In response to David’s bewilderment that I would be bewildered by Glenn Beck’s segment about Roscoe Pound, I think it’s helpful to distinguish two very different claims.
The first claim is the one that Glenn Beck appears to be making in the clip, which is that Roscoe Pound invented the concept of thinking of the law and the Constitution as cases interpreting the law. David describes this claim as “bizarre,” and I agree, which is why I posted the clip.
The second question is whether Roscoe Pound was good for American law or bad for American law, which seems to be the question that David is more interested in. David asks for my own views on Pound, and the truth is that I don’t have an opinion one way or the other: I don’t think I have read any Pound since law school. I did read an interesting discussion about how Pound has been often misunderstood in Brian Tamanaha’s new book, but that’s the sum of my exposure to Roscoe P. in recent years.
To the extent David’s broader concern is with judicial restraint, here he and I simply part ways. I have long thought that Lochner was silly, based on a nontextual and ahistorical doctrinal test that the Court was right to abandon, and that Holmes was a judicial hero for rejecting it and embracing judicial restraint. My reasons have nothing to do with “statism,” or, as David recently claimed, “winner’s history,” but rather my sense that the Constitution leaves open to the elected branches and the people to decide that which it does not prohibit.
Of course, I realize David, Randy, and perhaps some others among my co-bloggers disagree. Given David’s forthcoming book Rehabilitating Lochner, Randy’s view that Lochner is his favorite Supreme Court opinion, and my views of judicial restraint, we certainly have a range of views on the question among us. I should also add that I very much look forward to reading David’s book: I enjoyed Paul Kens’ book on Lochner when I read it in the late 1990s, and I’m sure David’s will be even more interesting. And if he persuades me that I have been wrong about Lochner all these years, then all the better.