One other difference between what Brandeis wrote in Ruthenberg and Whitney is worth some reflection; it concerns the question of the burden of proof in criminal syndicalism cases argued after Schenck v. United States.^[129]  Specifically, which side (the prosecution or the defense) bears the burden of making such a showing to the trier of fact?  In Ruthenberg, Brandeis seemed to be saying that such a burden rested with the state: “The jury [was] not instructed that there must be clear and present danger of immediate violence to justify conviction.”  In Whitney, Brandeis appears to point in the other direction: “The legislative declaration” of the California syndicalism statute creates “a rebuttable presumption” that the clear and present danger “conditions have been satisfied.”  By that measure, the state need not offer such proof as part of its case in chief.  Rather, it would be incumbent on the defense to rebut the presumption of danger.  Since Whitney’s lawyers had neither offered rebutting evidence nor sought a jury instruction challenging the legislative presumption, the Supreme Court (Brandeis insisted) was unable to take the matter up de novo in a state case.^[130] 

     Had Ruthenberg lived, the Whitney concurrence would have been far more modest.  It would have been a short and technical opinion, and devoid of the luster that made it famous.  In other words, it would have been lost to history.