Roscoe Pound, Enemy of American Constitutionalism

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.

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