Roscoe Pound and the Invention of the Living Constitution by James Patrick

This is one of a series of "text and talk" pieces by Dr. James Patrick, issued on April 27, 2019.

Let me first acknowledge my debt to a little book by John Stormer titled Betrayed by the Bench: How Judge-made Law Has Transformed America’s Constitution, Courts, and Culture, absent the reading of which I would not know Roscoe Pound.  As it turned out, Pound was the figure in whom the influence of the new science of sociology met the study of law as Pound found it at the turn of the nineteenth century, preparing the way for the acceptance of the fraud committed by Alfred Kinsey, which acceptance in turn provided ‘scientific’ justification for the sexual revolution and the destruction of the family.  This would seem to be a heavy burden to lay on the shoulders of a scholarly Nebraskan, born in 1870, who never held a judicial appointment but whose influence in the 1920s and 1930s contributed decisively to the subverting of the inherited principles of Roman law and of its English manifestation the common law.

Begin with the appearance of Pragmatism as a recognizable school at the hands of William James and Joseph Pierce.  “Pragmatism as a philosophical tradition began in the United States around 1870. Pragmatism rejects the idea that the function of thought is to describe, represent, or mirror reality. Instead, pragmatists consider thought an instrument or tool for prediction, problem solving and action.” A pragmatist definition of truth might be “that upon which one is prepared to act.”  Pragmatism is a kind of low-church utilitarianism that borrows much from John Stewart Mill.    In the work of Roscoe Pound, much of its power comes from its liaison with the new discipline of sociology, the origins of which in modern times can be traced to such worthies as Emile Durkheim, Karl Marx, and August Comte.   Whatever else it does, and for a variety of reasons, sociology considers the individual as a member of a group and a subject of history, with history understood in the Hegelian sense.  It was, remember, Hegel who made the case that nothing in thought or experience is fixed; time is forever making ancient good uncouth, and the reality of life is power or will.  Auguste Comte, born the year before the revolution, is often said to be the father of sociology.  Aphorisms attributed to him included “Demography is destiny.” And “The word 'right' should be excluded from political language, as the word 'cause' from the language of philosophy.” Emil Durkheim (1858–1917), who followed Comte,  wrote that man is “governed not by a material environment brutally imposed on him, but by a conscience superior to his own, the superiority of which he feels. Because the greater, better part of his existence transcends the body, he escapes the body's yoke, but is subject to that of society.”  Marx, famously, believed that the individual is best understood as the member of a class, which class is then subject, as Hegel had argued, to history.     

Exactly how Pragmatism, sociology, and Hegel influenced Roscoe Pound, is known by some careful researcher somewhere, but the best evidence easily available is “The Spirit of the Common Law,” which Pound published in 1921, when he was Carter Professor of Jurisprudence at Harvard.    Until mid-nineteenth century, American theory of law or jurisprudence had been heavily influenced by Sir William Blackstone (1723–1780), author of An Analysis of the Laws of England (1756), in which might be found the dictum that the business of man was to conform at all points to his maker’s will:  “This will of his maker is called the law of nature,” which “being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other.  It is binding over all the globe, in all countries, and at all times.  No human laws are of any validity, if contrary to this.”   In his long essay “The Spirit of the Common Law” (1921) Pound saw this deference to Blackstone as the source of a naïve unwillingness to move with the times and a neglect of the sociological point of view. The world was in the throes of a movement “for socialization of law, for shifting from the abstract individualist justice of the past century to a newer ideal of justice.”   Pound asks, “How does it [the law] come to be so thoroughly, so obstinately individualist in a time that looks more and more to social control for a solution to its problems and is bringing about socialization of pretty much everything but the common law?”   

Pound answered that among the retrograde influences were an original substratum of German ideas, the feudal law, Puritanism, eighteenth-century political ideas, and frontier conditions.  The result of this system Pound called “strict law,” the premise of which “held that every man of mature age must take care of himself.”   Strict law “insisted that every man should stand upon his own feet and should play the game as a man, without squealing,” a position for which Pound has ill-concealed contempt.  In the end it is difficult to know whether Pound considers the old Roman law or Puritanism as the ultimate source of individualistic, ‘strict’ law, but in any event, jurisprudence is to be revised so as to take into account larger social concerns.  What this means is that jurisprudence will be governed by teleological considerations of the general good of society, with society defined pragmatically.  There should be “limitations on the use of property to prevent anti-social exercise of ownership and to accomplish ‘the interests of society’” Secularism is to be presupposed:  “Men are saying today that material welfare is the great end to which all institutions must be directed and by which they must be measured.” It follows that “the state is the unchallengeable authority behind legal precepts.  The state takes the place of Jehovah handing down the tables of the law to Moses.”   

It was the insight of John Stormer, not my own, that Alfred Kinsey was an important link in the drive to transform common law into code law, law that simply expressed and relied upon the will and authority of the state.  There was a background.  In 1923 the American Law Institute was established by the Rockefeller Foundation, that Faustian benefactor, “to promote the clarification and simplification of the law and its adaptation to social needs.”  Analyzed by the American Legislative Exchange Council, the model codes proposed in the 1950s by the American Law Institute were found to reflect the influence of the Kinsey Reports.  Hugh Hefner said he could not have moved the sexual revolution along without Kinsey.  In fact Kinsey and his books were frauds.  He was a dedicated pervert.  He claimed to have interviewed 18,000 “average American males.”  When somebody finally got into his research, it turned out that he had interviewed 5,300, of whom 1003 were homosexuals, and 650 abused boys.  In his sample there were only 837 “average males.”  But the fraud worked because it reinforced the “everybody does it” moral climate, and made it seem unreasonable to criminalize what it was claimed ninety-five percent of males had at one time or another done.  These were the days when adultery and sodomy and pornography were against the law.  If, as Kinsey maintained, half of unwanted pregnancies were ended by abortions performed by reputable physicians, this popular practice offered a pragmatic standard that should be acknowledged in law.  The sociologists chimed in.  Representative Carol Reece of Tennessee investigated the propensity of tax-exempt foundations for funding revolutionaries in the social sciences and found that among sociologists “there are no absolutes, that everything is indeterminate, that no standards of conduct, morals, ethics, and government are deemed to be inviolate.”  And similarly the psychologists.  The common law, with its appeal to natural law, and ultimately to God’s law was done, finished, to be replaced by code law and precedent. 

It is well known that belief in natural law disqualifies nominees for the federal bench.  It is also well known that that famous constitutional lawyer Barak Obama considers the Constitution defective because, for example, the Bill of Rights prohibits the government from doing certain things to citizens while it is silent regarding those things that should be done for them.   It inhibits the desire of sociologically committed politicians to make us better for the good of all.  But Roscoe Pound’s theory has already darkened the world.  It has come to Dallas County. Recollect here the refusal of the District Attorney of Dallas County to charge those guilty of theft of less than $750 on the grounds that to charge the guilty would produce no sociological good―his words.      

James Madison wrote: 

We have staked the whole future of American civilization, not upon the power of government, far from it.  We have staked the power of all our political institutions upon the capacity of mankind for self-government, upon the capacity of each and all of us to government ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God.    

In the beginning appeal to the law of God was the unwritten constitution.  How this was abandoned, how Washington’s advice that the Constitution was made only for a moral and religious people was set aside, how the words of that famous Presbyterian Patrick Henry were forgotten, this amnesia is a historical puzzle,  He wrote:

           It cannot be emphasized too strongly that or too often that this great nation was

founded, not by religionists, but by Christians; not on religions, but by the Gospel of Jesus Christ.  

A jurisprudence founded however remotely on the principles of Madison and Jackson and the evangelical zeal of Patrick Henry cannot cohabit comfortably with the sociological law that threatens moral ruin and which under-girds a Living Constitution based on nothing more stable than judicial opinion.