Toward a renewed sociological jurisprudence: From Roscoe Pound to Herbert Blumer and beyond

This article, based on the Distinguished Lecture presented on August 2 1, 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," "overinclusive," 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.'