| Abstract: | This article, based on the Distinguished Lecture presented on August 21, 2001, at the annual meeting of the Society for the Study of Symbolic Interaction in Anaheim, California, proposes a synthesis of Herbert Blumer's macrosociological perspective on the race question with Roscoe Pound's philosophy and science of law (i.e., his so‐called sociological jurisprudence), Joseph Tussman's and Jacobus tenBroek's juridical methodology, and Philip Selznick's sociology of responsive law. The compound so produced will help to establish a foundation for a praxiological sociology of American constitutional law. The article focuses on the problem of legislative‐made “classifications” and their relations to the legitimate public purposes entailed in the enactment of statutes, laws, and decrees. Such classifications become problematic when they are said to be “underinclusive,” “over‐inclusive,” or both in seeking to effect their aims. Strategic research sites for this issue are racial and ethnic classifications that single out one or a limited cluster of racial or ethnic groups for special benefits (“affirmative action”) or restitution (“reparations”). Calling for a reinvigoration of Pound's pragmatic approach to sociological jurisprudence, I show how Blumer's analysis of the “color line”—when seen in relation to the original intent of the makers of the Thirteenth, Fourteenth, and Fifteenth post‐Civil War Amendments to the U.S. Constitution and, using Tussman's and tenBroek's showing of how such categorizations might be both methodically evaluated and applied to the challenged classifications—provides grounds for reconsidering whether the latter are instances of “reverse discrimination” and, hence, violations of the constitutional requirement of “equal protection of the law.” The science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society. —Roscoe Pound, Justice According to Law We did not hold it necessary to wait for nature to put a canal across the Isthmus of Panama, and we shall not much longer hold it necessary to wait for nature to dig the legal canals that will give security to neglected human interests which clamor for recognition and protection. —Roscoe Pound, “Juristic Problems of National Progress” |
