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hood to which any industrial and social system should be directed."

That, I believe, was the chief reason why he was so deeply concerned with the growth of huge corporations as presenting a grave danger to American Democracy by what he called "capitalizing free Americans." In his dissenting opinion in Liggett v. Lee, he spoke of the "widespread belief . . . that by the control which the few have exerted through giant corporations, individual initiative and effort are being paralyzed, creative power impaired, and human happiness lessened; that the true prosperity of our past came not from big business, but through the courage, the energy, and the resourcefulness of small

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His belief, therefore, in preserving our fundamental rights protected by the Constitution, was no matter of individual preference, however strongly felt; a free climate of thought is indispensable for the development of individual men. "Those who won our independence," he wrote in a concurring opinion in Whitney v. California, "believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government."

He believed in seeking "for betterment within the broad lines of existing institutions," as he once wrote Robert W. Bruère; for progress is necessarily slow, and remedies nec

essarily tentative. "The development of the individual is," he added, "both a necessary means and the end sought. For our objective is the making of men and women who shall be free, self-respecting members of a democracyand who shall be worthy of respect. . . The great developer is responsibility."

He believed, never doubting, in democracy. But he knew it to be a serious undertaking which "substitutes self-restraint for external restraint." He knew also that democracy "demands continuous sacrifice by the individual and more exigent obedience to the moral law than any other form of government." Its success may proceed from the individual, and "his development is attained mainly in the process of common living."

And so Brandeis believed that every man in this country should have an actual opportunity, and not only what he termed “a paper opportunity." He was convinced that industrial unrest would not be removed until the worker was given, through some method, a share in the management and responsibility of the business. The social justice for which we are striving was, for him, not the end but a necessary incident of our democracy. The end is the development of the people by self-government in the fullest sense, which involves industrial as well as political democracy.

Thus holding that democracy was based on the theory that men were entitled to the pursuit of life and of happiness, and that equal opportunity advances civilization, he saw the threat to this way of life from the opposing view that one race was superior to the other. Less than a year after the first World War had begun, he expressed this fundamental difference of conception, speaking before the New Century Club in Boston, twenty-seven years ago: "America," he said, "dedicated to liberty and the brotherhood of man, rejected heretofore the arrogant claim that one European race is superior to another. America has believed that each race had something of peculiar value which it could contribute to the attainment of those

high ideals for which it is striving. America has believed that in differentiation, not in uniformity, lies the path of progress. Acting on this belief, it has advanced human happiness and it has prospered."

Today Brandeis takes his place in the moving stream of history as a great American, whose life work brought nearer to fulfillment the essentially American belief in equality of opportunity and individual freedom-the dream that Jefferson, whom Brandeis once referred to as the "first civilized American," had cherished, and Lincoln, sprung from such different roots. Brandeis is in their tradition, the American tradition of those who affirm the integrity of men and women.

THE CHIEF JUSTICE directed that the resolutions be received and spread upon the minutes of the Court.

Response of the CHIEF JUSTICE:

Mr. Attorney General, you are right in speaking of Justice Brandeis as a great American. It is because he was a great American, devoted to the law, using the lawyer's learning with skill, resourcefulness and, above all, with wisdom, that he was a great lawyer and lawgiver. We think of him as a great American because of his abiding faith in the principles of liberty, justice, and equality of opportunity which were proclaimed by those characteristically American documents, the first Virginia Bill of Rights, the Declaration of Independence, and the Constitution. His Americanism contemplated a society in which our continued adherence to those principles of government should, in all the vicissitudes of our history, bring to every man the opportunity to live the good and efficient life.

For him those principles were not concerned alone with the tyrannies of eighteenth century government which gave them birth. They were equally to be taken as

guaranties that the social and economic injustices which attend the development of a dynamic and increasingly complex society should not prevail. In his mind the phrase "law and order" meant more than the suppression of lawless violence by government. It signified a state of society to be achieved by a new and better understanding of social values, and by just laws which should check those social forces that in a changing order tend to withhold from men freedom and equality of opportunity. Only as we are aware of his passion for freedom and justice for all men, and of the means by which he translated it into action through a profound understanding of both the function of law in a changing world and the techniques by which law may be adapted to the needs of a free society, do we gain insight into the true sources of his power and influence as a judge.

Most progress in the law has been won by those who have had the vision to perceive the necessity for bringing under its protection or suitable control the forces which, for good or evil, affect the good order and freedom of society, and who, seeing, have possessed the craftsmanship with which to make the necessary adjustment of old laws to new needs. Progress in the law has never been easy or swift. Apart from the legitimate demand for continuity in a system of law founded on precedent, we have sometimes been slow to perceive those resemblances which call for the extension of old precedents to new facts and events, and those differences of the new from the old which make necessary the qualification of precedent or the development of new doctrine.

Some centuries passed before judges and legislators were persuaded that the law should take notice of fraud or deceit as well as robbery and larceny, and before they recognized that if the law compels men to perform contracts it should equally impose an obligation to repay money procured through fraud or mistake. When Lord Mansfield was engaged in his great work of adapting a feudal common law to the requirements of a commercial

England, his studies of the practices of merchants as a basis for an enlightened expansion of the law were regarded as a daring judicial innovation. The innovation was, in truth, no more and no less than the application of all the resources of the creative mind to the perpetual problem of attuning the law to the world in which it is to function. It was such a mind that Justice Brandeis brought to the service of the country and of this Court, when he took his seat on the Bench in 1916. The twentieth century had already brought to the courts new problems which had been as little envisaged by the law as had been the customs and practices of merchants before Mansfield's day. The demands for the protection of the interests of workingmen and for the creation of new administrative agencies, the growing inequalities in bargaining power of different classes in the community, and the recognized need for repressing monopoly and for regulating public utilities and large aggregations of capital, all called for the adaptation of the principles of the common law and of constitutional interpretation to new subjects, which often bore but a superficial resemblance to those with which lawyers and judges had been traditionally concerned.

These were problems to tax the technical skill and training of lawyers and judges, but their solution demanded also sympathetic understanding of their nature and of the part which the legal traditions of yesterday can appropriately play in securing the ordered society of today. In the long history of the law, few judges have been so richly endowed for such an undertaking as was Justice Brandeis. His career at the Bar had revealed his constant interest in finding ways by which the existing machinery of the law could continue to serve the good order of society, notwithstanding the new stresses to which it was being subjected.

Despite the demands of a busy practice, he had had the inclination and had found the time to give freely of his professional services for the protection of the public from

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