Proponents of
sociological jurisprudence endorsed pragmatism's rejection of individual
rights. By the beginning of World War I, Pound could declare that "in
jurisprudence . . . the whole doctrine of natural rights has been definitively
abandoned." "All natural law theories," he argued, were
"purely personal and arbitrary" because such a theory could never
truly resolve social conflicts "except when all men are agreed in their
moral and economic views." Instead, he maintained
that "the concern of the law" has always been "with social
interests. His writings sought to
demonstrate that legal systems had historically recognized the moral priority
of the community. "Certain great social interests," he argued,
"have determined the growth of law from the beginning." For example,
in primitive societies "injuries to the body" were "not thought
of at first as infringements of an individual interest," but rather
"as involving infringement of an interest of a group or kindred or of a
social interest in peace and good order." But, like Dewey, Pound
recognized that "there is a social interest in the individual moral and
social life." Thus, when "securing individual interests to this end,
the law is securing a social interest." In fact, Pound declared that legal doctrine should satisfy Dewey's
test of political insitutions: whether they would "free individual
capacities in such a way as to make them available for the development of the
general happiness or common good."
Sociological
jurisprudence encouraged judicial activism and creativity in common law cases.
In most circumstances, Pound argued, courts could achieve a "jurisprudence
of ends" by devising legal doctrines that balanced the various social
interests at stake in any case. Just as Dewey argued
that "knowledge of the past is significant only as it deepens and extends
our understanding of the present," so Pound claimed that "the
function of legal history [was] one of illustrating how rules and principles
have met concrete situations in the past and of enabling us to judge how we may
deal with such situations in the present." Precedents, he maintained,
should not be understood as "furnishing self-sufficient premises from
which rules are to be obtained by rigid deduction." Thus, "the real genius of our common
law" was its ability to "giv[e] a fresh illustration of [al principle
to a concrete case, producing a workable and just re-suit." On these grounds, Justice Benjamin Cardozo,
another prominent proponent of sociological jurisprudence, stated that one of
his rules for deciding cases was "when the social needs demand one
settlement rather than another, there are times when we must bend symmetry,
ignore history and sacrifice custom in pursuit of other and larger ends."
However, progressive
jurists insisted that courts assume a more restrained judicial stance when
considering the constitutionality of a statute or governmental practice.
Legislation, Pound argued, was increasingly the product of "long and
patient study by experts, careful consideration by conferences or congresses or
associations, press discussions in which public opinion is focused upon all
important details, and hearings before legislative committees." Judges should respect the balancing of social
interests reflected in legislative output because the elected branches of
government had the greater capacity for discovering and analyzing the relevant
social science data underlying conflicting social claims. Courts, Pound
observed, had "no machinery for getting at the facts." They did not
"have the advantage of legislative reference bureaus, of hearings before
committees, of the testimony of specialists who have conducted detailed
investigations, as the legislature can address." Furthermore, governance by elected officials was
"the more truly democratic form of law-making."
"Legislation," Pound insisted, was "the more direct and accurate
expression of the general will." When the representatives of the people, after evaluating current
circumstances, enacted specific social and economic programs, judges had to be
"willing to assume that the legislature did its duty and to keep its hands
off on that ground."
Historical knowledge of
the original purposes of constitutional provisions was no substitute for
judicial lack of social science expertise. Pragmatists insisted that past
circumstances not dictate present policies. Judges, in their view, had no right
to strike down legislation merely because some inconsistency was perceived with
the intentions of the constitutional framers. The framers, Pound claimed,
neither intended nor should have intended "to dictate philosophical or
juristic beliefs and opinion to those who were to come after them."
Instead, they should be interpreted as stating some general principles beyond
the power of government to circumvent but leaving to future generations the
power to interpret those principles in light of contemporary needs and
circumstances. The authors of the constitution "laid down principles, not
rules." The particular rules they favored were only "illustrations of
these principles so long as facts and opinions remain what they were when the
rules were announced. "
Pound aimed most of his
fire at "the indifference, if not contempt" that many "courts
and lawyers" showed to the economic regulations passed during the
progressive era. In particular, he held
that decisions striking down legislation as inconsistent with the freedom of
contract were based on "rigorous logical deduction from predetermined
conceptions in disregard of and often in the teeth of the actual facts." Cases like Lochner v. New York "exaggerate[d] private right at the expense of public
right" and were based on "ignorance of the actual situations of
fact." As a result, these manifestations of "judicial jealousy of the
reform movement" "obstruct[ed] the way of social progress"; they
provided "a fruitful cause of strikes, industrial discord, and consequent
lawlessness."
Pound believed that the
original constitution, based on many principles of natural law, probably
protected certain individual rights. Indeed, he claimed that some progressive
economic legislation "might have been an unreasonable deprivation of
liberty as things were even 50 years ago." However, as noted above, he
disagreed with such jurists as Cooley and Schroeder who insisted that judges
were obligated to protect the individual rights the framers had previously
placed in the Constitution. Pound maintained that courts had to consider the
present implications of policies protecting those rights. The crucial
constitutional question was whether regulations were "reasonable . . .as
things stand now." Because courts only
"have the experience of the past," but "not . . . the facts of
the present," judges were not "competent to formulate rules for new
relations which require regulation." "What court," Pound
concluded, "that passes upon industrial legislation is able or pretends to
investigate conditions of manufacture, to visit factories and see them in
operation, and to take the testimony of employers, employees, physicians,
social workers, and economists as to the needs of workmen and of the public, as
a legislative committee may and often does?"
Although Pound's
writings on constitutional theory were primarily intended to weaken the
constitutional foundations of judicial activism on behalf of the individual's
right to freedom of contract, said to be protected by the due process clause of
the Fourteenth Amendment, Pound also believed that he successfully undermined
claims that courts should strike clown legislation inconsistent with the
individual's right to freedom of speech. Pound made this clear in a 1915
article, "Interests of Personality." That essay recognized that the
framers of the Constitution had intended to protect the individual interest in
speech. But Pound stated that
under current circumstances that interest should have no more weight than
"other individual interests of personality." In free speech cases, Pound asserted, the
individual's interest in free speech "must always be balanced" with
those social interests threatened by the speech in question. "The social
interest in the security of social institutions," "disturb[ances] to
the public peace [and] shocks [to] the moral feelings of the community"
were among the social interests that frequently outweighed the individual's
interest in free speech. Thus, Pound endorsed Lincoln's Civil War restrictions
on the press and various cases in which courts upheld restrictions on speech
rights.
Pound never suggested
that the principles of sociological jurisprudence were hostile to every
constitutional defense of free speech. In "Interests of Personality"
he claimed that the social interest in open discussion provided a better ground
for judicial activism on behalf of free speech. This "social interest in
free belief and free expression of opinion" was one of the
"guarantees of political efficiency and instruments of social
progress." Indeed, Pound added that
past cases demonstrated "an over-insistence upon the countervailing
interest of the state in its personality or over-insistence upon the social
interest in the security of some particular social institution."
Nevertheless, Pound did
not give any examples of actual circumstances where the social interest in
expression outweighed other social interests. Indeed, he never endorsed an opinion that protected free speech. Perhaps because
"Interests of Personality" primarily discussed common law rules,
Pound paid little attention to the problems that would arise when a legislature
explicitly declared other social interests outweighed the social interest in
free speech. Moreover, his other writings suggested that courts should give the
legislature the same leeway to balance the social interest in free speech as he
thought courts should give when balancing the interest in freedom of contract.
Prewar politics did not
force Pound or other progressives to confront legislation that explicitly
restricted free speech. For the first fifteen years of the twentieth century
the elected branches of government were neither passing nor enforcing
limitations on the scope of legitimate political dissent. Thus, before World
War I, most progressives were unaware of the potential that pragmatism and
sociological jurisprudence had for tolerating narrow interpretations of
free-speech rights. The burning constitutional question of that period was the
status of the freedom of contract. Pragmatism and sociological jurisprudence
proved to be powerful rhetorical tools in the progressive fight for economic,
political, and social reform. Because they "succeed[ed] in their office,"
progressives considered those ideas "reliable, sound, good, [and]
true." Nevertheless, one important consequence of this wholesale adoption
of pragmatism and sociological jurisprudence emerged: when federal and state
governments began to pass legislation explicitly restricting political dissent,
the dominant mode of legal argument in the United States was either actively
hostile to the then "traditional" conservative libertarian defense of
constitutional expression rights or, at best, silent about the nature of a
sound constitutional defense of free speech.
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