to say that he had thought about writing another article entitled, “The Duty of Publicity”—“a sort of companion piece to the last one,” he said, “that would really interest me more.” Publicity, more than privacy, was closer to Brandeis’s concerns.33
But Brandeis did not immediately get around to that second article. Meanwhile, the right-to-privacy essay became enormously generative for subsequent legal thought. It was the most cited article in American legal scholarship until 1947. Its power came from its engagement with established legal standards. The legal system possessed an internal elaboration that was self-reinforcing. Current opinions made reference to past opinions in a giant web of precedent. As Roscoe Pound, another formulator of sociological jurisprudence and soon-to-be dean of Harvard Law School, explained, “Every rule is so related to and articulated with every other that any local disturbance in the system has many wholly collateral results, often entirely unexpected.” The notion of privacy destabilized the system. As people engaged with the essay, they encountered new conundrums. The act of response created fresh legal thought in order to apply the law to new situations, which set the foundation for other conceptual innovations that tended toward secularism.34
Warren and Brandeis’s article also inaugurated a wider reconsideration—not just of law and its purposes but of American liberalism as well. In some sense the article expressed a new conception of liberalism that had been a long time in coming. Dating back to the Age of Revolution liberals had united around several key propositions—that humans were free and equal in a natural state, that they possessed inviolable rights, and that they offered up some rights, but not all, to a government in return for protection. Liberals presumed that at some point in the past the arrangement had become perverted, that the rights of man became overwhelmed through a despotic coalition of priests and kings. The classically liberal proposal to fix the problem was to remove the coalition of priests and kings—that is, to remove the institutions of involuntary restraint—and then individual people would be free. Madison and Jefferson had articulated parts, though not all, of this liberal package as they promoted secularism. And for much of the nineteenth century liberals built upon the foundational stance. If human beings were granted political rights and freed from customary social forms such as the religious, the tribal, or the kinship networks that limited individual development, then, liberals reasoned, social harmony and individual flourishing would inevitably follow.35
But the emergence of new social forms in the latter part of the nineteenth century—the growth of the modern corporation, the creation of vast new institutions of finance, new markets, and new modes of exchange, and the development of an empowered federal government after the Civil War—convinced liberal thinkers that individuals could not just be freed from customary restraints and thereby properly emancipated. Once freed, that person would simply be swallowed up by other corporate forms that left them no less able to pursue their own ends. To account for the new social realities, liberals drew upon social science to construct a more substantive commitment to freedom, a positive reformulation of governance that looked to a strong state in order to protect the individual.36
The new commitment could be seen in a variety of organizations and institutions that were created in the period to articulate and to defend rights. In 1909, a group of liberal Protestants, atheists, and agnostics, many of whom were committed to some form of socialism, founded the National Association for the Advancement of Colored People (NAACP). It was not an accident that the organization invited the black agnostic social scientist W. E. B. Du Bois to direct publicity and to create the organization’s magazine, The Crisis. Du Bois had come to national prominence a few years earlier with the publication of his book The Souls of Black Folk and had since been languishing in Atlanta while he watched, powerless, as the Jim Crow regime was constructed around him. He accepted the chance to articulate his vision outside the South, moving from Atlanta University to New York City in 1910.
From his new perch as magazine editor and NAACP organizational officer, Du Bois routinely assailed American Christianity as an institution that had long been on the side of the oppressor rather than the oppressed. He invited prominent humanists and freethinkers such as John Dewey, Franz Boas, and Clarence Darrow to contribute to the magazine. The result was a consistent message. The Crisis and by extension the NAACP targeted southern white evangelicalism as the root of racial exclusion and confronted the theologies of segregation as an inappropriate civic stance in a secular republic. The organization, in a characteristic move, looked to the federal state as the guarantor of black rights against white Christian racists.37
Others began to undertake a more theoretical reappraisal of the relationship between individual rights and social responsibilities. At the head of the reconsideration was a new class of intellectuals that began to come of age in the first decade of the twentieth century. The group included people like the young Walter Lippmann, a precocious thinker who would become an influential journalist for the next forty years; Walter Weyl, an economist with two degrees from Wharton Business School who was close to Lippmann; and Horace Kallen, a philosopher from Harvard whom Woodrow Wilson hired to teach at Princeton, becoming the first Jew to join the faculty. The intellectuals were connected to a bohemian class that gathered in the downtrodden quarters of American cities—archetypally in the West Village of Manhattan—and that included activists like the anarchist Emma Goldman. The young intellectuals were opposed to what they saw as the stifling provincialism of American life and the widespread commitment to a cultural and religious past that no longer made sense.38
The young intellectuals were disproportionally Jewish. They came from the second or third generation to have immigrated to the United States, and they were especially critical of the Christian assumptions that tended to be dominant within American public culture. Jews had been at the forefront of American radicalism dating back to the 1880s. Although there were many orthodox and conservative Jews among the new immigrants that began flocking to the United States in the late nineteenth century, the vocal minority who were influenced by European Marxist or anarchist thought far outnumbered the orthodox in public political agitation. These freethinking Jews often combined their political radicalism with religious agnosticism. By the early twentieth century, as the young intellectuals began to organize, freethinking and radical Jews had begun to profess, in the historian Paul Buhle’s words, “a sense of exile from the Judeo-Christian promised land [of the United States] and an inner determination to regain their legacy.”39
The rise of an alienated class of freethinking Jewish intellectuals created the opportunity for an alliance with post-Protestant thinkers who were then assuming a more prominent place in social affairs. The post-Protestants of the era are now equally well-known figures: the social critic Randolph Bourne, the bohemian journalist John Reed, the political philosopher and essayist Herbert Croly, and, a little later, the black and closeted gay philosopher Alain Locke, who would become the herald of the Harlem Renaissance.40
Together, the young intellectuals began interrogating many aspects of American life. In their gatherings they digested and debated the social thought that was emerging out of the new academic disciplines. Lippmann turned to Freudian ideas throughout his classic 1913 book A Preface to Politics in order to show the psychological and social damage that occurred when trying to use old beliefs as a guide in the political world. Nearly everyone in bohemia took for granted that new ideas were the only ones worth considering. As Weyl put it in his 1912 book The New Democracy, “America to-day is in a somber, soul-questioning mood. We are in a period of clamor, of bewilderment, of an almost tremulous unrest. We are hastily revising all our social conceptions.” Or as the critic and editor Floyd Dell later said, looking back on his younger days, “We were of the present. And, though we did not realize it, what we wanted was an interpretation of our own time—an interpretation which would make us feel its significance, and the significance of our own part in it.”41
The urgent task, according to the young intellectuals, was the reformation of American institutions to bring them into concert with the currents of the age. According to Lippmann, that reformulation began with an emotional and mental reconciliation to the loss of transcendence. God did not ordain all the rules of life because there was no God. The recognition of loss allowed for the acknowledgment of other possibilities. People responded in a myriad of ways to the vicissitudes of modern life, based on their values, their temperaments, and their other commitments. Only “a pluralistic philosophy,” in Lippmann’s words, adopted by those “strong enough to do without an absolute faith” would allow American society to become properly liberal.42
Lippmann’s invocation of a pluralistic philosophy was a widely shared motif among the new intellectuals and an essential component of their liberalism. The concept came not from Lippmann himself but from the pragmatic philosophers with whom he had studied, chiefly William James but also John Dewey and Charles Peirce. All of the pragmatists emphasized, like Holmes, the perspectival character of knowledge and the social necessity of plural perspectives in order to arrive at a working approximation of truth. Their relativistic sensibility tended toward secularism in that it destabilized a single public perspective that established an orthodox position in society, which meant that it tended to destabilize the Protestant Christian authority that had been so dominant in American life.43
Other liberal-progressive intellectuals expanded upon the pluralistic notion. In an attempt to address the exploding population of immigrants, American policy makers had long pursued a forthright strategy of Americanization. The goal was to assimilate newly immigrated protocitizens in a way that erased or at least minimized their cultural separation from dominant Anglo-Protestant ideals. But the newly forming intelligentsia did not share that goal of Americanization. Though the precise formulations differed, the new intellectuals rejected national, ethnic, and religious chauvinism as the beginning of their theorizing. What Horace Kallen called “cultural pluralism,” what Randolph Bourne called “trans-national America,” and what Alain Locke called “race pride”—all affirmations of diversity as something to be nurtured in order to promote equality—became the intelligentsia’s guiding concepts.44
These affirmations had a dual vision that changed liberalism’s characteristic commitments. Rather than focusing merely on the individual, as nineteenth-century liberalism had done, without much success, and rather than offering up political theories that addressed only the social whole, as nineteenth-century socialism tended to do, also without much success, liberal-progressivism of the early twentieth century sought to recalibrate individual rights within social responsibilities, to develop the social matrix in such a way that the individual would achieve some kind of substantive personal freedom through social programs administered by the state. Here was an example of social thought that drew upon the new social scientific formulations in order to arrive at a fresh political perspective.45
Brandeis had started down this same path with his right-to-privacy essay—he began to clear that path with his essay—but he had been otherwise occupied for much of the next twenty years. His own reconsideration of liberalism snapped back into focus in 1910, when he became involved in the Zionist movement. Up until that point he had been a cultural assimilationist, seeing the necessity of comporting to dominant standards in order to get ahead. But he had become convinced that Jewish emancipation, under the old ideas, was always partial and subject to revocation. His apprehension grew by 1914 with the beginning of the First World War, as he watched the dark forces of ethnic nationalism gather within the United States under the banner of a muscular Anglo-Saxon Protestantism. By 1915 he was fully into his reassessment when a lynching occurred that shook him.46
The events are now well known. In Atlanta, Georgia, a working girl named Mary Phagan had been found murdered on the factory floor. The superintendent, a Jewish man named Leo Frank, was eventually convicted of the murder. The evidence against him was slim to nonexistent. There were irregularities in the trial, and a definite tone of mass hysteria surrounded the legal proceedings. All of it indicated to many impartial observers that Frank had been wrongly convicted. Frank himself loudly stated his innocence and appealed his conviction all the way to the Supreme Court. He argued that anti-Semitic public sentiment had put the jury against him. He asked the court for a new trial.
The court turned down his petition. Oliver Wendell Holmes Jr., who had earlier joined the court, chastised his colleagues for their formalistic obtuseness. “We must look facts in the face,” he said. In the Frank trial the forms of law had been observed in the sense that there was a judge and a jury and a conviction. But all the evidence pointed to a judge and a jury terrified to do anything but convict because of the anti-Semitic animus toward Frank. “It is our duty,” Holmes said, “to declare lynch law as little valid when practised by a regularly drawn jury as when administered by one elected by a mob intent on death.”47
Holmes’s warning went unheeded, but it was prescient. Soon a group calling itself the Knights of Mary Phagan broke into the jail, removed Frank from his cell, took him to Marietta, Georgia, Phagan’s hometown just outside of Atlanta, and there lynched him. The extrajudicial killing turned out to be a beginning of sorts. A few months later another group of men came together on Stone Mountain in Georgia, where they burned a cross and announced the rebirth of the Ku Klux Klan (KKK).48
Brandeis watched all this with alarm. The second Klan was led by conservative Protestant ministers who were anti-immigrant, anti-Semitic, and anti-Catholic. It promoted a commitment to white supremacy, a persistent xenophobia, and a virulent form of Protestant moralism that it thought would protect white Christian America. Although the organization’s real successes would come in the 1920s, even in 1915 the development was ominous.49
The Frank trial and its aftermath led Brandeis more fully into the thinking of the young intellectuals, notably that of Horace Kallen. He imbibed from Kallen and other theorists the connections they drew between liberalism, modernism, and cosmopolitan individualism to aid his own thinking. “The Jewish Problem,” as Brandeis termed it, became a catalyst for his intense reconsideration of individual rights in a secular political system.50
Around the time that Leo Frank was murdered Brandeis published an essay that outlined the beginnings of his theoretical pivot. The fundamental dilemma of the period, he noted, was liberalism’s somewhat complacent assumption of equality and progress. “Half a century ago,” Brandeis said, “the belief was still general that Jewish disabilities would disappear before growing liberalism. When religious toleration was proclaimed [in Europe], the solution of the Jewish Problem seemed in sight. When the so-called rights of man became widely recognized, and the equal right of all citizens to life, liberty, and the pursuit of happiness began to be enacted into positive law, the complete emancipation of the Jews seemed at hand.” But emancipation had not arrived. Anti-Semitism still persisted. The proclamation of tolerance did not involve the positive embrace of difference.51
The acceptance of alternative mores and peoples was at the heart of Brandeis’s Zionism. It involved the divorce of ethnicity and religion from nationalism—which is ironic given the subsequent development of Zionism via the state of Israel—and a reenvisioning of the United States as a nation united around secular, pluralistic ideals. As Brandeis put it a few months later, on July 4, true Americanism was embodied in the motto E Pluribus Unum, out of the many one. He reinterpreted the motto to mean not the unity created out of different states but the unity created out of diverse intellectual, cultural, and ethnic developments in American life. True American ideals, he said, were “the development of the individual for his own and the common good; the development of the individual through liberty, and the attainment of the common good through democracy and social justice.” “Not until these principles of nationalism, like those of democracy, are generally accepted,” he continued, “will liberty be fully attained and minorities be secure in their rights.”52
Not all secularists in the period agreed with Brandeis and the young intellectuals. Some who might earlier have been attracted to social Darwinism had moved into a more managed response to what they saw as the problem of undesirable populations. Eugenics and other forms of racial engineering gave them a mechanism to solve social conflict in a secular society, though even among eugenicists there was disagreement. Some looked to the active management of populations by the state. Others, such as the birth control activist and eugenicist Margaret Sanger, saw eugenics as something to be practiced as the outgrowth of individual fertility management.53
But Brandeis’s position—his conception of the relationship between individual rights, cultural pluralism, and political economy—would be foundational to the American secular order, unlike eugenics, which would soon be discredited. By the beginning of the twentieth century Brandeis had become a prominent public thinker and an influential political actor in his own right. After 1912, when he participated in Woodrow Wilson’s successful presidential campaign, there had been talk of a cabinet appointment in reward for his efforts. It never materialized because of opposition from Boston business leaders that many people had attributed to anti-Semitic prejudice. By 1915, when he began to speak on the Jewish Problem, there was not a more prominent legal personality in the United States.
Finally, in early 1916, when a spot opened on the U.S. Supreme Court, Wilson reached out to Brandeis to gauge his interest in the position. When Brandeis responded positively, his acceptance set off a nasty confirmation battle. Conservative senators immediately launched a campaign against the nomination. Brandeis worked behind the scenes to coordinate his defense through press proxies. Croly, Lippmann, and one of Brandeis’s protégés, Felix Frankfurter, then a professor of law at Harvard, took to the press to defend him. The debate was caustic, bruising, and entirely out of line with historical precedent.54
In the end, his opponents could find nothing that would stick. Brandeis made it through the nomination and took his seat on the court right as world events would make his perspective most relevant. The global order was about to encounter, in Frankfurter’s later assessment, “economic and social forces far more upsetting to the preëxisting equilibrium than the changes wrought by the French Revolution and the Napoleonic Wars.” It was in the context of global breakdown and nationalist uprising that Brandeis’s sociological jurisprudence, now informed by a reinvigorated sense of rights and responsibilities, would lay the foundations for a secular political order.55