Wednesday, May 27, 2009

Prohibition and the Functional Approach

Here's a post for those of you who just can't get enough of the in-jokes of the American legal realists about the "functional approach."

As is well known, Thurman Arnold, William Douglas, Wesley Sturges and the other legal realists at the Yale Law School never let a little thing like illegality get in the way of raucous, alcohol-fueled partying during the last years of Prohibition. Jerome Frank, who in this period was a corporate reorganizer in New York City, used to say that his principal responsibility as a "lecturer" at YLS was to import liquor to New Haven. One of the few Harvardarians welcomed at their brawls was Thomas Reed Powell, the brilliant and acerbic professor of constitutional law who had been Douglas's teacher at the Columbia Law School before moving to Cambridge in 1925. (I still laugh out loud every time I read his review of James Montgomery Beck's Constitution of the United States (1924).)

In 1930, Douglas learned that William Clark, a federal judge in New Jersey was about to publish an opinion that drew upon some of Powell's learning in quashing an indictment under the Volstead Act on the ground that the Eighteenth Amendment had been improperly ratified and wondered what Powell thought of the argument. (See H.H. Creekmore, "The Sprague Case," Mississippi Law Journal 3 (1931): 282-91.) Powell replied that it was too late in the day to argue the unconstitutionality of the Eighteenth Amendment. Besides, he continued, "‘it would be much pleasanter to talk about the distinction between law in books and law in action and to approach the problem functionally and realistically, as we did at Al McCormack’s dinner.” (McCormack was a Columbia law graduate, Harlan Fiske Stone clerk, and a lawyer at Cravath, Swaine & Moore, where Douglas had also worked.)

Douglas took up the jest in his response. “I never realized before I received your letter of the 14th what the functional approach was. Now that I have found out I have climbed on the band wagon. Evidently I have been a functionalist for years and did not know it.”


Shag from Brookline said...

You made my day with this post and the link to Thomas Reed Powell's review. I had the pleasure of taking ConLaw with Prof. Powell in the fall of 1952. At other blogs I have posted comments on my exposure to Prof. Powell. Back in those days (Ike/Nixon v. Adlai, plus Joe McCarthy), ConLaw was basically the Commerce Clause.

As for Prohibition, Prof. Powell regaled the class with the story of the professor who kept nagging his mailman about a shipment of books he was expecting that seemed late in arriving. Several days later the mailman was at the door of the professor's home with a large crate stamped with the word "BOOKS" for the professor, informing the professor that his "box of books was leaking."

In explaining the Mann Act, Prof. Powell stated that a violation depended upon "whether it was purely for pleasure or pure pleasure."

As I read Prof. Powell's review linked to, I thought I read between the lines the foundation for the subsequently developed (and continuing) search for the Holy Grail of Constitutional Interpretation and the battle of originalism versus living constitutionalism with Beck's comparison of the Rock of Gibraltar and sandy beaches in considering the Constitution. That in turn reminded me of Prof. Powell's 1955 James S. Carpentier Lectures at Columbia titled: "Vagaries ad Varieties in Constitutional Interpretation" published in 1956 by Columbia University Press. The Foreword by Paul Freund and the Preface by William Warren provide insights to the wit and wisdom of Prof. Powell.

Is Prof. Teachout still working on a bio of Prof. Powell?

Shag from Brookline said...

Those amused with Prof. Powell's review linked to might also enjoy Melvin I Urofsky's "Dear Teacher: The Correspondence of William O. Douglas and Thomas Reed Powell." I'm not good with links. Perhaps Dan can supply it.

I wonder if in more recent years similar correspondences have taken place. Prof. Powell knew many of the Justices on a personal basis. This did not keep him from being critical of their opinions. Perhaps times have changed such that such personal relationships are avoided both by Justices and ConLaw scholars.

I remember asking Prof. Powell after class one day what subject he taught at Harvard Law when Felix Frankfurter taught ConLaw. Prof. Powell retorted, "Why you young whipersnapper, I taught Constitutional Law and Felix taught a new-fangled course called Administrative Law." Acerbic, yes; but I loved it.

Dan Ernst said...

Thanks, Shag. The cite is Melvin I. Urofsky, “‘Dear Teacher’: The Correspondence of William O. Douglas and Thomas Reed Powell,” Law and History Review 7 (1989): 331-86. I'm afraid I can't find an ungated version, although it's available via Hein-on-Line, JSTOR, et al.

Dan Ernst said...

In going through a file tonight, I came upon a note on a letter from Powell to Thurman Arnold, March 28, 1934, from Arnold's papers in Laramie. Powell, who had taught administrative law at Columbia, took over Frankfurter's class at Harvard when he left for his year in England. He claimed to have been bored by the experience, especially because he used the Frankfurter and Davidson casebook, which was heavily weighted to cases showing the flexibility of the doctrine of separation of powers. Powell wrote, "Felix's kind of Administrative Law is not the kind of Administrative Law to which I was brought up, and I wish I had taken [Ernst] Freund's casebook instead of his. I hope after this year that I shall never have to hear the words 'separation of powers' again."