Brandeis, Gitlow, and the Supreme Court’s Transformation During the Interwar Years

The U.S. Supreme Court’s emergence as a significant force in protecting non-economic personal liberties was one of the most important political and legal developments of the 1920s and 1930s. The Court’s increasingly rigorous scrutiny of legislation that restricted personal liberty also had profound implications for federalism insofar as the Court, during these decades, began the process by which it has incrementally incorporated into state law nearly all of the liberties prescribed by the Bill of Rights of the U.S. Constitution. Marc Lendler makes an important contribution toward an understanding of these events in his fine study of Gitlow v. New York, the 1925 decision in which the Supreme Court began to nationalize the Bill of Rights by declaring that the First Amendment’s provisions guaranteeing freedom of speech and freedom of the press are binding upon the states. The Court’s newfound solicitude for personal liberties owed much to the influence of Louis D. Brandeis, whose immense contributions to the development of American law before and during his long tenure (1916–39) as a Supreme Court justice are beautifully chronicled and shrewdly analyzed in Melvin I. Urofsky’s biography.

In Gitlow, the Supreme Court sustained the conviction of Benjamin Gitlow, a member of the American Communist Party, for violating a New York statute that criminalized the advocacy of “the doctrine that organized government should be overthrown by force or violence . . . or by any other illegal means.” Although this decision left Gitlow in jail, the case greatly advanced the cause of civil liberties not only because of the Court’s offhand dictum nationalizing the free speech and free press clauses of the First Amendment, but also because of the influential dissenting opinion of Oliver Wendell Holmes, Jr., in which Brandeis joined. Declaring that “every idea is an incitement,” Holmes contended that the government could criminalize speech only when there is a very close proximity between words and illegal actions. Holmes and Brandeis already had espoused broad theories of free speech in their dissents in earlier cases involving prosecution of opponents of U.S. participation in the First World War, and Brandeis developed these ideas more fully in his magisterial concurring opinion in Whitney v. California (1927). More than forty years later, in Brandenburg v. Ohio (1969), the views of Brandeis and Holmes became the law of the land.

Lendler meticulously guides the reader through complex political and procedural mazes that culminated in the prosecution of Gitlow and the Court’s affirmation of his conviction. Although Lendler brings Gitlow into careful focus within the context of other freedom of speech cases, he says little about the case’s significance in the process of the nationalization of the Bill of Rights. The book ignores Pierce v. Society of Sisters, a case in which the Supreme Court, only one week before its decision in Gitlow, struck down an Oregon law requiring all children to attend a public school; and it barely mentions Meyer v. Nebraska (1923), in which the Court invalidated a Nebraska law prohibiting the teaching of German. Meyer and Pierce are seminal civil cases because they marked the first time the Court invoked the due process clause of the Fourteenth Amendment to protect non-economic personal liberties. Although the Court based these decisions on economic rights, both decisions included dicta that espoused a broad vision of human liberty that presaged the Court’s emergence as a guardian of personal freedoms. Lendler’s book would be more resonant if it explored Gitlow’s relationship to these cases, which formed a bridge between the Court’s doctrine of substantive due process to protect economic rights and its use of substantive due process and nationalization of the Bill of Rights to protect civil liberties.

Lendler’s book...