IV.  History in the Making

Having much, of course, makes one
want more, and this appears true
for Brandeis scholarship as well.

                                               -- Melvin I. Urofsky^[159]

However Brandeis voted in Whitney, the final result in the case would have been the same.  And while a vote in her favor may have made the pardon campaign on her behalf easier, it proved unnecessary.  So why is it important which way Brandeis voted as long as he wrote what he did?    

It is a truism, but one worth repeating nonetheless: context gives words their fullest meaning.  Context puts flesh on skeletal words.  The idea was not foreign to Brandeis; it is a leaf out of his book: “No law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises and to which it is to be applied.”^[160] The same, of course, holds true for Brandeis^[161] and what he wrote in Whitney.  

While others have written thoughtfully on the meaning of the words of Brandeis’ great concurrence,^[162] they have done so with too little historical backdrop.  We have attempted to provide a measure of context heretofore missing, or missing in the sense that much of the available historical information had not been collected in a single place. 

We came to this juncture by asking: “Why did Brandeis concur in Whitney?”  That question led us back not only to the life and times of Charlotte Anita Whitney, but also to those of Charles Ruthenberg.  At the end of this inquiry, some may sense that we have done little more than returned to the place from whence we began, namely, that Brandeis concurred in Whitney for jurisdictional reasons.  Even if that were true, it does not discount the importance of a fuller and more informed understanding of why Brandeis did what he did. 

As rhetorically rich and intellectually astute as Brandeis’ concurrence was, we submit that it might have been better still had he applied those insights to the facts of Whitney, much as he had done in his Ruthenberg dissent.  In light of his jurisdictional concerns, he might have voted to remand the case for further proceedings. 

Be that as it may, it is enough, for our purposes anyway, that the story of Brandeis’ concurrence has been told more fully than ever before.  And what an amazing story it is in the history of free speech in America.