Illuminating the problematic history of Louis D. Brandeis
Known for his role in the early 20th-century Progressive movement, Brandeis University namesake Justice Louis D. Brandeis’ entanglement with eugenics raises concerns. Profs. George Hall (ECON) and Daniel Breen (LGLS) weigh in.
Standing atop Fellows Garden with the sun to his back, a bronze Justice Louis D. Brandeis watches over the campus bearing his name. It is a heroic statue, triumphant even. The Justice withstands an adverse wind, his gaze fixed on the heavens like the statues of classical antiquity. It also resembles the numerous statues of the American South which depict Confederate icons in similarly honorific poses. Like them, Justice Brandeis helped advance caustic ideology tied to many of the 20th-century’s tragedies.
Before joining the Supreme Court, Brandeis served as legal counsel for a think tank responsible for numerous Progressive-Era economic reforms. This group, however, was riddled with disciples of an ideology which seemingly had no place in Progressive-Era thought. This group was so influential that not even the Presidency, nor modern economics as we know it, escaped its clutches. History has all but forgotten them; their Wikipedia page is less than five hundred words long. They were the American Association of Labor Legislation, and they were eugenicists.
Eugenics, characterized as a secular religion by its late 19th-century founder Francis Galton, is the pseudoscientific belief that human races exist in a hierarchy, the “higher races” genetically predisposed to morality and intelligence, the “lower, undesirable races” crime and stupidity. Eugenicists, furthermore, believe that any interbreeding between races always creates a child of the “lesser race.”
Eugenicists therefore wish to “improve” the human species by promoting policies that increase birth rates for “desirables” and decrease birth rates for “non-desirables.” Throughout the 20th century, eugenics was used in the U.S. to justify segregation and forced sterilization, such as that of numerous Black women in North Carolina from the 1930s through the 1960s. Ideologically, it has historically guided attempts to outright exterminate groups deemed inferior, including that of Hitler and the Nazi party. Eugenics nevertheless gained such wide support in America and abroad that by 1933, 150 million Americans lived in jurisdictions affected by forced sterilization laws. Numerous American presidents were also eugenicists.
Eugenics has no basis in scientific fact: Fundamentally, it is little more than the application of racist dogmas. Even so, eugenics’ interventionism appealed to early 20th-century Progressivists, namely those of the American Association for Labor Legislation. “It is undeniable that many in the Progressive movement of the early 20th century did think of eugenics laws — as cruel as they were — as ways to ‘perfect’ society,” Prof. Daniel Breen (LGLS) explained to the Justice during a March 8 interview. Breen currently teaches a course about Justice Brandeis called “Louis Brandeis: Law, Business and Politics.”
The AALL’s sixth president, eugenicist and economist Irving Fisher, devised the Immigration Act of 1924, a bill imposing race-based quotas on Southern and Eastern European immigrants. “America must remain American,” President Coolidge said when signing the bill into law. 15 years later, this bill would close America to countless Jews fleeing the Nazis.
Fisher also founded the American Eugenics and Econometrics Societies, becoming the latter’s first president. Econometrics as a field uses statistics to suggest causal relationships between datasets, oftentimes demographic groups and social outcomes. Today, econometric applications (e.g., FBI crime statistics) are used to perpetuate racist beliefs in the United States. Fisher’s personal ideology suggests that this isn’t a bug, but a feature.
Besides Brandeis himself, who served as the AALL’s legal counsel before his appointment to the Supreme Court in 1916, other notable members include Frank Taussig and Sidney Webb. Taussig, founder of trade theory (an economic field explaining trade patterns between countries), believed that the feebleminded, drunkards, congenitally ill, and habitual criminals “should simply be stamped out.” How? “Chloroform.” Webb co-founded the London School of Economics and coined the term “adverse selection” to describe “race suicide,” a eugenicist term for how “non-desirables” would outbreed “desirables” without eugenicist intervention.
While not members per se, other influential eugenicists were Francis Amasa Walker and Margaret Sanger. Walker, president of MIT from 1881 to 1897 and director of the U.S. Census before that, referred to immigrants as “beaten men from beaten races; representing the worst failures in the struggle for existence.” Sanger, intending to quell the birthrates of “undesirables” opened the United States’ first birth control clinic.
Other Progressive initiatives, including child labor laws, compulsory education, and minimum wage, were also based in eugenics. “A crude eugenic sorting of groups into deserving and undeserving classes crucially informed the labor and immigration reform that is the hallmark of the Progressive Era,” Thomas C. Leonard wrote in a 2005 article in the Journal of Economic Perspectives. Promoters of these Progressive reforms argued that preventing children from working through labor laws would make so-called “low-wage races” have fewer children, since they “would be unable to put their children to work.”
Prof. George Hall (ECON) spoke to the Justice on March 8 about the links between eugenics and the 20th-century Progressive movement. “[These economic reforms] can stand on their own,” Hall insists, “so why did the people at the time need eugenics to argue for them?”
Louis Brandeis re-enters this picture through the AALL’s most famous member: Woodrow Wilson. While both AALL members, Wilson and Brandeis only met in 1912, by which time Brandeis had already been the AALL’s legal counsel for years. They developed a friendship and in 1916, Wilson — the same president who screened the racist film “Birth of a Nation” in the White House — appointed Brandeis to the Supreme Court, extolling his virtues as “a friend of all just men.”
It wouldn’t be Brandeis’ first encounter with the highest court in the land. In 1908 he brought the case Muller v. Oregon before the Court, writing that “the overwork of future mothers directly attacks the welfare of a nation.” Brandeis argued that women’s work hours should be better regulated because, as the providers of the next generation, they amounted to collective property which the state had to protect. Breen suggested a possible vindication of Brandeis’ actions: “Many Progressives wanted to limit working hours for everyone … reformers like Florence Kelly thought that if you started with …women, you could eventually get states to pass maximum hours laws across the board.” Less defensible, however, is what Brandeis did next.
In the 1927 case Buck v. Bell, the now-Supreme Court Justice Brandeis sided with the majority in the Court’s 8-1 decision that forcibly sterilizing people for “feeble-mindedness” didn’t violate the Constitution’s Due Process or Equal Protection Clauses. “Three generations of imbeciles is enough” reads the majority opinion handed down by the Court, written by Justice Oliver Wendell Holmes. According to Thomas C. Leonard’s 2016 book “Illiberal Reformers : Race, Eugenics & American Economics in the Progressive Era,” Brandeis endorsed this statement.
By not dissenting against the forced sterilization of “undesirables,” Brandeis tacitly endorsed eugenics and enabled its policies at the nation’s highest legal authority. Whether he truly was a eugenicist is not known. If he was, it seems he would have made it more obvious, based on how he demonstrated his support for other Progressive initiatives. “If he had thought such [eugenicist] laws were good ideas,” Breen commented, “he would very likely have found ways to let other people know he felt that way, just as he did with issues like public utility regulation and banking reform.”
Breen nevertheless called Brandeis’ failure to dissent in Buck v. Bell “deeply disappointing.” “A judge or a politician,” Breen continued, “should always evaluate laws from the standpoint of empathy … I think Brandeis should have found a way to do so in this case, even if that would have meant adjusting the usual 1920s standard of review in 14th Amendment cases.”
Even so, many modern-day Progressives would say that Brandeis — through his advocacy for jurisprudence, personal privacy, and corporate regulation — made the United States a safer, more just society.
What to do with this knowledge of Justice Louis Brandeis’ problematic history is a matter of debate. Like many cities with Confederate statues, Brandeis’ statue could be taken down and the University renamed. Another option is recognizing that the University’s values predate its supposed attribution to Justice Brandeis. Be “Brandeis University, not Brandeis’ University,” in a sense. “You can have great respect and admiration for people while recognizing they have flaws,” said Hall. “I don’t know who you name a school after who doesn’t have something in their past that could be problematic.”
When asked for her opinion on whether Brandeis University should be renamed in light of its namesake’s involvement with 20th-century eugenics, Deb Haimowitz ’23 stated, “I don’t think it would be wise to rename it. I do think it should be treated the same way Planned Parenthood treated Margaret Sanger. The school owes it to its students to publicly address it and apologize for it. One of the main ideologies of Brandeis is major social justice progress and a great way to be reminded of that is to be reminded of how things were. We’re better than that.”
Hall feels similarly: “A reassessment of people and history, we should always be doing that … one thing you learn is that all your heroes are flawed.” Brandeis was not a Confederate general, nor a conquistador. His questionable legacy is, however, something that must be reckoned with, even unto its innermost parts.