Louis Brandeis

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Gerard,

    In reference to your question, of course Paul Lombardo would be in the best position to answer, but he does mention (briefly) that Brandeis concurred in the decision, and may give some mention of his attitude on eugenics (I do not recall at this point).

    My own position, informed by the history of eugenics in the U.S., is that given Brandeis’s class and position, it is not entirely surprising that he would at least tacitly accept if not endorse eugenics ideas. I am aware of no evidence suggesting that he was an outright proponent of eugenics discourse, but even as the power and scope of eugenics in American society was beginning to wane by 1927, I would generally be more surprised if a person of his class, status, and privilege would outright reject eugenics that I would be to learn that such a person at least allowed for some semblance of eugenics, even if not taken as far as Harry Laughlin would wish.

  2. Kelly says:

    I wrote to Mr. Urofsky and asked him, and he kindly replied; one must take the decision in the context of the times. Eugenics at that time was not considered the junk pseudoscience that it is today. And it was not known that Carrie buck was raped, nor that her child was of normal intelligence. The progressive cause had a major blind spot when it came to race relations (although Brandeis always voted in favor of civil rights), so it’s not inconceivable that the progressive such as Brandeis would miss this. It would have been nice if he had dissented, but he ruled as someone of his class, education, position and, most importantly, a man of his times, would have. Although I am completely sure he would have been horrified to hear of Nazi defendants at Nuremburg using it in their defense…

  3. Steve Klein says:

    I do not buy this line of argument, that we must take the decision in the context of the times. U.S. President Andrew Jackson (notorious proponent of “Indian Removal,” expropriation, etc.) according to historians, was a racist, like many / most of his fellow Americans at the time. That does not excuse Jackson’s racism or his duplicity. Racism is racism. Evil is evil. Justices Holmes and Brandies upheld evil, notwithstanding the times in which they lived. There were many righteous opponents of racism and eugenics in Brandeis’ day. Apparently Brandeis was impervious to reason or persuasion.

  4. Joe says:

    Mr. Klein, it doesn’t totally take them off the hook, but the reasonableness of the behavior under then current understanding should be taken into consideration, particularly given the test of the time to determine if a provision violated the “liberty” clause of the 14A.

    We are the product of our times, even if some dissent, and many things done now (I think looking people in small cages where many are raped etc. will be one of them) will be seen as “evil” some time in the future. But, merely looking back using current development of human society is a bit unfair.