Below, Orin expresses amazement/bewilderment that Glenn Beck deems Roscoe Pound an important enemy of American constitutionalism, by which I assume Orin means a proper understanding of the U.S. Constitution. I watched the clip, and I’m not going to vouch for Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.
It is true, however, that Pound was an extremely influential figure who had a very negative influence on American constitutional law. In particular, Pound was the founder and leading light of “sociological jurisprudence,” which in turn influenced constitutional interpretation for decades to come, and not in a good way. (And I’m curious as to why Orin thinks its absurd to point this out, or whether he in fact thinks Pound’s influence was positive.)
It so happens that I’ve written a fair amount about Pound in chapter 3 of my forthcoming book, Rehabilitating Lochner. Here are a few excerpts:
Roscoe Pound launched the sociological jurisprudence movement with a series of influential attacks on the Supreme Court’s nascent liberty of contract jurisprudence….
Even though Justice Peckham’s Lochner opinion explicitly stated that the Court’s view of the relative healthfulness of baking was informed by “looking through statistics regarding all trades and occupations,” Pound and his fellow Progressives lambasted Lochner as the product of “mechanical” or “conceptualist” jurisprudence that ignored scientific knowledge about the health effects of long hours on bakers….
According to Pound and other advocates of sociological jurisprudence, law’s purpose is to achieve social aims. Legal rules, including constitutional rights, cannot be deduced from first principles. Judges should therefore consider the public interest and “social facts” when interpreting the Constitution. Because modern, industrialized society required increased government regulation, the scope of the police power must be interpreted to accommodate this need.
Pound derided inflexible jurisprudential theories like originalism because they fail to respond to changing times. He contended that legal rules should be only a “general guide” to the judge, who should be free “within wide limits to deal with the individual case.”
Pound “repeatedly claimed that turn-of-the century judges engaged in and lawyers believed in mechanical deduction.” Yet he both misrepresented the reasoning of Lochner, his primary example, and “offered no quotations or citations to that effect by anyone who espoused this allegedly dominant view of judging.”
I go on to point that Pound accused the Lochner majority of Darwinism, even though it was his idol, Holmes, who was the only Darwinist on the Court. Pound himself, a former botanist with prominent “Progressive Darwinist” mentors, was far more influenced in his legal ideology by evolutionary theory than were the Justices in the Lochner majority.
I also argue that to a large extent the entire theory of sociological jurisprudence, at least in the hands of Pound and his followers, was basically an intellectual smokescreen for a statist agenda that called for judges to defer to whatever the legislature wanted to do. Pound consistently held up the majoritarian Holmes as his model, yet Holmes hated facts and lacked any interest in being a pioneer of sociological jurisprudence, whose proponents claimed to be concerned most of all with ensuring that law was consistent with social facts.
In short, I find Pound’s work on constitutional theory to be rife with dishonesty, and substantively disastrous in his dismissal of the importance of economic liberty [and individual rights more generally] and, more important, his advocacy of injecting social policy considerations into constitutional interpretation at the expense of the text.
Ironically, some modern conservatives have adopted the anti-originalist Holmes and his Progressive allies like Frankfurter, all known enemies of originalism in their day, as their heroes. And it’s true that modern liberals have abandoned many aspects of the Progressive line pushed by Holmes, Hand, Pound, Brandeis and others. But the enemy of an enemy isn’t necessarily a friend.
UPDATE: In the comments, Orin writes,
David, I don’t think it’s “absurd” to point out that Pound was a major figure in sociological jurisprudence. Rather, I was pointing out what you characterize as “Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.” I gather from your statement that you will not defend it that you disagree with it, as well.
Yes, and I suspect that Beck was somehow conflating Langdell and Pound. And if that’s all Orin meant, than we agree. But I read his post as suggesting that its absurd to tag Pound as an enemy of American constitutionalism. That’s not exactly how I’d put it myself, but I take it Beck and his guest were making the broader point that Pound was extremely influential and had a very negative impact on how American academics and judges go about interpreting the Constitution, in particular substituting traditional modes of constitutional interpretation for Progressive social theory. And while Beck may have made the point inelegantly and with inaccurate details, the general point (made much more clearly by the guest) strikes me as basically sound.
CrazyTrain says:
So you disagree with much of Pound, and find some of his work dishonest. Understandable, I guess. But an “enemy of American Constitutionalism?” Seriously?
January 31, 2010, 9:24 pmOrin Kerr says:
David B:
David, I don’t think it’s “absurd” to point out that Pound was a major figure in sociological jurisprudence. Rather, I was pointing out what you characterize as “Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.” I gather from your statement that you will not defend it that you disagree with it, as well.
January 31, 2010, 9:24 pmSgtDad says:
When I read this, I thought you were channeling my grandfather, who studied at Nebraska LS while Pound was there. Your views summarize a conversation I had with my grandfather around the time of Pound’s death in the 60′s. In my grandfather’s view, no liberty was safe in the hands of a Progressive.
January 31, 2010, 9:26 pmSgtDad says:
Prof. Kerr: I don’t think Beck’s comment about Pound’s role in adopting the case method is that far off. It was certainly my grandfather’s impression that Pound wanted to use the case method. My grandfather was there.
January 31, 2010, 9:30 pmOrin Kerr says:
SgtDad,
I believe you’re making one factual error and one category error. The factual error is in thinking that Pound was responsible for the case method of instruction in law school; that is generally attributed to Christopher Langdell, several decades before Pound. The category error is in thinking that how law schools teach law in class is the same as how the legal culture at large understands what the law is; the method of interpreting the law based on case precedents is centuries older than Pound.
January 31, 2010, 9:35 pmSwan Trumpet says:
I look forward to Rehabilitating Lochner, Professor Bernstein and thank you for the preview. It sounds fascinating.
We have met the enemy and he is us. ~ Pogo
January 31, 2010, 9:35 pmAnonsters says:
Oh boy.
January 31, 2010, 9:35 pmArthurKirkland says:
Plenty of liberty was safe from gays, blacks, women and others when Pound was corroding young minds.
January 31, 2010, 9:40 pmEarly Bird says:
Darwinism and Social Darwinism are not the same thing. Holmes may well have been a Darwinist, and he may also have been a Social Darwinist, but I can’t imagine how a court could decide a case in a “Darwinist” way. Darwinism is a theory that explains the extraordinary variety of life on earth, and posits that all living things are related to all other living things. I don’t remember anything about the diversity of species in Lochner, though it’s been a few years since I read it. I do remember Holmes saying in dissent that he thought the majority was using Herbert Spencer’s Social Darwinian theories to decide the case, but Spencer’s theories are not Darwinian. They prescribe how Mr. Spencer believed society should be organized, whereas Darwinism described how speciation occurs. The two concepts are distinct, and deserve to be treated as such.
January 31, 2010, 9:42 pmrpt says:
Everyone injects their own “social policy considerations” into their constitutional interpretation. Some simply pretend otherwise.
January 31, 2010, 9:42 pmArthurKirkland says:
Does anyone with first-hand experience know whether Harvard has survived Pound’s corrosive influence?
January 31, 2010, 9:43 pmERH says:
Wouldn’t be more accurate to say you vehemently disagree with his philosophy and therefore are unable to examine his work impartially.
January 31, 2010, 9:44 pmbyomtov says:
Umm. As an outsider tp the legal academy, and the profession, I am moved to ask:
Are you guys seriously discussing Glenn Beck’s views on constitutional law?
January 31, 2010, 9:52 pmWhat next? Limbaugh on quantum physics? Palin on Keynes? (oops. that’s probably happened.)
David Bernstein says:
No you don’t, all Holmes said was “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” which in context is a clear reference to Spencer’s libertarian law of equal freedom which he expressed in Social Statics, and not a reference to “social Darwinism,” or any other biological/evolutionary theory. What you do remember are lots of people misinterpreting Holmes.
No, I both vehemently disagree with his ideology and also find him to be unusually dishonest/disingenuous. By contrast, for example, I also vehemently disagree with Holmes, but I can’t say I find his opinions dishonest, though I do find some of them morally repulsive.
January 31, 2010, 9:54 pmAnonsters says:
This is me for Billy Rehnquist. At least those of us on the left and those of y’all on the right can unite in vehemently disagreeing with ideology and finding the proponents of said ideology to be unusually dishonest/disingenuous. :D
January 31, 2010, 9:57 pmEarly Bird says:
Regardless, David, whether Pound, Holmes, or anyone else was a Darwinist has nothing whatever to do with constitutional law, right? Even if Holmes and Pound were Darwinists, that would have absolutely zero impact on their jurisprudence. If, OTOH, they were Social Darwinists, that could potentially have a big impact. My point is that you seem to conflate Darwinism with Social Darwinism, and that the two are not the same.
January 31, 2010, 10:08 pmCrazyTrain says:
And that’s how the thread gets won.
January 31, 2010, 10:09 pmSgtDad says:
Prof Kerr:
You have me there & I stand corrected. I forgot about Langdell. My grandfather associated Pound with the case method, which he disliked. (He would have agreed with Prof. Bernstein’s assessment of the man.) But, as you say, it is how law is understood that changed.
ArthurKirkland:
January 31, 2010, 10:10 pmMethinks you are being both snide and unfair. My grandfather no prejudices, especially of the racial kind. He hired black men as hands on his ranch when no one else would. They were mostly mustered-out soldiers from the 10th Cavalry & fine horsemen, in my grandfather’s very expert view. He very much believed they were entitled to the same liberty he had.
Dissenting Reason says:
while Beck may have made the point inelegantly and with inaccurate details, the general point strikes me as basically sound
Given his inelegant presentation and the inaccuracy of his supportng evidence, what makes you think he had a general point?
January 31, 2010, 10:29 pmThe Volokh Conspiracy » Blog Archive » Roscoe Pound, Glenn Beck, and Judicial Restraint: A Quick Response to David B. says:
[...] Archives « Roscoe Pound, Enemy of American Constitutionalism [...]
January 31, 2010, 10:30 pmMark Field says:
Statism?! Some people call this republican government.
January 31, 2010, 10:45 pmMark Field says:
Your last clause is wrong. Social Statics is Lamarckian, which is a biological/evolutionary theory. See, e.g., here.
January 31, 2010, 10:49 pmlgm says:
Maybe someone should tell Glen Beck that the French do not use caselaw, only laws and the constitution (of France). That might get him to value US caselaw more.
As for considering the consequences of judicial decisions, that’s what Richard Posner is famous for arguing. Conservatives seem to love Posner.
January 31, 2010, 11:12 pmNR says:
DB: And if that’s all Orin meant, than we agree. But I read his post as suggesting that its absurd to tag Pound as an enemy of American constitutionalism.
So you don’t accept what Prof. Kerr himself said he meant?
January 31, 2010, 11:14 pmArthurKirkland says:
My observation involved truth — important, overarching truth — and was aimed at a target other than your grandfather. His described concern about problems involving liberty seemed off-target, however, given the context in which it apparently developed. If your description of his hiring practices and lack of prejudice is accurate, I doubt he viewed Roscoe Pound as one of liberty’s greatest enemies of the time.
January 31, 2010, 11:20 pmBoss says:
The idea that there aren’t any limits on what you can do if you have the power to do it. That’s what Hofstadter meant. And what does Spencer have to do with that? It’s a good description, on the other hand, of the Progressives, and the New Deal, and Hofstadter’s scholarship. So obviously Holmes couldn’t have been referring to “social Darwinism.” Hofstadter hadn’t invented it yet.
January 31, 2010, 11:21 pmDavid Nieporent says:
And? Who said a republic can’t be authoritarian?
January 31, 2010, 11:49 pmMark Field says:
So republican government is the new “statism”? Interesting theory.
February 1, 2010, 12:20 amDavid Bernstein says:
Mark Field, I know that, and that just further supports my point that Holmes was not accusing the Court of “Social Darwinism.”
Because of what his guest said. Guests don’t just randomly appear on talk shows to say whatever they want.
What if someone’s concern for liberty led him to be both an advocate for African-American rights and very hostile to Roscoe Pound? Justice Harlan, whose opinion in Adair v. U.S. was lambasted by Pound in a famous article the Yale Law Journal, comes to mind.
February 1, 2010, 12:20 amArthurKirkland says:
This seems especially true on the Glenn Beck Program. That was a remarkably non-random threesome.
February 1, 2010, 12:33 amBrian Garst says:
No. He’s saying that being republican does not mean a system cannot also be statist. Just because the people want to do something through the government doesn’t mean they can. That is the very essence of Constitutionalism.
February 1, 2010, 12:36 amGuy says:
Wait, so scientists (at least in fields branching out of the general “biology” tree) are all social darwinists, even though that’s a sociological theory, not a biological one, and even though social darwinism is broadly discredited and abondoned, while the theory of evolution is universally (in scientific circles) accepted as valid?
Also, I don’t see how you can say a bizarre and false claim made to discredit someone is essentially true – insofar as that person deserves to be discredited for some completely unrelated reason.
February 1, 2010, 2:53 amDavid Bernstein says:
I said that Pound accused the Lochner majority of “Darwinism,” (not “Social Darwinism”) and pointed out that he was a former botanist who was influenced in his legal views by evolutionary theory. I could have added that his mentors Edward Ross and Lester Ward were prominent social scientists who were heavily influenced in their social science views by evolutionary theory. Given that I haven’t accused anyone of being a “Social Darwinist,” nor did I say that Pound had to allow evolutionary theory to influence his constitutional ideology, I obviously didn’t mean that all scientists were “Social Darwinists,” much less that they are now.
February 1, 2010, 3:22 amgrog says:
And while Beck may have made the point inelegantly and with inaccurate details, the general point (made much more clearly by the guest) strikes me as basically sound.
So, while you don’t support the actual claim being made, you do attack the intellectual tradition from which you believe the attack emanates, the penumbra suits you, and you’re happy with the current jurisprudence.
February 1, 2010, 5:12 amThomasD says:
Everyone injects their own “social policy considerations” into their constitutional interpretation.
To the extent that Constitutional primacy is a social policy consideration that is correct.
Are you guys seriously discussing Glenn Beck’s views on constitutional law?
Yes, because in a government of the people, by the people, and for the people learned individuals should never attempt to address issues of popular concern. It is so much better that we stifle popular concern or if that not possible to simply ignore it. Emphasis on simple.
February 1, 2010, 9:27 amAmpipolis says:
I’m no legal expert but what I don’t get is why, if sociological jurisprudence is desired, laws and even the Constitution itself can’t be changed to accomodate it. Where is the need for judges to rule beyond the text, other than their impatience or disagreement with the representative branches of government? If sociological jurisprudence is really what we want, why haven’t the documents been changed to accomodate it?
It seems to me that this is more a change in structure than in philosophy, with an unrestrained court now free to ignore representative lawmaking and constitutional restrictions.
February 1, 2010, 9:43 amDanny says:
I love it that you guys are having to deal with Beck. He’d a never thunk it.
February 1, 2010, 9:56 amI forgot about this until this morning « A Conservative Shemale says:
[...] I forgot about this until this morning 2010 February 1 by jenn1964 When I followed a link to The Volokh Conspiracy. [...]
February 1, 2010, 10:21 amAnonsters says:
I’m afraid I really don’t even know what it means to say that Pound was accusing the S. Ct. of “Darwinism,” but not “Social Darwinism.”
Pound was accusing the Court of adopting the following theses? (From SEP’s entry on Darwinism):
1. Species are comprised of individuals that vary ever so slightly from each other with respect to their many traits.
February 1, 2010, 10:28 am2. Species have a tendency to increase in size over generations at an exponential rate.
3. This tendency, given limited resources, disease, predation, and so on, creates a constant condition of struggle for survival among the members of a species.
4. Some individuals will have variations that give them a slight advantage in this struggle, variations that allow more efficient or better access to resources, greater resistance to disease, greater success at avoiding predation, and so on.
5. These individuals will tend to survive better and leave more offspring.
6. Offspring tend to inherit the variations of their parents.
7. Therefore favorable variations will tend to be passed on more frequently than others, a tendency Darwin labeled ‘Natural Selection’.
8. Over time, especially in a slowly changing environment, this process will cause the character of species to change.
9. Given a long enough period of time, the descendant populations of an ancestor species will differ enough to be classified as different species, a process capable of indefinite iteration. There are, in addition, forces that encourage divergence among descendant populations, and the elimination of intermediate varieties.
David Bernstein says:
He may have meant something like what we now call “Social Darwinism,” but this is pre-Hofstader, before “Social Darwinism” was in common parlance, and it’s meaning more or less clear. Pound used the word “Darwinism.”
February 1, 2010, 10:35 amW. Keller says:
The thing I find fascinating is the whole idea of “Constitutional Law”. The framers took four, count them, four hand written pages to clearly explain our form of government. They added a fifth to cement the Bill of Rights. Today there are tens of thousands of pages of text of cases all to explain what the framers meant in those four hand written pages. What if they meant what they said??
You all make your living bending the constitution to mean what YOU believe it means. Your competitors do the same. The American people are left to deal with your “dueling briefs”.
How about this – back the hell up! The framers gave us a clear path to changing the Constitution as well, a process that has been exercised in-frequently throughout our 200 year + history. Again, the power is clearly in the hands of the people, not the legal establishment.
Honestly, I wonder if the legal establishment truly understands the depth of the hatred of all things legal – when new law is created from interpretation of original law that is used to manipulate and control the people. Constitutional Lawyers continue to pervert the framers principles of a small and confined federal government. As it grows larger, it becomes more dictatorial. This process, if continued, can not end well. A populace, under the boot heel of a authoritarian and tyrannical federal government, will eventually be forced to throw off this burden.
I would point out that it would be better to curb the federal government now. But, of course, the growth of law and regulation is how many of you make your living. As a result, I find our long term prospects rather gloomy – complete subjugation to an tyrannical ruling class drunk on its own power or armed revolt. My money is on armed revolt.
February 1, 2010, 10:38 amMark Field says:
I agree with you on this; what I’m pointing out is that he may very well have been accusing them of Lamarckism. IOW, Holmes WAS (or may very well have been) accusing them of following “some other” evolutionary theory.
In a word, no. Republican government does not rest on the Constitution, it rests on the sovereignty of the people as a whole. The only reason we follow the Constitution is because we consider it an expression of the sovereign will. To the extent, though, that the sovereigns decide to do something different, that’s not “statism”, that’s the exercise of their sovereign prerogative.
February 1, 2010, 10:54 amSgtDad says:
I think a lot of people are talking past each other because they define words & concepts differently. To Pound, according to my grandfather & based upon a bit of study 30+ years ago, “Darwinism” as applied to the law meant a gradual evolution of law over time.
But Pound was a Progressive. In his view, whatever issue he had an opinion on, was self-evident. The resolution (his opinion) was therefore beyond political dispute. The educated elite would decide and messy democracy would be dispensed with. To allow judges to incrementally tinker with the Progressive solution was to be resisted.
Liberty was not safe with Pound & the Progressives because they were and are at heart elitists who want to decide everything themselves. The elite would govern & tell people what is best for them.
This tendency is, of course, precisely what the Framers — especially the Anti-Federalists — sought to restrain. That a supposed constitutional scholar would so distort the the Constitution tells us just how powerful ego and hubris can be. It was an aspect of Pound’s character that my grandfather particularly despised.
ArthurKirkland:
February 1, 2010, 11:00 amJust what makes you think you knew what my grandfather thought? Or that you are in a better position than he to assess Pound’s character? That you would make such an assertion suggests to me that you have succumbed to the same hubris and contempt for democracy as did Pound.
txjim says:
W. Keller is right. I’m sick of watching lawyers twist common sense principles until they seem rendered meaningless, lost in minutiae. Sic semper tyannis.
February 1, 2010, 11:08 amJack Okie says:
W.Keller wins the thread! Every time I come here the main impression is of legalistic onanism. While the Confederacy was wrong in many things, their dispensing with a Supreme Court appears increasingly brilliant.
And Mr. Keller accurately describes the mood in the countryside.
February 1, 2010, 11:20 amCatoRenasci says:
When I saw the Beck clip, I thought the accusation that Pound was responsible for the case method was incorrect, and that the case method came into the American law school through Langdell at Harvard a generation earlier.
I would also point out that Beck and his historians – who are not lawyers as far as I know – were also wrong to conflate the case method with Progressivism generally, suggesting somehow that some sort of original intent statute reliance would be more traditionally consistent with views of the Founders. This is surely dead wrong, and in fact stands the thing on its head: the Common Law approach of incrementalism in interpretation involving the application of the “law” to specific cases, and reliance on precedent (except where explicitly overruled by statute) and the judicial interpretation of statute law, is the essence of the English model on which the Founders based their jurisprudence. It is the Continental Europeans who have preferred the statutory approach based on Roman law, as most clearly seen in the Code Napoleon, but already in evidence before the 19th century.
The Constitution does not change that fundamental framework. The law continues to develop organically. The real question Beck should be looking at, IMHO, is how we got from a jurisprudence that sought to be faithful to the Founders intentions – think Story – to the jurisprudence that intentionally sought to interpret the Constitution in “progressive” ways ala Pound and his ilk.
Beck really needed a good legal historian to keep things on track. Unfortunately, most historians don’t understand the law or the legal system very well and most lawyers don’t know jack about history, whether the history of the law or the history of ideas that undergirds the law. I came to law school after doctoral work in history focusing on the 18th and 19th centuries, and made my summer project before starting law school reading through a list of books on the law starting with Holmes’ The Common Law and ranging from Maine, Pollock & Maitland, and Plucknett through Karl Llewellyn and, of course, Blackstone.
On the historical side, one could also quibble with his failure to distinguish among the various forms of progressivism in the early 20th century and to sort the truly reform aspects – especially the adoption of the initiative, referendum, and recall in states like California, which, IMO, are devices that place more power in the hands of the average citizen – from the more purely ‘goo-goo’ aspects which give us the whole ‘rule by experts’ stuff. Interesting that Wilson’s close friend Col. House (who played a damnable role in getting the US into WWI, but I digress) wrote Philip Dhru: Administrator, a novel promoting the rule by elite technocrats. The politics of that period is far more complicated than most people realize: the Democrats successful blending of the “scientific racism” and “rule by experts” progressivism of the academic elite, including of course Prof. Wilson with the agrarian populism of Bryan and the racist populism of a Bilbo or Watson — all made possible by Teddy’s foray into progressivism in opposing Taft in 1912. Absolutely fascinating!
February 1, 2010, 11:20 amDon Meaker says:
Part of the system of checks and balances is that a bad case precedent based on legislative law can be overturned by the legislature by changing the legislative law. That this is not done is rather a shame. When bad case law precedent is based on the Constitution, that can be corrected by Amendment, but also by restricting the powers of the court to review. That this is not done is rather a sham.
February 1, 2010, 11:26 amCJColucci says:
I’m afraid I really don’t even know what it means to say that Pound was accusing the S. Ct. of “Darwinism,” but not “Social Darwinism.”
He may have meant something like what we now call “Social Darwinism,” but this is pre-Hofstader, before “Social Darwinism” was in common parlance, and it’s meaning more or less clear. Pound used the word “Darwinism.”
So Pound didn’t use a term that hadn’t been invented yet. But Pound, a long-time botanist, knew what actual “Darwinism” was, and could not possibly have meant that judges were using it because that would be literally senseless. Although the phrase “Social Darwinism” had not yet come into common use, many thinkers had, by the early 20th century, applied Darwin’s insights — often incorrectly — to social, political, and economic phenomena, Spencer among them. There’s just nothing else Pound could have meant but what we now call “Social Darwinism,”, and no one is suggesting any plausible alternative.
February 1, 2010, 11:27 amDavid Bernstein says:
Colucci, I’d have to go back and look up the full original quote and context, but meanwhile the point remains: the fact that I noted that Pound was a former botanist whose social and constitutional views were far more influenced by evolutionary theory than, say, Peckham’s, and therefore it’s ironic for him to accuse Peckham of “Darwinism”,
February 1, 2010, 11:44 amin no way logically suggests that I think that Pound was a “social Darwinist” as that phrase is typically used today, much less that all botanists/scientists/biological scientists were “social Darwinists.”
David Bernstein says:
No, go back and read the dissent. He’s clearly accusing them of adopting a radical libertarian theory of the Constitution akin to the theory set out by Spencer in Social Statics. He chose Social Statics because it’s alliterative–Spencer’s Social Statics, not as a commentary on Lamarckianism. He could have just as easily picked On Liberty, Christopher Tiedeman’s constituional law treatise, some other libertarian work. But who would remember, “The Constitution Does Not Enact Mr. John Stuart Mill’s On Liberty?”
February 1, 2010, 11:48 amCatoRenasci says:
Further to my earlier post, I think Beck is to be commended for taking on the serious questions of history and the development of the political philosophy — or perhaps its less coherent than that, but a Weltanschauung, nonetheless — which charactarizes modern “progressive” thinking.
Very few Americans, even (especially?) those with elite educations, know very much American history at all, and what they know rarely includes a passing acquaintance with the important currents of the ideas which have shaped our history, let alone an in depth understanding of the history of ideas from the 17th & 18th century thinkers in whose works the Founders were schooled, through the development of utopianism, socialism, and Marxism in the 19th, or the various forms of positivism, pragmatism and the like that so dominated the 20th century.
We are also still suffering in intellectual life from the pas d’ennemi a gauche approach in which intellectuals are (to be kind) sparing in their criticism of the left, including those who were fellow travelers of the Soviet bloc, but even mainstream intellectuals still fear inordinately any attempt to correlate the current left with the totalitarian Marxism of Soviet or Chinese communism, branding it “McCarthyism”, even as the truth of many of the accusations of the old American right have been proven through the release of the Venona transcripts and the opening of the Soviet archives. (Hiss and the Rosenbergs really were spies, it turns out) Every college student needs to read Stephan Courtois, et. al’s The Black Book of Communism.
We are paying for the Grammascian long march through the institutions in the ignorance of an entire generation, almost two generations.
February 1, 2010, 11:52 amPlease tell me Rehabilitating Lochner will be available on Kindle says:
Please tell me Rehabilitating Lochner will be available on Kindle.
February 1, 2010, 12:03 pmRalph Gizzip says:
Considering the crap we’re getting from the current crop of Harvard educated lawyers in Washington D.C. I’d say the answer to your question is a resounding NO.
February 1, 2010, 12:10 pmArthurKirkland says:
What if someone’s concern for liberty led him to be both an advocate for African-American rights and very hostile to Roscoe Pound?
That might constitute the exception that proves the rule.
February 1, 2010, 12:28 pmBrent Cooper says:
ROSCOE POUND, PLAGIARIST!
Speaking of dishonesty on Pound’s part, look past his constitutional law work and look to his “scholarship” generally. As Prof. Brian Leiter alertly uncovered a few years back, Pound began the tradition of plagiarism at Harvard Law School (marking the trail for celebrity law professors like Charles Ogletree and Larry Tribe):
http://leiterreports.typepad.com/blog/2005/02/roscoe_pound_pl_1.html
Or should I say Harvard Clown School?
February 1, 2010, 12:34 pmhttp://harvardclownschool.blogspot.com/2008/05/harvard-clown-school.html
Brent Cooper says:
Correction — just realized Leiter credited Prof. Brian Tamanaha for uncovering Pound’s plagiarism. In case anyone wants to follow up, his info is here:
February 1, 2010, 12:36 pmhttp://testwww.stjohns.edu/academics/graduate/law/faculty/profiles/Tamanaha
CJColucci says:
the fact that I noted that Pound was a former botanist whose social and constitutional views were far more influenced by evolutionary theory than, say, Peckham’s, and therefore it’s ironic for him to accuse Peckham of “Darwinism”,
in no way logically suggests that I think that Pound was a “social Darwinist” as that phrase is typically used today, much less that all botanists/scientists/biological scientists were “social Darwinists.”
The question was, “what else could he have meant?” It is literally impossible for legal views to be Darwinian, except to the extent that Darwinism influences social thought, which, in turn, influences legal thought. It is possible to imagine forms of Darwinian social thought other than Social Darwinism, but that, and not its conceivable Darwinian competitors, was the big idea of Pound’s day, even if the term hadn’t come into common use. So the answer to the question “what else could he have meant” is….?
February 1, 2010, 12:52 pmMark Field says:
Agreed.
Could be. Holmes certainly paid close attention to the rhetorical impact of his writing, and maybe the alliterative roll of the phrase was enough. But maybe, just maybe, he was also making a more substantive criticism. Just a thought.
February 1, 2010, 12:54 pmSgtDad says:
That confirms another of my grandfather’s pet peeves about Pound.
I disagree very strongly. I see no evidence that the “rule” you allude is exists. And the comment is a non sequitur. We managed to fight a civil war over the rights of African-Americans without the Progressive Movement managing us. Heck, we even adopted the 14th Amendment without the Progressives.
February 1, 2010, 1:15 pmAri Tai says:
How civil are societies that don’t have our behavior of using past cases to extend and interpret their constitutions and laws? In these countries the law says what the judge decides it says after hearing the dispute and reading the statutes and constitution as written. Meaning I and the party that have a complaint get a date with a judge, we explain our disagreement, he opens the statutes, finds the appropriate passage, checks the (State and Federal) constitutions for anything relevant and says “I believe the law says this about your disagreement, and here is how and what I’ve decided.” If we don’t like what this Judge says, we go upstairs and ask for a date with the next level higher court, they do exactly the same thing. No reliance on past case law – or torts (and perhaps even the lower court’s work). If the people want more certainty at the edge cases, they, thru their representatives, write more law (or less law, with clearer language subject to less interpretation and constraints on application) to resolve the issue going forward.
Seems we’ve created an industry and protected class of unknown benefit relative to, say, the West German code (which the U.S. “gave” to post WWII countries like West Germany, and was later adopted in other places Japan and Taiwan,iirc). Does anyone have the statistics on the impact of the professional legal class, country-by-country? The costs of the legal system (private and public), per capita? These are all below-the-line economic costs. Someone should figure out if and when these cost are such a burden on a country’s productivity that the general population suffers (relative to citizens of a less regulated, more free country).
Granted, these governments without large numbers of lawyers per capita are usually parliamentary systems that can decide to turn 180 degrees on Monday, and make it so by Friday (v. our years of sand-in-the-gears save for events that mobilize the entire populace which then has the political class running hard to get back out in front of the thundering herd (think WW2 and 9-11). Which is exactly as the founders desired, I suspect.
February 1, 2010, 2:15 pmdragline762 says:
I wonder if Pound’s first love, which was evidently botany, influenced his views on the Law. It is easy to suppose that he had a great desire to use his knowledge of darwinism and how it pertains to plants and superimpose it into his new field of study. Comments please?
February 1, 2010, 6:21 pmThe Volokh Conspiracy » Blog Archive » Roscoe Pound on the Second Amendment says:
[...] David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the [...]
February 2, 2010, 6:12 pmTweets that mention The Volokh Conspiracy » Blog Archive » Roscoe Pound, Enemy of American Constitutionalism -- Topsy.com says:
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February 3, 2010, 9:22 am