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Law and Human Behavior, Vol. 15, No. 2, 1991

Social and Social Scientific Perspectives in Judicial Interpretations of the Constitution

A Historical View and an Overview*

Alan J. Tomkins and Kevin Ourslandt

It has been traditional to demarcate Muller v. Oregon as the first Supreme Court case to benefit from a social science perspective and Brown v. Board o f Education o f Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court 's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions, Dred Scott v. Sandford and Plessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.

For social scientists, 1954 represented a high-water mark in the application of social science information to judicial proceedings. In Brown v. Board of Educa- tion of Topeka [Brown 1], the Supreme Court of the United States ruled that the segregation of school children "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone" (Brown v. Board of Education o f Topeka, 1954, p. 494). Segregated education, held the Court in a unanimous opinion written by Chief Justice Earl Warren, is "inherently unequal" and, therefore, unconstitutional (p. 495). The "separate but equal" doctrine, which had been found to be constitutionally suf- ficient for transporting railway passengers by the Supreme Court in the infamous 1896 case, Plessy v. Ferguson, was held not to be adequate for children's educa-

* We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article. Requests for reprints and other correspondence should be addressed to the first author at the Law/Psychology Program, 209 Burnett Hall, Lincoln, Nebraska 68588-0308.

t University of Nebraska--Lincoln.

I01

0147-7307/91/0400-0101506.50/0 �9 1991 Plenum Publishing Corporation

102 TOMKINS AND OURSLAND

tion, and the nation's schools were ordered to desegregate "with all deliberate speed" (Brown v. Board of Education of Topeka [Brown 111, 1955, p. 301). Most importantly, Brown opened the door, under the provisions of the Fourteenth Amendment 1 (which on its face would have seemed to guarantee all citizens equal protection, due process--indeed, all the rights and privileges of the Bill of Rights), for later cases to completely eviscerate Plessy: In the wake of Brown and subsequent legislation (i.e., the Civil Rights Act of 1964), government can no longer legally pursue the Jim Crow policy of segregating the black from the white races.

In reaching its unanimous conclusion that segregation adversely affected black children, the Brown Court seemingly relied, in part, on social scientific evidence that purported to show the negative consequences of segregation on the psychological development of children (see citations in Brown L p. 494 n. I 1; see also Appendix to Appellants' Brief, 1954). Although Chief Justice Warren later downgraded the importance of the social science---"It was only a note, after all," observed the Chief Justice (quoted in Kluger, 1976, p. 706)---Brown I is frequently cited by social scientists as the quintessential example of how social science evidence can influence constitutional decisionmaking (e.g., Rosen, 1972; see also Hovenkamp, 1985, p. 664 [claiming that Brown was a " 'social science' decision"]; Loh, 1984, p. 78).

But was the use of social science in Brown really a unique event in the history of social science and law? Was it the watershed for the use of social perspectives in constitutional decisionmaking? The answer seems to be yes and no. Yes, it was the first time that the United States Supreme Court had purposefully relied upon, even in small part, what we might label social science data in its constitutional decisionmaking (see Rosen, 1972). (This engendered a great deal of controversy at the time; see especially Cahn, 1955; see generally Clark, 1969; Horowitz & Willging, 1984, pp. 324-325.)

A historical perspective, however, prompts a no answer. The Court, it appears, had used social science for nearly a half century by the time of the Brown decision. Many point to a 1908 labor case in which the Justices' attention had been directed to a collection of empirical perspectives by attorney (later Supreme Court Justice) Louis Brandeis (Brief for the Defendant in Error, 1908) in his brief in Muller v. Oregon (see generally Collins & Friesen, 1983; Doro, 1958; Friesen & Collins, 1983). Moreover, the Court's decisions in Muller and its progeny (e.g., Bunting v. Oregon, 1917; Adkins v. Children's Hospital of the District of Colum- bia, 1923; see generally Friesen & Collins, 1983; see also Monahan & Walker, 1986, p. 481 n.14) also represented instances of the Court's exposure to social science evidence in making constitutional determinations about the extent to

1 Section 1 of the Fourteenth Amendment provides that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SOCIAL PERSPECTIVES AND THE CONSTITUTION 103

which government could promulgate protective labor laws that restricted busi- ness's free enterprise activities.

In fact, prior to Brown, courts were looking to social science in several different areas. For example, Monahan and Walker (1990, pp. 85-90) show that in trademark cases, although the courts may have admitted social science data only with hesitation and reservation (see, e.g., Oneida v. National Silver, 1940, pp. 286-287, in which the trial court judge appears to value the in-court testimony of 24 ,of the 1,000 respondents surveyed by the plaintiffs as much as he values the results from the entire survey), social facts were nonetheless admitted into evidence and relied upon by courts (see Saks & Baron, 1980, pp. 3-27, for references to other cases; see generally Hafemeister & Melton, 1987; Lob, 1984; Melton, 1987a; Monahan & Walker, 1986, 1987, 1990; Saks & Van Duizend, 1983; Walker & Monahan, 1988; see also Bersoff, 1987; Melton, 1987b; Perry & Melton, 1984; Tremper, 1987). Thus, despite the fact that there has been a historical tension between social science and law (see, e.g., Haney, 1980; Loevinger, 1967; Tapp, 1976; Webster, 1984; see Wigmore, 1909, for one of the earliest attacks on social science by a representative from the legal community), this does not imply that social science has been excluded from the courts.

Social science, then, has long been used both in legal decisionmaking, in general, and in constitutional decisionmaking, in particular. As previously indicated, the Court had shown its receptivity to social perspectives in Muller, which was a constitutional case concerned with whether the State of Oregon was pro- hibited, by the Fourteenth Amendment's protection of the fight to contract, from limiting a woman's work day in factories or laundries to I0 hours (see Collins & Friesen, 1983; Doro, 1958). The Muller Court referred to some of the Brandeis briefs (Brief for the Defendant in Error, 1908) social fact evidence in its opinion (in the only footnote in the case: p. 419 n.1) and also took judicial notice of "general knowledge" about social realities (p. 421). The Clark doll study cited in Footnote 11 of the Brown I decision (see Clark & Clark, 1947/1958; see also Clark, 1950/1963), however, represented the first time that social science data, obtained using what are currently considered acceptable scientific methods (see, e.g., Kid- der, 1981; see also Monahan & Walker, 1990, chap. 2), were explicitly cited in a Supreme Court opinion.

Thus, it would appear that a conservative estimate would be that prior to the present-day extensive and explicit use of social science evidence in taw (see generally Lob, 1984; Monahan & Walker, 1990; Saks & Baron, 1980), social perspectives were sometimes used by courts in constitutional and other legal decisionmaking. It has been common to recognize Muller as the first case in which the Court's attention was directed to social science and to recognize Brown I as the first case in which the Justices actually relied upon social science in making their legal determination.

It is our opinion, however, that this view fails to look closely enough at past Supreme Court decisions. We believe that a close, historical examination of legal decisionmaking will reveal that social scientific perspectives have consistently been a part of legal decisionmaking in cases that address social issues (see also Tomkins, 1987a). Clearly, there has been an intimate connection between the


Constitution and American culture and politics (e.g., Kammen, 1986). A thorough review is beyond the scope of this article. Nonetheless, we find that not only are social perspectives integral to making judicial decisions involving social life, but also that this "fact" was not concealed from legal decisionmakers prior to the 20th century. It was not the fashion to cite social facts or perspectives as authority in judicial opinions (Lofgren, 1987); nevertheless, traces of social perspectives are present in many social issue opinions.

In the remainder of this article, we will briefly examine the use of social "science" in judicial decisionmaking in the context of one of the most controver- sial and vexing social issues that has confronted our nation since the first Euro- peans settled in North America: race relations (see, e.g., Bell, 1973; Jordan, 1974; Kovel, 1970; Osofsky, 1967). Using race issues as our focus, we will argue that social science--or what passed as social science at the time--played an integral part in law, especially in the complex considerations of how to apply the guarantees of constitutional fights provided by the amendments to the original Consti- tution. Our analysis is intended to show that the foci of the other articles in this Special Issue further the long tradition of infusing social science into analyses and considerations of the guarantees provided Americans by the Constitution's Bill of Rights and the civil rights protections of the Fourteenth Amendment. Those foci include an appraisal of the psychological expectation of privacy from law enforcement searches under conditions of third-party consent and its implications for the Fourth Amendment (Kagehiro, Harland, & Taylor); a review of the empirical data relevant to the predictions of dangerousness in preventive detention and death penalty contexts and the (un)likelihood that such data will influence decisionmaking under the Fifth, Eighth, or Fourteenth Amendments (Ewing); an examination of jury power and performance using the issue of jury nullification, with implications for the Sixth and Seventh Amendments' provisions for trial by jury (Horo- witz & Willging); an analysis of the symbolism of law and how symbolic legality has contravened social realities and contaminated analyses of the Fourteenth Amendment's equal protection and due process provisions (Haney); and, finally, an assessment of the role and impact of social science evidence in constitutional litigation (Grisso & Saks).

JURISPRUDENTIAL VIEWS ON THE USE OF SOCIAL REALITIES IN THE LAW

In 1881, the eminent legal scholar (and later U.S. Supreme Court Justice) Oliver Wendell Holmes published a book, The Common Law, that would become one of the most influential legal treatises of its day. On the first page, Holmes argued that

the life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.


Holmes wrote these words to counter the notion that legal decisionmaking was merely a formal application of legal rules to facts. He was one of a handful of jurists who rejected the formalist philosophy that prevailed in his day (see generally White, 1976, pp. 109-115, 122-128, 150-177; see also Friedman, 1973, pp. 332-334). Holmes's perspectives were later developed into two schools of jurisprudence, sociological jurisprudence and legal realism, that explicitly looked to social realities in order to understand the process of judicial decisionmaking and the effects of the law (see, e.g., White, 1972).

Prior to the development of sociological jurisprudence and then legal realism, the jurisprudential perspective that was accepted by the majority of legal scholars and practitioners held that the law was "natural" in origin and "rational" in derivation. This formalist approach called for a deductive application of legal rules to the particular facts at issue. Judges were viewed as "the depositories of the laws--the living oracles" of the common law (Friedman, 1973, p. 17, quoting Blackstone). Judges did not make or create law; they merely used syllogistic reasoning to arrive at appropriate--and inevitable---conclusions (see, e.g., White, 1976, pp. 146-149). This view was aptly summarized by Chief Justice John Mar- shall in 1824 in the case of Osborn v. United States Bank (p. 866): "Courts are the mere instruments of the law, and can will nothing. [Judges should act only] for the purpose of giving effect to the will of the legislature; or, in other words, the will of the law" (cited in Loh, 1984, p. 642; see generally Loh, 1984, Chap. 12; Purcell, 1969/1978, 1973; White, 1972).

This formal/deductive jurisprudential perspective was challenged by a new school of thought, which came to be known as sociological jurisprudence (see, e.g., Cardozo, 1921, 1924; Cohen, 1914; Pound, 1908, 1911a, 1911b, 1912, 1923a, 1923b, 1923c; Radin, 1925; see generally Purcell, 1969/1978, 1973; White, 1972). Among the earliest proponents of this new jurisprudence was Roscoe Pound (see Melton, 1990).

In a seminal 1907 article, Pound identified the growing tendency of individuals to discard the legal standards set by the courts for their own standards of right as an indication that the common law had failed to keep pace with a changing society. Surveying these changes, Pound (1907, p. 609) considered the time "ripe for a new tendency," an analytic tendency informed by the latest scientific ad- vances that would serve to displace the outmoded tendency to look to syllogistic reasoning to determine judicial decisions. He called this new tendency "sociological jurisprudence." A pragmatical, teleologic jurisprudence, it stressed scientific investigation and social applicability. "We must investigate the theories of justice, of law, and of rights," Pound urged (p. 610). Pound further argued that

[w]e must seek the basis of doctrines, not in Blackstone's wisdom of our ancestors, not in the apocryphal reasons of the beginnings of legal science, not in their history, useful as that is in enabling us to appraise doctrines at their true value, but in a scientific apprehension of the reactions of law to society and of the needs and interests and opinions of society of today . . . . Legal monks who pass their lives in an atmosphere of pure law, from which every worldly and human element is excluded, cannot shape practical principles to be applied to a restless world of flesh and blood. (pp. 610-612)


Pound deemed it essential that the courts abandon natural law philosophy in favor of a jurisprudence responsive to modern society. Pound concluded this historic article with this prophetic observation: "In all cases of divergence between th.e standard of the common law and the standard of the public, it goes without saying that the latter will prevail in the end. Sooner or later what public opinion demands will be recognized and enforced by the courts" (p. 615).

Gradually the new jurisprudence recruited many prominent advocates. In 1921 Benjamin Cardozo, who would later be appointed to the United States Su- preme Court, published a series of lectures delivered at Yale's Law School out- lining his views on sociological jurisprudence. In The Nature of the Judicial Process, Cardozo rejected the "demon of formalism" as a judicial tool. Instead, according to Cardozo, the judge is to take his direction from the "customary morality, the prevailing standards of right conduct, the mores of the time" (p. 63).

Cardozo identified four forces to guide judicial decisionmaking: philosophy (i.e., the "line of logical progression"); history; custom; and sociology. When the law is clear, when precedent extends to the case under consideration, or when history or custom provide clear guidelines for making decisions, the judge's work is solely to apply the law: "I think adherence to precedent should be the rule and not the exception," Cardozo (1921, p. 149) wrote. However, since society is in a constant state of flux and evolution, philosophy, history, or custom will not always provide the direction necessary for rendering an appropriate decision. In such instances, it is necessary to "bend symmetry, ignore history, and sacrifice custom in pursuit of other and larger ends" (p. 65).

Sociological jurisprudence, then, took into account social realities, particularly when old rules failed or when new issues confronted the courts. The next logical progression was legal realism, a jurisprudential perspective that claimed that social realities were, in fact, the lifeblood of law (see, e.g., Cook, 1927; Frank, 1963; Llewellyn, 1930, 1931; Moore, 1923; Robinson, 1935; see generally Gilmore, 1961; Haney, 1980; Kalman, 1986; Patterson, 1953; Purcell, 1969/1978, 1973; Rumble, 1968; Schlegel 1979, 1980; White, 1972). Whereas sociological jurisprudence placed stare decisis at the center of judicial decisionmaking unless there were good reasons not to follow the old ways, legal realism suggested that the old ways were always open to new scrutiny. The social reality of law was at the core of legal activity; law was, in and of itself, a social activity. This "reality" needed to be explicitly acknowledged, and it was the responsibility of courts to act in a way consistent with this reality. By this reasoning, social science, of course, was part and parcel of the law, and thus the social scientific and the legal com- munities could work arm-in-arm, conducting the social scientific activity of law (see, e.g., Haney, 1980; Kalman, 1986; Purcell, 1973; Robinson, 1935; Schlegel, 1979, 1980).

Thus, by the time of World War II, there were many in the legal community who argued that social realities were in fact the backbone of legal decisionmaking. Law was not merely a mechanistic application of principles to facts; it was an instrument of social change that could be evaluated in light of its social impact (Purcell, 1969/1978, 1973; White, 1972). Although the influence of legal realism as a school of jurisprudence ended in the wake of the politics attendant to World War

SOCIAL PERSPECTIVES AND THE CONSTITUTION t07

II (Purcell, 1969/1978, 1973), it is commonly suggested that nowadays we are all, in some way, legal realists (e.g., Schlegel, 1979, p. 459). At a minimum, there seems to be acceptance of social science evidence in legal decisionmaking in many cases (see generally Loh, 1984; Monahan & Walker, 1990; but see Mikva, 1990, suggesting that social science is often more appropriate, and will have greater, longer-lasting impact, in legislative decisionmaking contexts than in judicial decisionmaking contexts).

SOCIAL SCIENCE AND JUDICIAL DECISION MAKING ABOUT RACE ISSUES

Brown v. Board of Education: A New Role for Social Reality in Judicial Decision Making?

The preceding section presents a brief synopsis of the standard history of how social realities have come into usage in judicial decisionmaking (see, e.g., Haney, 1980; Loh, 1984; Monahan & Walker, 1990). Our thesis, however, is that social realities vied for a role in legal decisionmaking long before the sociological jurisprudence theorists called for the explicit infusion of social perspectives in certain situations or the legal realists called for them in virtually every instance. As Holmes (1881) noted, law is the product of experience (i.e., social realities): It had been so prior to Holmes's treatise, and it would continue to be. What would change, however, would be the extent to which courts would explicitly admit that social realities were integral to judicial opinions (see, e.g., Lofgren, 1987, who notes that the lack of reference to social fact was a function of the dominant "style" of judicial opinions in the 19th century; see also Hovenkamp, 1985, who analyzes the background role that social science played in civil rights cases prior to Brown). Ultimately, "admission" of the useful role of social realities in legal decisionmaking would occur via citations to social science "facts" in judicial opinions. What Hovenkamp (1985) points out in the context of race cases before the Supreme Court during the Progressive Era could, we believe, be aptly applied to virtually any social issue before the Court long before Muller: "[T]he data were there, and were brought to the Court's attention. The Court considered them and accounted for them, even if it could not obviously derive its rationales from them" (p. 665).

What gives Muller v. Oregon such historical significance, then, is that it represents the first time that a Supreme Court brief made explicit use of social sci~ence evidence and this evidence was subsequently relied upon (at least in part) by the Court as evidenced by its citation of social science "fact" in its opinion. However, it is also likely that even had Louis Brandeis not become involved in the Muller case when it went before the Supreme Court (see Collins & Friesen, 1983), the Court would soon have been confronted with its first "social science" brief anyway in the case of Berea College v. Kentucky (1908; see generally Hoven- kamp, 1985). Kentucky Attorney General James Breathitt, arguing to support the State's law requiring school segregation, called the Court's attention to the social science of the day supporting the inherent differences between the black race and


the white race (Hovenkamp, 1985). It seems as if social science was "in the air" during this period. In any event, Muller, not Berea College, was the first case to use social science, Louis Brandeis went on to become a Justice of the United States Supreme Court, and history was made.

Thus, by the first decade of the 20th century, social science was not only used in law, it was used by the highest court in the land. We suggest that another change would occur, post-Muller, in the type of social realities that the courts would find useful. Around this same time, as sociological jurisprudence was beginning to emerge, the social sciences were just beginning to become accepted as legitimate ways of "knowing" and becoming part of the American academy. The social "sciences" of the 19th century were grounded in epistemologies that today we would term philosophy, political theories, and even theology (see, e.g., Hoven- kamp, 1985, pp. 636-637). The sciences of human behavior----especially psychology and sociology----did not become fields unto themselves until the middle to latter parts of the 19th century. Our thesis is that what changed between the 19th and 20th centuries was the paradigm (see Kuhn, 1970) of what constitutes social scientific knowledge (i.e., information obtained pursuant to empirical methodol- ogies such as systematic observation and true experimentation), not the law's need to rely on social information in making decisions. As Diggins (1984) notes, "Science as an objective discipline dedicated to promoting the public g o o d . . . offer[ed] the very knowledge and values that had once been found only in religion or political philosophy" (p. 156).

It is our contention that what emerged in Brown I was not so much a reflec- tion of the law's new willingness to look to social perspectives to assist in decisionmaking as it was a social scientific victory of what constitutes acceptable social science knowledge. In other words, although the social science evidence from Brown I is especially weak and unconvincing from the perspective of pres- ently acceptable social science (the social science in Brown I was even question- able at the time: see, e.g., Cahn, 1955; van den Haag, 1960), the social realities before the Court were substantially more sophisticated than social perspectives that the Supreme Court Justices had relied upon in the past. Understood in this light, Cahn's (1955, pp. 157-158) oft-cited criticism of the Court's use of social science in Brown L "I would not have the constitutional rights of Negroes----or of other Americans--rest on any such flimsy foundation as some of the scientific demonstrations" present in the Brown litigation, missed an important point. The "flimsy foundation" that Cahn referred to (i.e., the studies and observations cited by the Court in Footnote 11: Brameld, 1949; Chein, 1949; Clark, 1950; Deutscher & Chein, 1948; Frazier, 1949; Myrdal, 1944; Witmer & Kotinsky, 1952, Chap. 6) was a lot firmer than the social bases of past decisions, and especially the past decision, Plessy v. Ferguson (1896), which could have been controlling in the Brown decision (or, at the least, ignored as the Court did in Sweatt v. Painter, 1950, p. 636, in which the Court declined to review the social realities of Plessy but nonetheless required the University of Texas Law School to admit a black student). Ironically, because the decision in Plessy did in fact rely upon social (science) perspectives that constituted "acceptable knowledge" according to the


standards and norms of the times (see, e.g., Hovenkamp, 1985, p. 633 n.54), by the time of Brown the Court seemed compelled to reexamine "modern" social perspectives relevant to segregated education.

Consequently, it seems to us that the historical import of Brown I is not the role that social science played but the type of social science that played a role. This thesis--that there has long been the use of social realities in social issue decisionmaking, in general, and in race issues, in particular is not one that we have originated. For example, Professor Hovenkamp (1985) persuasively argues that social science---or what passed as social science at the time,--buttressed the segregationist legislation and subsequent legal decisionmaking in the years prior to Brown, and he also argues that social science in the form of economics influenced law during the same period (Hovenkamp, 1990).

Social Realities, Race Relations, and the Law

In perhaps no other area of study would the social sciences exert their influence on turn-of-the-century thought more than in the area of race. That differences in intellectual, physical, and moral development existed between various races was generally accepted in the 19th century (see, e.g., Fredrickson, 1971; Gossett, 1963; Hailer, 1971; Nolan, 1967). This was true within scientific com- munities as well as society as a whole (see, e.g., Gould, 1981; Hovenkamp, 1985).

The Civil War may have resulted in the de jure emancipation of the black race, but it did not emancipate white Americans from their racial beliefs. Nor were there major changes in mainstream, scientific thinking during the mid- to-latter part of the 19th century. Scientists during this period conducted studies that "confirmed" that there were genetic differences between the various races (see, e.g., Boiler, 1969; Fredrickson, 1988; Gould, 1981; Hailer, 1971; Hoven- kamp, 1985; VanderZanden, 1959). These findings were known to, and accepted by, much of white society, from the common "person on the streets" to the "trained scientist." Of course, included among those who recognized the inherent differences among races were legislators, attorneys, and judges (see, e.g., Hoven- kamp, 1985; Riegel, 1984).

Of the many scientific developments of the 19th century, Darwin's theory of evolution exerted the greatest influence upon scientific beliefs that the races were inherently different. Through the writings of England's Herbert Spencer (and in the U.S., through the writings of William Graham Sumner), Darwin's ideas of natural selection were applied to social life (Loh, 1984, pp. 56-57,660-662). Social Darwinism, as this new theory came to be called, established "a new rationale within which nearly all of the old convictions about race superiority and inferiority could find a place" (Gossett, 1963, p. 145; see also Boiler, 1969; Hailer, 1971; Hofstadter, 1966). Social Darwinism, with its catch phrase "survival of the fittest" and its laissez faire approach to social and economic processes, gave scientific credence to social beliefs about racial differences, and, at the same time, justified sociolegal policies of indifference, or worse, towards the plight of black Americans (Hovenkamp, 1985).


Perhaps the two most important decisions issued by the Supreme Court re- garding race relations in the 19th century were the Dred Scott case (Dred Scott v. Sandford, 1857) and the aforementioned case of Plessy v. Ferguson (1896). The opinions in both of these cases reflected, in part, 19th-century, social scientific perspectives about black Americans, and both cases served to severely under- mine the legal status of black Americans.

Dred Scott can be pointed to as the Court's contribution to civil war in America. Although the American Civil War was the result of a myriad of complex political and economic factors, race relations--and especially the issue of slavery---contributed greatly to the battle between the northern and southern states (e.g., McPherson, 1988). The Dred Scott case, which began in April, 1846, with petitions filed by Dred Scott and his wife, Harriet Scott, in the Circuit Court of St. Louis County against their owner, Irene Emerson, was a lawsuit designed to gain the Scotts their freedom (Ehrlich, 1979; see generally Fehrenbacher, 1978). The case eventually shifted from the state to the federal courts, and in December, 1854, the case was docketed in the U.S. Supreme Court (Ehrlich, 1979, p. 89).

Throughout approximately the first decade of the Dred Scott litigation, the case caused hardly a ripple in the public or legal arenas. However, by the time the Supreme Court considered the case, it had evolved into a more complex debate: It included the questions of whether a black person was a citizen of the United States with a right to sue in federal court and the constitutionality of the Missouri Compromise concerning which American states and territories would allow slavery and which would prohibit it. Thus, Dred Scott turned into a battleground over the slavery issue, the sociopolitical status of blacks, and the governmental role in resolving these issues (see generally Fehrenbacher, 1978).

Chief Justice Taney, a Southerner, delivered the opinion of the Court in Dred Scott. There were six concurring opinions and two dissents. The Court's opinion was a 241-page document! Even during its time, the social (and, of course, political) importance of Dred Scott was recognized (Fehrenbacher, 1978).

In his opinion, Chief Justice Taney noted that "for more than a century [the black race has] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations" (Dred Scott v. Sandford, 1857, p. 407). This view was the dominant "social scientific" view of the time (see generally Boiler, 1969; Gould, 1981; Hailer, 1971; Hofstadter, 1966; Hovenkamp, 1985), or, as Taney put it, a belief "regarded as an axiom in morals as well as politics" (Dred Scott v. Sandford, 1857, p. 407). In fact, the social belief was that blacks were "so far inferior [to whites], that they had no rights which the white man was to respect; and the negro might justly and lawfully be reduced to slavery for his benefit" (p. 407).

The Dred Scott opinion gave notice to the world that American law supported popular and scientific beliefs, viz., that the black race was clearly inferior to the white race (e.g., Bell, 1973, p. 2). Under American law, black persons were nothing more than the personal chattel of whites (see Stampp, 1956, pp. 197-236). The degree to which whites associated with blacks, and the form of such associ- ations, would be determined by whites with the backing and force of law. After all, black people, wrote Chief Justice Taney,

SOCIAL PERSPECTIVES AND THE CONSTITUTION I 11

are not included, and were not intended to be included, under the word "ci t izens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, [during the time when the Constitution was being framed black people were] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. (Dred Scott, 1857, pp. 404-405; see also Dred Scott, pp. 403-427; see generally Fehrenbacher, 1978, pp. 324-330).

Even critics of the Dred Scott decision did not necessarily disagree with this social view of blacks. For example, Abraham Lincoln, whose political career rested and whose ultimate esteemed place in history hinges in large part on his opposition to the Court's reasoning and decision in Dred Scott, indicated that although he believed the Constitution "intended to include all men," he did not believe that the framers "intend[ed] to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral development or social capacity." In other words, although Lincoln believed that the black race was entitled to equality under law, he did not necessarily believe blacks to be the equals of whites. His view was that the men who created the Constitution

defined with tolerable directness, in what respects they did consider all men created equal---equal in "certain inalienable rights, among which are life, liberty and the pursuit of happiness." This they said, and this they meant. They did not mean to assert the obvious untruth, that all men were actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to corder such a boon. They meant simply to declare the right, so that enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. (Basler, 1953, pp. 405-406, quoted in Diggins, 1984, pp. 316-317, all emphases in original)

Thus, like many of his contemporaries, Lincoln was willing to allow the black race their political rights so that, despite their inferiority, whites would not be put in the position of treating blacks as "brutes" nor would there be a basis for discrim- inating against other groups "such as 'foreigners and Catholics' " (Diggins, 1984, p. 316).

The matter of association or "mixing" (or lack thereof) between whites and blacks, a matter only tangentially at issue in Dred Scott because the main issue involved the greater question of slavery, became the explicit focus of the post- abolition-of-slavery case Plessy v. Ferguson (1896). In Plessy, the Supreme Court, by a 7-to-1 majority, upheld the constitutionality of an 1890 Louisiana law mandating "equal but separate accommodations for the white and colored races" on all passenger railways within the state (p. 540). The law at issue in Plessy involved transportation; the social underpinning was whether a state had a right to prohibit interracial mixing, if even for the relatively brief period required to trans- port a person by railway.


The regulatory measure, pronounced the Court, was consistent with the "established usages, customs and traditions of the people" and, therefore, was a reasonable exercise of the state's police power to promote "public peace and good order" (Plessy v. Ferguson, 1896, p. 550). Justice Henry Brown, writing for the majority, argued that although the Fourteenth Amendment was designed to promote legal equality for the black race, "it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either" (p. 544).

As Hovenkamp (1985) argues, the Court's decision in Plessy reflected the common view of the time that racial mixing was believed to be harmful. Laws that infringed upon social contacts between races, such as prohibitions against interracial marriages, were not unconstitutional even if such laws might, "in a tech- nical sense" (Plessy v. Ferguson, 1896, p. 545), interfere with constitutional provisions.

It was not that the Court was unconcerned with civil rights, however. Rather, to place a positive light on the opinion (if one can be placed on it), the Court was attempting to protect black Americans' access to facilities. Prior to the civil rights legislation passed during the Reconstruction period, it had been common to ex- clude persons of the black race from access to such facilities (see, e.g., Hoven- kamp, 1985). Thus, the political/legal issue in Plessy was not simply one of integration versus segregation, but rather one of equal access. Understood in this light, the Court's decision and the state's legislation from which it sprung, was less racist (from a modern perspective) than were much of the social practices of the era. At least under the legislation blacks were not being excluded from transportation.

The important point we wish to make here is not to present an apology for the decision in Plessy but rather to show that the social beliefs about racial mixing were at least as much at the root of the decision as were "pure" or formal legal analyses. The fundamental, basic belief about the inherent social differences between the black and white races was no more in evidence than when Justice Brown wrote: " I f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane" (Plessy v. Ferguson, 1896, p. 552; see also Kluger, 1976, pp. 80--81). Miller (1966) denounces Justice Brown for "smuggl[ing] Social Darwinism into the Constitution" (p. 170), but the belief about black inferiority was basic to most white Americans (including scientists) and the prospect of miscegenation was particularly horrifying to many whites who feared that sexual intermingling with the black race would toll the death knell for the white race. "[I]f we have intermarriage," fretted one Southerner, "we shall degenerate; we shall become a race of mulattoes . . . . we shall be ruled out from the family of white nations" (quoted in Rabinowitz, 1980, p. 187).

Thus, the Plessy decision, like the Dred Scott decision before it, reflected the dominant values of 19th-century America. Lofgren (1987) observes that the fact that the Plessy decision went largely unnoticed at the time reveals the extent to which the values it implicitly and explicitly endorsed were uncontroversial to most white Americans. Riegel (1984) makes the same point: "[G]iven the almost


unanimous judicial precedents on equal rights to accommodations, the Supreme Court's decision was very predictable and obvious, which is probably why it attracted as little attention at the time as it did" (p. 38). Unlike the issue of slavery during Dred Scott's day, which did attract vociferous opponents, most whites at the time of Plessy felt that separation o f the races was a reasonable and desirable aim of the law.

There also is evidence to suggest that another social perspective was involved in Plessy, too. Kluger (1976, p. 73) implies that the railroads wanted the statute overturned for economic reasons: It was too expensive for the railroads to have to use a separate railroad car for their black patrons. In other words, economic social realities were being pitted against other social realities, that is, the social scientific "knowledge" about the evils of racial mixing (see Hovenkamp, 1985). The noneconomic social realities prevailed in this case; in other cases during the same era, however, it has been argued that socioeconomic perspectives influenced legal decisionmaking (Hovenkamp, 1990).

The lone dissenter to the Plessy opinion, Justice John Marshall Harlan, cas- tigated the ruling. It would, suggested Harlan, "prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case" (Plessy v. Ferguson, 1896, p. 559). At first blush, it would appear that Justice Harlan believed, consistent with Professor Cahn's (1955) argument 60 years later, that civil rights should not depend upon perceived or actual social realities. As Justice Harlan (Plessy v. Ferguson, 1896) wrote:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time . . . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling-class of citizens . . . . Our constitution is color-blind, and neither knows or tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law . . . . The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. (p. 559)

In this argument, it seems that although Justice Harlan disagreed with the Court's decision in Plessy, he did not necessarily disagree with the majority's social view concerning differences among races. (Indeed, Harlan sounds a lot like Lincoln did about the social analysis implicit in Dred Scott.) In addition to the language just cited, Harlan also wrote that he did not dispute that"evils will result from the commingling of the two races" (Plessy, p. 562). Rather, he argued that the "evils" that could arise from racial mixing would be "infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race" (p. 562). Kluger (1976, p. 83) underscores the fact that Harlan did not seem to reject the social beliefs of the time. Kluger notes that in Cumming v. Richmond County Board of Education (1899), a case decided three years after Plessy, Justice Harlan wrote the opinion for a unanimous Court that upheld the Richmond County (Georgia) School Board's decision to close the county's black high school (in order to accommodate an overflow of black ele- mentary students) without providing the black students with access to the white high school (the Board advised that the black students should go to private,


church-affiliated schools). Apparently, in contrast to the transportation context, in which black-white interactions would be limited, the type of extensive mixing that would be required between black and white students in an educational setting was more than even Justice Harlan was able to accept.

Plessy, then, like Dred Scott, was a legal opinion consistent with the social beliefs of the time. These beliefs were not considered to be idle speculation; they reflected the best knowledge people had at the time. Today we would call such knowledge scientific. It was no less "scientific" then. What Professor Hoven- kamp (1985) wrote about in the context of judicial considerations of civil rights issues in the first two decades of the 20th century seems to apply equally to the majority of the Plessy Court: "Within the scientific paradigm of the day, the costs that racial integration would impose on all society (both white and black) far exceeded any value that American blacks might incidentally realize from being permitted to associate closely with the Caucasian" (p. 666).

In sum, both Dred Scott and Plessy reflected more than formal legal analyses: They reflected social beliefs about race that certainly were as important as were the laws in the books. It is probable that race issues represent only the tip of the iceberg. More likely, if we were to closely analyze legal decisions affecting social issues during the first century of the United States, we would find that most opinions reflected the social views of the day. It would seem that our understand- ing of the Bill of Rights and other social rights amendments and legislation that have their roots in the 18th and 19th centuries could be enhanced by an examination of the social views that existed during the period that such laws were enacted and subsequently interpreted.

C O N C L U S I O N

To the extent that the legal profession accepted and relied upon the "knowledge" of racial differences, it perpetuated American racism in the name of social science. Hovenkamp (1985) writes that "[t]he courts must bear a heavy share of the burden of American racism. [To an] outrageous and humiliating e x t e n t . . . American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions" (p. 624). Social science, and its predeces- sor scientists, also share in this shame. Both for purposes of policy and for "general knowledge," science has brought to bear its most sophisticated meth- odologies and techniques in an attempt to document racial differences and infe- riorities (see Gould, 1981). Social science and the law have been intertwined longer, in more pernicious ways, than is generally credited.

However, it is important to note that although in this article we have exam- ined the relationship between social science "knowledge" relevant to race and constitutional decisionmaking, we do not believe that judicial attention to social realities was restricted to issues of race relations. As we have indicated, we predict that a close examination would reveal that American courts have virtually always been influenced by "scientific" realities in cases of social concern or


controversy. Thus, it is not surprising that Collins and Friesen (1983, p. 297) point out that in the labor case of Muller v. Oregon (1908), Attorney Brandeis wanted to submit a social fact brief to the Court to take advantage of the implicit invitation that Brandeis saw in Justice Peckman's majority opinion and Justice Holmes's dissenting opinion to use such evidence in the case of Lochner v. New York, the 1905 opinion that Brandeis had to distinguish in order to prevail in Muller. Typ- ically, Lochner is not thought of as a "social science" case (but see, e.g., Hovenkamp, 1990; see also Rehnquist, 1976, pp. 702-703). It was not, in fact. But Justice Holmes explicitly raised the perspective in Lochner, arguing in dissent that "It]his case is decided upon an economic t h e o r y . . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics" (p. 75). Thus in Lochner, as in many social issue cases, social perspectives could play a role in making legal determinations even if the case seemingly was not one that required a role for social realities (see especially Hovenkamp, 1990, examining the impact of the "first" law and economics movement on the law in the last years of the 19th century and the first decades of the 20th century).

The remainder of the articles in this special issue reflect the long-standing relationship between social realities and law in the United States. These articles address various facets of social science and law in the context of the set of laws that have turned out to have the greatest impact on Americans' social lives during the latter half of the 20th century: That is, the first 10 amendments to the Con- stitution and the Fourteenth Amendment to the Constitution.

In December 1791, the first 10 amendments to the Constitution--termed the Bill of Rights--received final ratification by the States. These pieces of social legislation became part of the set of "first principles" upon which our nation still operates. The Fourteenth Amendment was added 77 years later, in the wake of the Civil War. In all, over 10,000 amendments have been proposed to the Con- stitution since the initial Bill of Rights were adopted; only 16 became part of the Constitution (Kammen, 1986, p. 11).

The Constitution clearly is a "living" document (e.g., Miller, 1979; Reich, 1967; cf. Rehnquist, 1976), and the interpretations of the meanings of this package of rights have varied over the last 200 years. Indeed, the Thirteenth, Fourteenth, and Fifteenth Amendments were enacted in response to the failure of the courts (and government in general) to provide adequate social protections under the original Constitution and its Bill of Rights (see, e.g., Curtis, 1986; Maltz, 1990). Despite the deficiencies displayed by, and the racism sometimes advanced by, governmental officials in interpreting and enforcing the Constitution and its Bill of Rights, it seems to us that these documents have fulfilled their responsibility to provide a template for development of a nation that champions the values contained in the initial Declaration of Independence: governments and laws that promote and protect the inherent equality of all people and their right to "Life, Liberty and the pursuit of Happiness.' ,2

It is in this spirit of optimism that the other five articles in this issue celebrate

2 The Declaration of Independence, para. 1 (U.S. 1776).


and honor the bicentennial of the United States Constitution. Initial presentations of the material contained in these articles were made at the annual convention of the American Psychological Association in 1987, the year of the 200th anniversary of the ratification of the original Constitution (Tomkins, 1987b, 1987c); because the presentations primarily focused upon the kinds of individuals' rights issues addressed by the Bill of Rights, final publication has been timed to coincide with the 200th anniversary of these all-important, first 10 amendments to the Consti- tution. These articles reveal a wide array of possibilities for, and limitations to, social science perspectives in the considerations of the social rights and guarantees provided under the most important of American laws, Constitutional law. It is clear that whatever the weaknesses of the Constitution (see, e.g., Marshall, 1987), it contains many evolutionary concepts that change with society and in turn change society (Kammen, 1986; Tomkins, 1987a). What could be more fitting for social and behavioral scientists, in general, and psychologists, in particular, than to study and write about issues related to the Constitution?

REFERENCES

Adkins v. Children's Hospital of the District of Columbia, 261 U.S. 525 (1923). Appendix to Appellants' Brief, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). (Re-

printed in Appendix to Appellants' Brief in the School Segregation Cases, The effects of segregation and the consequences of desegregation: A soei~ science statement, Minnesota Law Re- view, 1953, 37, 427-439).

Basler, R. P. (Ed.) (1953). The collected works of Abraham Lincoln (Vol. 2). New Brunswick, NJ: Rutgers University Press.

Bell, D. A., Jr. (1973). Race, racism and American law (First edition). Boston: Little, Brown. Berea College v. Kentucky, 211 U.S. 45 (1908). Bersoff, D. N. (1987). Social science data and the Supreme Court: Lockhart as a case in point.

American Psychologist, 42, 52-58. BoRer, P. F., Jr. (1969). American thought in transition: The impact of evolutionary naturalism,

1865-1900. Chicago: Rand McNaUy. Brameld, T. B. H. (1949). Educational costs. In R. M. Maclver (Ed.), Discrimination and national

welfare (pp. 37-48). New York: Institute for Religious Studies. Brief for the Defendant in Error, Muller v. Oregon, 208 U.S. 412 (1908). Brown v. Board of Education of Topeka [Brown 1"], 347 U.S. 483 (1954). Brown v. Board of Education of Topeka [Brown II] 349 U.S. 294 (1955). Bunting v. Oregon, 243 U.S. 426 (1917). Cahn, E. (1955). Jurisprudence. New York University Law Review, 30, 150-169. Cardozo, B. N. (1921). The nature of the judicial process. New Haven, C T Yale University Press. Cardozo, B. N. (1924). The growth of the law. New Haven, CT: Yale University Press. Chein, I. (1949). What are the psychological effects of segregation under conditions of equal facilities?

International Journal of Opinion and Attitude Research, 2, 229-234. Clark, K. B. (1950). Effect of prejudice and discrimination on personality development. Washington,

D.C.: White House Conference on Children and Youth. (Reprinted as Prejudice and your child (2nd ed.). Boston: Beacon Press.)

Clark, K. B. (1969). The social scientists, the Brown decision and contemporary confusion. In L. Friedman (Ed.), Argument: The oral argument before the Supreme Court in Brown v. Board of Education of Topeka, 1952-1955 (pp. xxi-1). New York: Chelsea House_

Clark, K. B., & Clark, M. P. (1958). Racial identification and preference in Negro children. In E. E.

SOCIAL PERSPECTIVES AND THE CONSTITUTION t 17

Maccoby, T. M. Newcomb, & E. L. Hartley (Eds.), Readings in social psychology (3rd ed., pp. 602-611). New York: Holt, Rinehart and Winston. (Originally published in 1947.)

Cohen, M. P. (1914). The process of judicial legislation. The American Law Review, 48, 161-198. Collins, R. K. L., & Friesen, J. (1983). Looking back on Muller v. Oregon [Part I]. American Bar

Association Journal, 69, 294-298. Cook, W. M. (1927). Scientific method and the law. American Bar Association Journal, 13, 303-309. Cumming v. Richmond County Board of Education, 175 U.S. 528 (1899). Curtis, K. M. (1986). No state shall abridge: The Fourteenth Amendment and the Bill o f Rights.

Durham, NC: Duke University Press. Deutscher, M., & Chein, I. (1948). The psychological effects of enforced segregation: A survey of

social science opinion. Journal o f Psychology, 26, 25%287. Diggins, J. P. (1984). The lost soul of American politics: Virtue, self-interest, and the foundations o f

liberalism. New York: Basic Books. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Doro, M. (1958). The Brandeis brief. Vanderbilt Law Review, 11, 784-799. Ehrlich, W. (1979). They have no rights: Dred Scott's struggle for freedom. Westport, CT: Greenwood

Press. Fehrenbacher, D. E. (1978). The Dred Scott case: Its significance in American law and politics. New

York: Oxford University Press. Frank, J. (1963). Law and the modern mind (2nd ed.). New York: Doubleday. Frazier, E. F. (1949). The Negro in the United States. New York: Macmillan. Fredrickson, G. M. (1971). The black image in the white mind: The debate on the Afro-American

character and destiny, 1817-1914. New York: Harper and Row. Fredrickson, G. M. (1988). The arrogance o f race: Historical perspectives on slavery, race, and social

inequality. Middletown, CT: Wesleyan University Press. Friedman, L. M. (1973). A history of American law (First edition). New York: Touchstone. Friesen, J., & Collins, R. K. L. (1983). Looking back on Muller v. Oregon [Part II]. American Bar

Association Journal, 69, 472--477. Gilmore, G. (1961). Legal realism: Its cause and cure. Yale Law Journal, 70, 1037-1048. Gossett, T. F. (1963). Race: The history of an idea in America. Dallas: Southern Methodist University

Press. Gould, S. J. (1981). The mismeasure of man. New York: W. W. Norton. Hailer, J. S., Jr. (1971). Outcasts from evolution: Scientific attitudes o f racial inferiority, 1859-1900.

Urbana, IL: University of Illinois Press. Hafemeister, T. L., & Melton, G. B. (1987). The impact of social science research on the judiciary. In

G. B. Melton (Ed.), Reforming the law: Impact o f child development research (pp. 27-59). New York: Guilford.

Haney, C. (1980). Psychology and legal change: On the limits of a factual jurisprudence, Law and Human Behavior, 4, 147-199.

Hofstadter, R. (1966). Social Darwinism in American thought (rev. ed.). Boston: Beacon Press. Holmes, O. W. (1881). The common law. Boston: Little, Brown. Horowitz, I. A., & Willging, T. E. (1984). The psychology of law: Integrations and applications.

Boston: Little, Brown. Hovenkamp, H. (1985). Social science and segregation before Brown. Duke Law Journal, 1985, 624-

672. Hovenkamp, H. (1990). The first great law & economics movement. Stanford Law Review, 42,993-

1058. Jordan, W. D. (1974). White over black: American attitudes toward the ,Negro, 1550-1812. New York:

Oxford University Press. Kaiman, L. (1986). Legal realism at Yale, 1927-1960. Chapel Hill, NC: University of North Carolina

Press. K~anmen, M. (1986). A machine that wouM go of itselfi" The Constitution in American culture. New

York: Alfred A. Knopf. Kidder, L. H. (1981). Sellitz, Wrightsman and Cook's research methods in social relations. New

York: Holt, Rinehart and Winston.


Khiger, R. (1976). Simple justice: The history of Brown v. Board of Education and Black America's struggle for equality. New York: Alfred A. Knopf.

Kovel, J. (1970). White racism: A psychohistory. New York: Vintage Books. Kuhn, T. S. (1970). The structure of scientific revolutions (2nd ed.). Chicago: University of Chicago

Press. Llewellyn, K. N. (1930). The bramble bush: Some lectures on taw and its study. New York: Columbia

University School of Law. Llewellyn, K. N. (1931). Some realism about realism--Responding to Dean Pound. Harvard Law

Review, 44, 1222-1264. Lochner v. New York, 198 U.S. 45 (1905). Loevinger, L. (1967). Law and science as rival systems. University of Florida Law Review, 19,

530-551. Lofgren, C. (1987). The Plessy case: A legal-historical interpretation. New York: Oxford University

Press. Loh, W. D. (1984). Social research in the judicial process: Cases, readings, and text. New York:

Russell Sage Foundation. Maltz, E. M. (1990). Civil rights, the Constitution, and Congress, 1863-1869. Lawrence, KS: Uni-

versity Press of Kansas. Marshall, T. (1987). Reflections on the bicentennial of the United States Constitution. Harvard Law

Review, 101, 1-5. McPherson, J. M. (1988). Battle cry of freedom: The Civil War era. New York: Oxford University

Press. Melton, G. B. (1987a). Bringing psychology to the legal system: Opportunities, obstacles, and effi-

cacy. American Psychologist, 42, 488--495. Melton, G. B. (Ed.) (1987b). Reforming the law: Impact of child development research. New York:

Guilford. Melton, G. B. (1990). Realism in psychology and humanism in law: Psycholegal studies at Nebraska.

Nebraska Law Review, 69, 251-277. Mikva, A. J. (1990). Bringing the behavioral sciences to the law: Tell it to the judge or talk to your

legislator? Behavioral Sciences and the Law, 8, 285-289. Miller, A. S. (1979). Social change and fundamental law: America's evolving Constitution. Westport,

CT: Greenwood Press. Miller, L. (1966). The petitioners: The story of the Supreme Court of the United States and the negro.

New York: Pantheon Books. Moore, U. (1923). Rational basis of legal institutions. Columbia Law Review, 23, 609-617. Monahan, J., & Walker, L. (1986). Social authority: Obtaining, evaluating, and establishing social

science in law. University of Pennsylvania Law Review, 134, 477-517. Monahan, J., & Walker, L. (1987). Social frameworks: A new use of social science in law. Virginia

Law Review, 73, 559-598. Monahan, J., & Walker, L. (1990). Social science in law: Cases and materials (2nd ed.). Westbury,

NY: Foundation. Muller v. Oregon, 208 U.S. 412 (1908). Myrdal, G. (1944). An American dilemma. New York: Harper. Nolan, C. H. (1967). The Negro's image in the south: The anatomy of white supremacy. Lexington,

KY: University of Kentucky Press. Oneida v. National Silver, 25 N.Y.S.2d 271 (Sup. Ct. 1940). Osofsky, G. (1967). The burden of race. New York: Harper and Row. Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738 (1824). Patterson, E. W. (1953). Jurisprudence: Men and ideas of the law. Brooklyn, NY: Foundation Press. Perry, G. S., & Melton, G. B. (1984). Precedential value of judicial notice of social facts: Parham as

an example. Journal of Family Law, 22, 633-676. Plessy v. Ferguson, 163 U.S. 537 (1896). Pound, R. (1907). The need of a sociological jurisprudence. Green Bag, 19, 607-615. Pound, R. (1908). Mechanical jurisprudence. Columbia Law Review, 8, 605-623.


Pound, R. (191 la). The scope and purpose of sociological jurisprudence [Part I]. Harvard Law Review, 24, 591-619.

Pound, R. (1911b). The Scope and purpose of sociological jurisprudence [Part II]. Harvard Law Review, 25, 140-168.

Pound, R. (1912). The scope and purpose of sociological jurisprudence [Part III], Harvard Law Review, 25, 489--516.

Pound, R. (1923a). The theory of judicial decision I: The materials of judicial decision. Harvard Law Review, 36, 641-662.

Pound, R. (1923b). The theory of judicial decision II: Nineteenth-century theories of judicial finding of law. Harvard Law Review, 36, 802-825.

Pound, R. (1923c). The theory of judicial decision l i e A theory of judicial decision for today. Harvard Law Review, 36, 940--959.

Purcell, E. A., Jr. (1973). The crisis of democratic theory: Scientific naturalism and the problem of value. Louisville: University Press of Kentucky.

Purcell, E. A., Jr. (1978). American jurisprudence between the wars: Legal realism and the crisis of democratic theory. In L. M. Friedman & H. N. Schreiber (Eds.), American law and the constitutional order: Historical perspectives (pp. 359--374). Cambridge, MA: Harvard University Press. (Reprinted from American Historical Review, 1969, 75, 424--446.)

Rabinowitz, H. N. (1980). Race relations in the urban south, 1865-1890. New York: Oxford Univer- sity Press.

Radin, M. (1925). The theory of judicial decision: Or how judges think. American Bar Association Journal, 11, 357-362.

Rehnquist, W. H. (1976). The notion of a living Constitution. Texas Law Review, 54, 693-706. Reich, C. A. (1967). The living Constitution and the Court's role. In S. P. Strickland (Ed.), Hugo

Black and the Supreme Court: A Symposium (pp. 133-162). New York: Bobbs-Merrill. Riegel, S. J. (1984). The persistent career of Jim Crow: Lower federal courts and the 'separate but

equal' doctrine, 1865-1896. The American Journal of Legal History, 28, 17-40. Robinson, E. (1935). Law and the lawyers. New York: Macmillan. Rosen, P. (1972). The Supreme Court and social science. Urbana, IL: University of Illinois Press. Rumble, W. E. (1968). American legal realism: Skepticism, reform, and the judicial process. Ithaca,

NY: Cornell University Press. Saks, M. J., & Baron, C. (Eds.). (1980). The use/nonuse/misuse of applied social research in the

courts. Cambridge, MA: Abt. Saks, M. J., & Van Duizend, R. (1983). The use of scientific evidence in litigation. Williamsburg, VA:

National Center for State Courts. Schlegel, J. H. (1979). American legal realism and empirical social science: From the Yale experience.

Buffalo Law Review, 28, 459-586. Schlegel, J. H. (1980). American legal realism and empirical social science: The singular case of

Underhill Moore. Buffalo Law Review, 29, 195-323. Sweatt v. Painter, 339 U.S. 629 (1950). Stampp, K. M. (1956). The peculiar institution: Slavery in the antebellum south. New York: Vintage. Tapp, J. L. (1976). Psychology and the law: An overture. Annual Review of Psychology, 27, 359-404. Tomkins, A. J. (1987a). Psychology and the Constitution. Psychology Today, 21 (September), 48-50. Tomkins, A. J. (Chair) (1987b, August). Social science and the Constitution: Perspectives and roles.

Symposium presented at the meeting of the American Psychological Association, New York. Tomkins, A. J. (Chair) (1987c, August). Social science and the Constitution: Psycholegal perspec-

tives on individual's rights. Symposium presented at the meeting of the American Psychological Association, New York.

Tremper, C. R. (1987). Organized psychology's efforts to influence judicial decision making. Ameri- can Psychologist, 42, 496--501.

van den Haag, E. (1960). Social science testimony in the desegregation cases: A reply to Professor Kenneth Clark. Villanova Law Review, 6, 69-79.

VanderZanden, J. W. (1959). The ideology of white supremacy. Journal of the History of Ideas, 20, 385-402.


Walker, L., & Monahan, J. (1988). Social facts: Scientific methodology as legal precedent. California Law Review, 76, 877-896.

Webster, C. D. (1984). On gaining acceptance: Why the courts accept only reluctantly findings from experimental and social psychology. International Journal of Law and Psychology, 7, 407--414.

White, G. E. (1972). From sociological jurisprudence to realism: Jurisprudence and social change in early twentieth-century America. Virginia Law Review, 58, 999--1028.

White, G. E. (1976). The American judicial tradition: Profiles of leading American judges. New York: Oxford University Press.

Wigmore, J. H. (1909). Professor Munsterberg and the psychology of evidence. Illinois Law Review, 3, 399--445.

Witmer, H. L., & Kotinsky, R. (Eds.) (1952). Personality in the making: The fact-finding report of the Midcentury White House Conference on Children and Youth. New York: Harper.

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