The Frankfurter-Brandeis Dilemma

A Review of Nelson Lloyd Dawson’s Louis D. Brandeis, Felix Frankfurter, and the New Deal

The author of this book is Nelson Lloyd Dawson. He has only written one book in his whole entire life in the year 1980. One may know this if one looked him up on Google, where the only thing that comes up is the title of this book and when one clicks on that it shows some citations of the book. There really isn’t anything on him on the internet or his book.

BY IMANE HAMZA

Felix Frankfurter, one of Franklin D. Roosevelt’s most trusted advisors and friends, and Louis D. Brandeis, a member of the Supreme Court who advised FDR through Frankfurter, were much involved with the New Deal and did their best to insert their policies into it. FDR lacked a consistent philosophy, however, and this flexibility renders his advisors’ opinions and beliefs that much more important—so important, in fact, “that any adequate study of New Deal policy must give considerable attention to Roosevelt’s advisors.”1 There had been no detailed writings of Frankfurter’s or Brandeis’s policies in relation to the New Deal, nor had there been a detailed analysis of their ideas. Louis D. Brandeis, Felix Frankfurter, and the New Deal by Nelson Lloyd Dawson analyzes their philosophy and how it influenced—or at times didn’t influence—the New Deal.

By 1912, Frankfurter and Brandeis had developed a close relationship through letters, which they exchanged frequently. In these letters, they addressed America’s issues: the economy and, especially, politics. Another reason they were so close is that they were each involved in one another’s professional lives. Brandeis’s connections helped Frankfurter acquire a job at Harvard University as a professor in administrative law, and Frankfurter significantly influenced Brandeis’s election to the Supreme Court. After this, Frankfurter took over some of Brandeis’s projects. Another “measure of their growing intimacy was Brandeis’s willingness to confide in Frankfurter about Supreme Court matters, their relationship best described as a teacher-student relationship.”2 While Frankfurter’s relationship with Brandeis grew, so did his relationship with FDR. They met at a Harvard club in New York in 1906 and renewed contact when FDR became governor of New York in 1928. However, Brandeis maintained his distance, as he did not have faith in FDR thus far. Despite this fact, Frankfurter made sure to keep him informed of the events during FDR’s government years. A triangular relationship developed among FDR, Brandeis, and Frankfurter. Frankfurter did his best to recruit competent men for FDR and was deeply involved in power policy during his government years. However, his suggestions were not always accepted. Throughout the 1930s, the relationship between Frankfurter and FDR deepened out of shared political and economic struggles. Although not as developed as that of Frankfurter and Brandeis, “their friendship provided the basis for future development during the New Deal Years.”3

Brandeis and Frankfurter each had several philosophies that they believed, if carried out, were the keys to fully recovering from the Great Depression. Most of the time, they were similar because “the basis of Brandeis’s morality was economics while Frankfurter asserted that ‘the basis of his economics was morality.’”4 Believing in the humbleness of man’s mind, Brandeis never ceased to remind people that bigness, the immense amount of power that business corporations possessed, was a curse. He despised financial oligarchy and believed that true prosperity arose from small business. Frankfurter’s problem, however, was the conscience of the rich. He believed that they were greedy and apathetic, and hurt other people by being so. As a result, Brandeis and Frankfurter were both regarded as liberals. Occasionally, however, Brandeis gave off the impression that he was neither liberal nor conservative. Brandeis “was willing to use the power of the state, sometimes in surprising ways, to secure and guard the traditional values of Jeffersonian democracy.”5 He believed that morals, values, and social experimentation were what a democratic federalism needed in order to survive. Apparently, the Sherman Antitrust Act failed to fit this description and both Brandeis and Frankfurter were against it. They believed that taxation was the most important weapon. Also, Frankfurter committed himself to decentralization and believed that it was vital for public administrators to be experts; that they not only have the brains to perform their job but also be passionate about it. He stressed the importance of genuine people in public service and rejected elitism. For Brandeis, unless these people understood the curse of bigness, there could be no functioning New Deal. Frankfurter and Brandeis also believed that a massive public works spending program (in which government was involved) financed by inflexible taxation could potentially end the depression. Even before FDR’s inauguration, Brandeis doubted that FDR was willing to carry out such a program. He believed that FDR’s “position in public works was fine in quality, but not enough to really make a change.”6

Frankfurter and Brandeis remained mostly in the background during FDR’s campaign, and he worried more of the policies to be pursued after the election. With his victory that came after years of Republican control, came a vast change in government. Frankfurter’s and Brandeis’s main job was recruitment, in which they were deeply involved. They recruited many new and competent people into the government despite several handicaps. For example, they had no political strength, didn’t represent any interest group, was not supported by the force of the business community, and held no official positions that would give them unlimited access to FDR. However, they benefited significantly from Frankfurter’s close relationship with the government. As a result, many of their policies influenced FDR. However, “the myth of Brandeis-Frankfurter control of Roosevelt is dispelled by the existence of the NRA, since this agency with its concept of a government-business planning ‘partnership’ was alien to their philosophy.”7

The author of Louis D. Brandeis, Felix Frankfurter, and the New Deal claims that the National Recovery Administration (NRA) and the Agriculture Adjustment Act (AAA) were the two pillars of the early New Deal. While FDR strongly supported the NRA, neither Brandeis nor Frankfurter were enthusiastic about it, although Brandeis expressed his distaste in a more obvious way. First of all, the NRA did not really pay any attention to wage and hour provision, which were two crucial features for recovery to Brandeis and Frankfurter. Second of all, the NRA involved a reduction of production while increasing prices. Brandeis and Frankfurter believed that this would only provide limited benefits and argued “that the agency could be useful only if it served to increase the interchange of goods and services in this country.”8 They did, however, see hope in the NRA’s labor provisions which would increase demand and employment, thereby promoting recovery. In 1934, in an effort to achieve a more Brandeis-Frankfurter version of the NRA, FDR decided he wanted to keep only the wages, hours, and child labor provisions of the NRA. However, Frankfurter and Brandeis still rejected this and in 1935, the Supreme Court declared the NRA unconstitutional. This put Frankfurter in an awkward situation since he and FDR usually agreed or worked to agree on subjects. Frankfurter knew little about the New Deal’s second pillar, the AAA. As a result, he believed it “not proper to raise the matter with FDR.”9 Brandeis, on the other hand, believed that if farmers united, they could free themselves from monopolies. He “blamed the banks for boosting farm values artificially, unwisely foreclosing on farmers, and then selling the land to speculators.”10 He suggested that the government retain control of the land in order to lease it to small operators to limit bigness. In his eyes, society would have to recover before agriculture did. He came up with a program “composed of three elements: extension of credit, public works, programs to help small farmers and sharecroppers.”11 In the end, however, neither Brandeis nor Frankfurter had any hope for the AAA. One act that Brandeis did approve of though, was the Securities Act – the first law enacted by congress to regulate the securities market. Brandeis and Frankfurter’s criticisms of the NRA and AAA arose from the acts’ inconsistence with their philosophies. They also did not support FDR’s gold buying policy, “aid to business by the RFC, and inflation.”12 Unfortunately, once the first phase of the New Deal came to an end and the second phase began, the criticisms did not cease. The Second New Deal failed to fulfill the Brandeis-Frankfurter recovery program. Their program involved “heavy taxation (particularly of corporations and estates), massive public works expenditures, regularity of employment, a limit to bigness, and an introduction to greater competition and flexibility into the economy.”13 Although very influential, their successes were limited. The New Deal simply did not do what they desired it to do. They helped shape some legislation their way through the Social Security Act and the Revenue Act of 1935. Also, FDR grew to distrust large corporations, businessmen and legal advisors because of Brandeis and Frankfurter. However, “a complete analysis of their impact on the New Deal must include a study of the many people they placed in government service.”14 This also widened their influence and provided them with a lot of sources of information, which, as a result, made them among the most well informed men in Washington. Their interest in recruiting people did not arise for selfish reasons, however, for they had always stressed the professionalism of personnel and truly cared about who was involved in government. They were dedicated, hard-working men “for whom a well-fought battle was itself a kind of victory.”15

Nelson Lloyd Dawson writes Louis D. Brandeis, Felix Frankfurter, and the New Deal to explain and analyze Frankfurter’s and Brandeis’s philosophies, ideas and policies for the first time in history. He claims that “it is an analysis of how ideas influenced policy through a complex network of personal relationships.”16 He refers to Brandeis’s and Frankfurter’s ideas which definitely influenced their policies. Through their recruitment of government members, Brandeis and Frankfurter developed many different personal relationships in the government which is essentially what made them such influential figures. They passed down their policies to member after member which eventually created support for their policies. Eventually, FDR absorbed their hatred of big business and bigness.

Though FDR sometimes attempted to carry out Brandeis’s and Frankfurter’s policies in different New Deal acts, it never really occurred. This resulted in Brandeis’s and Frankfurter’s rejection of most of the New Deal Acts because they “never grappled successfully with bigness.”17 As the book plunges deeper in the New Deal, Dawson describes Frankfurter’s and Dawson’s faith in FDR as slowly fading away. They became impatient because he was uncertain of what to do after the first hundred days of the New Deal. When he did make decisions, they usually did not approve. However, Brandeis’s disapproval was more apparent than that of Frankfurter’s. On most occasion, Brandeis’s and FDR’s relationship was strained, and more times than not, it put Frankfurter in an awkward situation. Dawson believes that Frankfurter had a strategy when it came to handling FDR: when Frankfurter did not agree with FDR’s ideas, he tried his best to stay away from the subject and as long as FDR was undecided, “Frankfurter expressed his opinions forcefully.”18 Brandeis came to call FDR “the Great Experimentalist when he had almost lost all faith in him.”19 This refers to his trying out new programs in an attempt to improve the economy rather than sticking to one respectable thing. Nevertheless, after it was all over, Brandeis and FDR learned to get along. Dawson believed that Brandeis’s greatest enemy was not FDR but rather, along with Frankfurter, greed, dishonesty, and injustice.

The book could not have been written without the influence of historiography. The author knows much about the topic, from the hundreds of letters that have been exchanged by Frankfurter and Brandeis. This compilation of letters has allowed the author to understand what was actually going on and what they were really feeling. In fact, every page of the book contains at least two references to the letters. They especially empowers the author to understand the true personalities of Brandeis and Frankfurter, and allows them to get to the point where they were able to develop a friendship and “by the summer of 1912, the ‘Dear Mr. Frankfurter’ address had become ‘My Dear Frankfurter’ and the closing salutation had become ‘Most Cordially.’”20

Journalist Charles E. Kratz claims that this book is well written and carefully documented while providing us with a greater understanding of the New Deal. While Brandeis and Frankfurter failed to influence the course of policy, they were influential in various presidential decisions. Elliot A. Rosen from Rutgers University contends that Dawson attempted to show that had FDR followed Brandeis’s philosophy and interconnected it to the New Deal, the economic crisis of the 1930s could have been evaded. She believes that Dawson’s work is a failure due to his lack of research and repetition of proposals.

While the book provides useful information, the author uses more detail than is needed which makes it difficult to recognize his position on several subjects. Every chapter speaks of many different people at once, making it difficult to keep up with. Basically, it mentions almost every person that Frankfurter and Brandeis came into contact with during their “adventure” with FDR. For example, “Paul Douglas had been appointed acting director of the Swarthmore Unemployment Institute in 1930…In 1931 Raushenbush drafted a bill which Harold Groves introduced.”21 The book’s strength is its attention to detail when it comes to the relationship between Brandeis, Frankfurter, and FDR. One could learn a lot about them if they read this book.

America in the 1930s could best be described as a mess. The economy was at its absolute worst and twenty five percent of people were unemployed. The Great Depression was a severe economic crisis in the decade preceding WWII. It did not only affect America but countries worldwide. It began in the United States on Black Tuesday, the day the stock market crashed. All aspects of society were affected, from industry and construction to farming. The Great Depression was not only a result of the Stock Market Crash, but also of bank failures and Americans’ lost faith in the economy, resulting in less demand for products. Roosevelt “wanted to help people and to pull the country out of the depression.”22

The president, with the aid of his advisors, tried his best to overcome the depression by launching the New Deal, a complex package of economic programs to improve the economy. It can also be described as “not an ideological monolith, but a composite of various, often competing, social philosophies.”23 Since FDR’s philosophies were so flexible, the New Deal was widely influenced by the different philosophies of his advisors including Felix Frankfurter and Louis D. Brandeis. The Great Depression lasted until WW11. From then on, the economy began to prosper due to the increased demand in weapons and other war supplies.

This period proved to be one of history’s great watersheds. It was atrocious for Americans to make the transition from the Roaring Twenties, in which the American economy prospered and most people enjoyed life, to the abject poverty of the Depression. They found themselves struggling just to earn a dime to feed their family. It altered American culture. Instead of partying like most people were used to, they pushed themselves to work all day and maybe only work to attempt to find a real paying job. The American economy reached its lowest point after having been on its highest. The Great Depression proved to be a watershed in American Politics as well. The president’s advisors gained more power and had a bigger and more influential say in matters. Thanks to the era, our current leaders know what mistakes to avoid in order to avoid a second Great Depression.

President Franklin D. Roosevelt emerged as America’s leader as the Great Depression was emerging as America’s worst nemesis. He was well equipped to conquer the Great Depression, however, with the help of his trusted advisors which include Felix Frankfurter and Louis D. Brandeis. They were hardworking, outspoken men who never seized to stress their policy of massive public works spending financed by rigorous taxation, particularly on big business corporations. Brandeis despised the idea of bigness because he did not believe that it was democratic while Frankfurter believed that economy was directly related to morality and peoples’ conscience. Despite their efforts to implement policies in the New Deal, it never got a chance to happen and for a while, they felt like they had failed. When it was all over however, they looked back at it as a well fought battle rather than a failure. Dawson notes that “To lose to such perennial and formidable foes is painful but not disgraceful.”25

Endnotes

Student Bio

Imane Hamza is a junior at Irvine High School. She enjoys drawing and painting. Her favorite subject is science, but not chemistry. She is the oldest of four. She was born in Algeria. She is somewhat fluent in French and Arabic.