— Essay · Published May 2026 · 12 min read
The People's Lawyer
A Boston lawyer wrote a small book in 1914 about who really ran America. Two years later the men he had written about tried very hard to keep him off the Supreme Court. They failed. He served twenty-three years. What he wrote is still true. The names have changed.
There is a kind of man who, having read law and made a comfortable living from it, decides that the cases he most wants to argue are cases for people who cannot pay him. Louis Brandeis was that kind of man, in Boston, in the years just before the First World War. He called himself the people’s attorney. He did this often enough and seriously enough that the name stuck.
He represented working women in factory cases. He represented small shopkeepers against railroads. He went after savings banks for selling overpriced life insurance to immigrants and forced the industry to reform. He took the cases without fees, paid his living from his more lucrative private practice, and made enemies in proportion to his successes. By his fiftieth year he had become the kind of lawyer that other lawyers, who took fees as a matter of course, were not entirely sure how to think about. The president of the American Bar Association, sometime around 1910, said the trouble with Brandeis was not that he was wrong but that he was undignified. The complaint was that he had used the law against the wrong people.
He had a habit, also undignified, of doing his own research. In 1908 he argued Muller v. Oregon before the Supreme Court, defending the state’s law that limited women’s working hours in factories to ten a day. The opposition argued precedent — there was a recent decision called Lochner that had struck down a similar law for bakers. Brandeis argued facts. He submitted to the Court a brief that was two pages of legal argument and one hundred pages of medical reports, factory inspection records, social-scientific studies of women textile workers. The Court upheld the Oregon law. The technique was named after him; the Brandeis Brief is now standard practice in American constitutional litigation. At the time it was, again, undignified. Lawyers were supposed to argue precedent. Facts were beneath them.
By 1912 he had become interested in something larger than any specific case. He had become interested in who controls American capital. The question turned out to be answerable, and what was answerable was answered that year by a Congressional committee.
It is December 1912. The committee is the House Banking and Currency Subcommittee, chaired by a Louisiana Democrat named Arsène Pujo. The witness is J. Pierpont Morgan, the most powerful banker in America, age seventy-five, four months from his death though no one in the hearing room knows that yet. The committee’s counsel, Samuel Untermyer, has been pressing him. The transcript is on the public record.
Untermyer asks Morgan how he decides who to lend money to. Morgan answers that the first thing is character — that money cannot buy character, that a man he does not trust could not get money from him on all the bonds in Christendom. He means it. He believes he is describing a moral economy: a small number of trustworthy men extending credit to other trustworthy men on the strength of personal knowledge. He thinks this is unflattering — he is admitting that his decisions are personal rather than purely commercial. In his own mind he is offering a humble account of how the system works.
Brandeis is not testifying. He is advising the committee, behind the scenes, helping shape the questions. He listens to Morgan and sees something different. He sees a small number of men who, by knowing one another, have managed to control all of American industry through control of the gate to capital. The character defense is a story Morgan is telling himself. The actual mechanism is not character. It is concentration.
The Pujo Report, issued in February 1913, documented the mechanism with the kind of arithmetic detail that does not allow argument. About eighteen financial institutions, centered on Morgan, sat through interlocking directorates on the boards of one hundred and twelve corporations representing twenty-two billion dollars in capitalization. Twenty-two billion dollars in 1913 was an amount close to forty percent of the total value of every company on the New York Stock Exchange. The Money Trust was not a metaphor. It was a list of men, a list of firms, a list of board seats.
A year later Brandeis published a book about it. Other People’s Money and How the Bankers Use It, 1914, eight articles serialized in Harper’s Weekly and bound the same year. It is a small book, about two hundred pages, written in plain prose with no jargon. He names firms, names dollar amounts, names directors. The argument is simple: a small number of New York banks, through the interlocking directorates and through the practical concentration of investment-banking access, controlled which firms in which industries could obtain capital, on what terms, from whom. They did not need to monopolize any particular commodity. They controlled the gate to all commodities.
The book contained one sentence that has been quoted for a hundred years, often without context. “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” It is a transparency argument. He believed the men he was describing could be partly checked by being seen. He may have been too generous about that, but the sentence has earned its long life.
The book contained a second sentence, less quoted, more important. Through size, corporations, once merely an efficient tool employed by individuals in the conduct of private business, have become an institution — an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state.
That is the line. He published it in 1914 with the empirical evidence that justified it. Two years later, when the President of the United States nominated him to the Supreme Court, the men he had written about tried very hard to keep him off the bench.
January 1916. Wilson nominates him. The reaction is immediate and concentrated.
Six former presidents of the American Bar Association sign a public letter against him. Seven of the eight presidents of the Harvard Board of Overseers oppose him. William Howard Taft, the former President of the United States, leads the opposition. None of these men are bankers. They are respectable lawyers, distinguished alumni, an ex-president of the country. They oppose Brandeis on the ground that he is a radical, disrespectful of the legal profession, undignified.
The actual content of their objection, when you read what they wrote at the time, is recognizable. He had used facts where lawyers were supposed to use precedent. He had represented people who could not pay where lawyers were supposed to take fees. He had, most pointedly, written a book naming names. The opposition was not from the men he had named, who mostly stayed quiet. The opposition was from the institutional layer just outside the men he had named — the lawyers, the law school presidents, the ex-presidents of the Bar — who understood that confirming Brandeis would place at the apex of American constitutional adjudication a man who had spent the previous decade arguing, with empirical specificity, that concentrated capital was a mechanism by which formally democratic institutions could be made to serve narrow private ends.
They were not wrong about him. They were perfectly correct in their assessment of what he would do.
The confirmation fight ran one hundred and twenty-five days. Brandeis did not lobby for himself; he stayed in Boston and continued working. The Senate held formal hearings — the first time in American history that a Supreme Court nominee had been subjected to public hearings — and nineteen hostile witnesses testified against him. In June 1916 he was confirmed by a vote of forty-seven to twenty-two. He took his seat in October. He served until 1939, twenty-three years, retiring at the age of eighty-three.
What he wrote on the Court is the second half of his contribution. Most of his major opinions were dissents. Two of them, written about a decade apart, became the law decades after he wrote them.
The first was Whitney v. California, 1927. The case was about the conviction of a California socialist named Charlotte Anita Whitney for being a member of the Communist Labor Party. The Court upheld the conviction. Brandeis concurred on a technical ground and wrote separately to lay out the case for free political speech that has since become the foundation of American First Amendment doctrine.
The passage that survived him is the one about citizenship. Those who won our independence, he wrote, believed… that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
The phrase is read often as a free-speech argument and so it is. But it is also something more specific. By “an inert people” he did not mean the apathetic. He meant the exhausted, the desperate, the citizens whose material circumstances had reduced them to subsistence and who had nothing left over for the public discussion that he believed was their political duty. He was saying that economic conditions were the precondition of political conditions. Without the material floor, citizenship was performative.
The second dissent was Olmstead v. United States, 1928. The case was about telephone wiretapping. Federal agents had tapped a bootlegger’s phones without a warrant. The Court held that since no physical trespass had occurred, there had been no Fourth Amendment search and the tap was constitutional. Brandeis dissented.
The makers of our Constitution, he wrote, conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
The phrase that matters is whatever the means employed. He could not have known what was coming. He wrote the principle anyway. In 1967, the Supreme Court overturned Olmstead and made Brandeis’s dissent the law.
The single quotation most often attributed to Brandeis — We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both — does not appear in his published writings or in any verifiable primary source. The earliest record of the exact words is from 1941, two years after Brandeis died, in a memorial volume edited by a man named Irving Dilliard. A friend of Brandeis’s named Raymond Lonergan contributed an essay to the volume, and in the essay Lonergan reported that Brandeis had said the line to friends. Whether Brandeis used those exact words, no one can verify.
What is verifiable is that the sentence accurately compresses what he wrote across thirty years of public life. The Money Trust book; the Curse of Bigness essays that his former clerks collected after his death; the Whitney concurrence; the Olmstead dissent. He spent his career arguing that concentrated economic power was incompatible with self-governing citizenship.
If Lonergan paraphrased, he paraphrased honestly. The line is correct in substance even if uncertain in source. The honest thing, when invoking it, is to say so.
What Brandeis described in 1914 was a small group of New York banks controlling the gate to American industry through concentration of capital. He believed that this gate, if left alone, would convert itself into political power and dominate the state.
It did. The New Deal slowed it. The next generation undid most of the slowing. By the 1990s, the financial concentration he had described had been substantially reconstituted in a different form, and by the 2010s it had been joined by a new concentration: intelligence-as-a-service, controlled by a small number of firms — Microsoft, Alphabet, Meta, Amazon, Apple, Nvidia — that now own the principal infrastructure on which the productivity gains of artificial intelligence are deployed across every other industry.
The mechanism is not new. The names have changed. The gate, in 1914, was investment banking. The gate, today, is computational intelligence. The structural pattern is the same: a small number of firms control the upstream capacity required by every downstream industry, the downstream value capture flows back to the gatekeeper, and the gatekeeper accumulates economic position that converts itself into political position by the means Brandeis described.
The productivity premium is also larger. Goldman Sachs estimates seven percent of global output added by AI alone over the next decade. McKinsey’s central scenario is thirteen trillion dollars in additional global output by 2030. PwC’s figure for the United States alone is roughly seven trillion dollars, a fourteen percent boost to national output. Whatever the precise number, the windfall is large enough that whoever captures it will set the conditions of American life for a generation.
Brandeis would have recognized the situation immediately. He would not have been impressed by the technology. He would have recognized the gate.
The political party I am writing this for has built three instruments into its platform, and they are all his.
The Tiered Profit-Ratio Tax does what he proposed in The Curse of Bigness: it taxes scale itself, on the theory he set out a century ago, that scale beyond a certain magnitude converts efficiency into political power and that any tax system unable to register the conversion is missing the principal mechanism by which capital concentration becomes self-reinforcing. He did not have the modern instrument — the per-employee profit ratio is a contemporary measure he could not have computed in 1914. He had the analytical claim. We translated.
Country Profit Sharing does what his Whitney concurrence required. It gives every adult American citizen an annual dividend, indexed to national output, on the theory that free citizenship requires material conditions below which it cannot be sustained. It is not a poverty program, though it would reduce poverty. It is the civic floor. The dividend is what prevents Brandeis’s inert people — the citizens whose material circumstances have consumed their capacity for the public discussion he called a political duty — from becoming the dominant political fact of the AI era. He wrote about an industrial economy in which the displaced were factory workers and shopkeepers. We are writing about an economy in which the displaced are increasingly the credentialed professional class. The principle is the same.
AI Tiering does what his Olmstead dissent demanded. He wrote that the right to be let alone holds against governmental surveillance whatever the means employed. We have extended his principle to the surveillance now performed by private firms operating at the scale of governments, against citizens who have no comparable instrument of resistance. The lower tiers of the framework — the ordinary tools, the audited systems making consequential decisions about employment and credit and bail — operationalize his sunlight principle. The upper tiers — general intelligence with introspection, experiencing systems — extend the privacy floor into territory he could not have imagined but whose structural shape his writing anticipated.
We did not invent these instruments. We translated Brandeis into the vocabulary and the data structures of the twenty-first century. He did the analytical work. We are doing the political work of applying it.
He died in 1941, age eighty-four. He had spent thirty years arguing that concentrated capital would dominate the state if not constrained by political instruments capable of seeing it. The instruments his contemporaries built — the Federal Reserve Act, the Clayton Act, the Federal Trade Commission Act — were partial. They slowed the pattern. They did not reverse it. The pattern reasserted itself across the second half of the twentieth century in altered form, and is now reasserting itself again in a form much faster than the form he saw.
What we owe him is not gratitude. He was not in the gratitude business. What we owe him is the political work — the work of taking the analytical vocabulary he left us and using it on the institutions of our own moment. We owe him plainness, the same plainness he wrote in. We owe him the honest accounting of who has the gate and what flows through it. We owe him the willingness to be undignified about it.
He saw it coming. He told us in plain English. We were warned.