What Would Roscoe Pound Do?

Washington and Lincoln -- The president's executive order banning travel from seven Muslim-majority countries has been overturned in one fashion or another by federal courts, but likely the order will be re-issued in somewhat different form and will again come before the judiciary. There is much speculation about how courts will eventually rule, as the issue pits fundamental civil rights against the national security powers of the president.

How might Roscoe Pound have approached the question? Pound is venerated in Nebraska, a member of the state's Hall of Fame. A century ago, Pound changed American law forever with his writings on "sociological jurisprudence." He argued that the law cannot be blind to social reality. Perhaps the most famous decision employing sociological jurisprudence is Brown v. Board of Education, in which the U.S. Supreme Court knocked down school segregation by concluding that although the law on its face provided separate but equal education, it was a sociological fact that segregated schools were not equal.

Is there a social reality that likewise must be addressed in the matter of the travel ban? Yes, according to research that suggests the ban is counterproductive to national security. The argument is that the alienation created by the ban is more of a national security concern than any danger posed by vetted travelers from the selected countries. It is not the same argument that the ban is unconstitutional because it is based on a religious test. While the religious question has been raised in attempts to overturn the travel ban, the social reality question has not.

Hence the reflection on what Roscoe Pound would do. I think he would argue for consideration of the social realities involved in the travel ban, even though on the face of it the executive order creating it purports to enhance national security.

Those of the "originalist" persuasion (what we used to call strict constructionism) likely would argue against recognition of social realities in the travel ban cases. But one of the problems with the originalist position is that it has welcomed into its philosophy of jurisprudence the so-called Law and Economics Movement, which advocates for more recognition of economic realities, such as costs of legal and regulatory compliance. It is inconsistent to embrace one reality but not another.

As the travel ban is further considered by the courts, Nebraskans especially should remember the work of the state's greatest legal scholar, Roscoe Pound.

Our Nation of Refugees

Lincoln -- We are a nation of immigrants, but also of refugees if we care to look closely. Some of my ancestors were refugees twice over.

Henry and Catherine Harper Wimer left the Rhineland-Palatinate in 1771 for America. Their own forebears had previously fled the Bas-Rhin region of France because of war and religious persecution. Finding Germany no more hospitable, Henry, Catherine, and their three sons set out from Rotterdam for Philadelphia.

Henry and Catherine did not make it; they died on the voyage. Their household goods were sold in Philadelphia to pay the ship's captain. Their sons were sold into indentured servitude.

Philip Wimer, age 14, was sold to Ulrich Conrad of Dry Run, Virginia, now West Virginia. After seven years of servitude, he joined the Virginia Militia cavalry, led by Captain Peter Hull* of Augusta County. His militia participated in the Siege of Yorktown, which resulted in the capitulation of Cornwallis in 1781 and American independence.

What a great contribution my fifth great-grandfather, a refugee, made to America. Thank you, Philip Wimer. His descendants remained in West Virginia until they relocated in the 1870s and 1880s, becoming pioneers in Cass, Saunders, and Lancaster counties in Nebraska.

These days, Syrian refugees are dying at sea. A few make it to America, where they are sponsored by charities, to which I contribute in quiet memory of Henry and Catherine Wimer, who never made it to America's shores.

What is the moral of this vignette? Is it that the British should never have allowed Philip Wimer (revolutionary that he turned out to be) to come to America? No. The moral is that when people are oppressed, they seek freedom. We Americans, of all people, should know that and live by it.

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*Captain Hull was the son of Peter Thomas Hull, himself an immigrant from the Palatinate and whose daughter Catherine, Captain Hull's sister, also makes up the lineage of the Wimer-Zickafoose family (including my grandmother Ressie Mae Zickafoose) who came a century later to settle Nebraska.

Remembering Another U.S. Attack on Australia

Washington -- The incident a few days ago, in which an American president without provocation disrespected an Austrialian prime minister in their first conversation, recalls another event forty-nine years ago when U.S. airplanes actually attacked an Australian ship, HMAS Hobart, in the South China Sea.

I served in the U.S. Navy on ships operating in the South China Sea and remember HMAS Hobart well. My first ship, USS Rainier, replenished Hobart at sea in 1967. Hobart assisted in fighting the disastrous fire aboard USS Forrestal that same year, providing fire-fighting equipment and transferring her surgeon to Forrestal to try to save the injured. We on Rainier had been scheduled to replenish Forrestal but instead passed her quietly the night after the fire, as she steamed toward port at Subic Bay.

In June of 1968, aboard USS Arlington, I remember being in the same area as HMAS Hobart and USS Edson, near Tiger Island off the Vietnam DMZ. We were providing communications to so-called Market Time operations along the coast when the nearby ships came under attack around midnight. Arlington was not hit; Hobart was struck by missiles in repeated attacks. When daylight came, missile fragments showed that the source of the attack was friendly fire from the U.S. 7th Air Force. The toll: two dead and many injured aboard HMAS Hobart.

Coincidence: LCDR John McCain narrowly escaped death on Forrestal in 1967; Senator John McCain called the Australian ambassador in 2017 to try to repair the damage caused by insulting language to Australia from an American president.

Australia has been a faithful ally, a fast friend of America through good times and bad, and deserves only expressions of regret from Americans for both entirely avoidable incidents.