Lincoln — We celebrate, with good reason, Nebraska's history and tradition in shaping our nation's laws. The Standing Bear v. Crook and Meyer v. Nebraska cases are landmarks of civil rights. Lincolnite Roscoe Pound, as a young University of Nebraska law professor at the beginning of the 20th Century, shook the legal world with his theories of jurisprudence. His ecological and sociological approach to Constitutional interpretation found its way into countless federal court decisions. When he retired as the dean of the Harvard Law School, he was among the world's most respected jurists. Both Standing Bear and Roscoe Pound are in the Nebraska Hall of Fame.
The Dobbs decision consigns all this to the dustbin of history. It repeatedly slaps the face of those of us in Nebraska who still treasure our legacy. In arguing that a civil right is not a right at all if it was not enumerated or understood to be a right at the time of the adoption of the Fourteenth Amendment in 1868, the Dobbs court suggests Standing Bear is not a man and Meyer has no right to teach a foreign language.
The dissenting justices in Dobbs are disappointing in that they argue too much legal history and too little that the law has a greater purpose, in a Poundian sense, which is the role of law in creating a civil society. The dissenters make a mistake in tacitly playing by the rules the Dobbs historicists are trying to impose over Constitutional interpretation. Rather than picking at historical inconsistencies in the majority opinion, the dissenters should have frontally attacked the whole premise of so-called originalism. Question: should the Nebraska legislature, if called into session by the governor to respond to Dobbs, exempt the indigenous population from all civil rights matters, including issues of abortion, because of how the government viewed Standing Bear in 1868? Under the Dobbs court's logic, yes. Standing Bear had no rights in 1868.
Should we also recall the new Standing Bear statue in Statuary Hall in the U.S. Capitol, and rethink how we are naming state buildings and public schools? No. Better to dial back the originalist majority on the court than to live with its bizarre legal decisions.
If Governor Ricketts calls the Nebraska legislature into session in reaction to Dobbs, the best thing it could do would be to make an appropriation to purchase copies of two books to be placed on the desks of each Supreme Court justice, dissenters included. One is philosopher Karl Popper's The Poverty of Historicism. Popper would not look kindly on the idea that the conditions of 1868 could even be determined, let alone serve as guidance in a changing world.
The discovery of instances which confirm a theory means very little if we have not tried, and failed, to discover refutations. For if we are uncritical we shall always find what we want: we shall look for, and find, confirmation, and we shall look away from, and not see, whatever might be dangerous to our pet theories. In this way it is only too easy to obtain what appears to be overwhelming evidence in favour of a theory which, if approached critically, would have been refuted.
[T]he historicist ... firmly believes in his favorite trend, and conditions under which it would disappear to him are unthinkable. The poverty of historicism, we might say, is a poverty of imagination. ― Karl Popper, The Poverty of Historicism
The other book is Roscoe Pound's Introduction to the Philosophy of Law, summarized here. Pound developed his theory of ecological jurisprudence based on his scientific study of botany and ecology on Nebraska prairies, which gave him insights into life's dynamic and interactive relationships. He would have given little weight to 1868 thinking, but every consideration to the sociological effects of the Dobbs decision in 2022.
In studying his predecessors Pound saw that all the nineteenth century schools were subject to the common criticism of attempting to construct a science of law solely in terms of law and on the basis of law, divorced from all other phenomena of social control and civilization. For him a legal science, in order to meet the needs of a changing society, must give up its exclusiveness and work in closer association with the other social sciences.... The social purposes of law must be stressed more than the sanctions, for law is to be regarded as a social institution which can be improved by intelligent effort. To discover the best means of directing and furthering efforts to improve the law, the jurist must be concerned with a wide range of studies, and not just of law. This requires a study of the actual effects of legal institutions and doctrines; a study of the means of making legal rules effective; a sociological legal history, which is a study not only of how doctrines have evolved and developed, considered solely as jural materials, but of what social effects the doctrines of law have produced in the past and how they produce them. ... The functional attitude, which is the study not only of what legal materials are and how they came to be, but also of what they aim to effect and how they work, is fundamental in Pound's legal theory. Also, there must necessarily be intensive study of philosophy and psychology; in order for a legal science to be valuable it must be consistent with the best of modem philosophy and psychology. — Linus J. McManaman, O.S.B., The Legal Philosophy of Roscoe Pound [emphasis added]
There is one, and probably only one, point in the majority opinion with which I agree. It is the observation that the dissenting justices did not cite any scholarly treatise to justify their position on what was in the minds of citizens in 1868. They should have offered several, including some that challenged the very idea that the such a determination could ever be made, let alone that it could be dispositive.
