If Brandeis is the answer, what was the question?
No doubt many different responses are possible. My purpose is to consider whether Brandeis.can help resolve the postmodernist crisis in constitutional law. Many scholars have now lost faith in the possibility of providing constitutional law with a firm theoretical foundation. One response would be to give up on the entire constitutional enterprise, but another is to abandon the need for a foundational theory. Legal pragmatists, looking for inspiration to pragmatist philosophers, such as William James and John Dewey, favor this nonfoundationalist approach. But, if we are to proceed without a foundation, is anything left for us but a rudderless journey of ad hoc decision making?
Critics on both the Left and the Right argue that pragmatism is bankrupt as a source of legal theory. Opponents on the Left consider it a complacent ideology based on facile acceptance of the status quo. Those on the Right scorn legal pragmatism as unprincipled and incompatible with the rule of law. Thus, legal pragmatism stands accused of being on the one hand tradition-bound and on the other a source of unrestrained judicial activism. As a legal pragmatist, I consider these to be serious criticisms which implicate important legal values.
It is certainly possible to fight out this dispute purely on the level of theory, but that strategy itself seems decidedly unpragmatic, for pragmatism is, in part, a call for less obsession with theory and more attention to concrete practice. Taking a more concrete approach, I will argue that Justice Brandeis provides a strong counterexample to these criticisms. While a notable practitioner of pragmatism, he also was known for his crusades for social change, his deep adherence to moral principle, and his legal craftsmanship. His example can teach much about how legal pragmatism can be translated from jurisprudence to practice.
In part I of this essay, I will explain the genesis of legal pragmatism and explore the arguments of its critics. Part II then presents Brandeis as a counterexample to these criticisms. Critics might well respond that Brandeis did have various admirable qualities, but that those qualities were independent of - or even inconsistent with - his pragmatism. In part III, I will argue that the various themes in Brandeis's thought are coherent. In his judicial opinions, we can discern a basis for a coherent pragmatist vision of law and community. Consideration of this vision also highlights connections between Brandeis and another current school of constitutional theory known as republicanism. The Brandeisian vision combines the claims of individuality with those of community. In the course of this essay, I hope to dispel the view - common among both its critics and supporters - that legal pragmatism is essentially banal. On the contrary, it can offer passion and principle as well as prudence.