Freund, Paul A. (1908-1992)

Paul A. Freund, an eminent constitutional law scholar at Harvard Law School, was born in St. Louis, Missouri on February 16, 1908. After graduating from Washington University in 1928 and receiving his L.L.B and S.J.D. from Harvard Law School in 1931 and 1932, he served as law clerk to Justice Louis D. Brandeis (1932–1933). He spent most of the next dozen years serving in the executive branch of the federal government—in the Treasury Department, Reconstruction Finance Corporation, and twice in the Solicitor’s General’s office. He joined the Harvard Law School faculty first in 1939, and then permanently in 1946, where he taught until his retirement in 1976. Freund declined the entreaty of President John F. Kennedy to serve as Solicitor General in December 1960. Kennedy later considered, but passed over, Freund for two Supreme Court appointments in 1962. Freund died February 5, 1992.

Freund wrote widely on the Supreme Court and its justices and the constitutional issues of the era, including those relating to civil liberties. He frequently testified before Congressional committees considering such matters.

Freund generally supported the Warren Court’s decisions that took on expansive view of civil liberties. He thought they made America more participatory and less hierarchical. He did not usually embrace the absolute tests of many of those opinions, believing that the cases often involved competing principles. He tended to strike the balance in a way that protected civil liberties but thought the Warren Court sometimes prescribed one approach when a range of solutions would protect the constitutional norm.

Freund defended the Court’s decisions in the early 1960s that banned organized school prayer and classroom Bible reading. He thought these outcomes reflected a proper balance between the claims of the establishment and free exercise clauses consistent with the concept of religious voluntarism implicit in American traditions. The classroom presented an area where psychological pressures to conform were most likely to be coercive. Freund did not view the establishment and free exercise clauses as absolutes. They must yield at times to public concerns and to each other.

Freund helped develop and defend the constitutional basis for the public accommodations section of the Civil Rights Act of 1964. In a 1963 brief requested by the Senate Committee on Commerce, Freund argued that Congress had power under the Commerce Clause to outlaw racial discrimination in places of public accommodation. He thought that resting the legislation on } 5 of the Fourteenth Amendment was riskier and more problematic jurisprudentially. Congress adopted Freund’s rationale, and the Supreme Court upheld the legislation on that basis.

Freund gave early defense to race conscious remedies to address past discrimination against African Americans. In 1964, when Affirmative Action was in its infancy, he argued that the Constitution did not preclude transitional measures to provide favored treatment to racial minorities to correct for past disadvantage. The Constitution mandated equal protection of the law, not color blindness. The latter was simply a metaphor, and a misleading one at that.

JOEL K. GOLDSTEIN

References and Further Reading

• Freund, Paul A. On Law and Justice. Cambridge: The Belknap Press of Harvard University Press, 1968.
• ———. The Supreme Court of the United States: Its Business, Purposes, and Performance. Cleveland: World Publishing Company 1961.
• In Memoriam: Paul A. Freund. (Essays by Hon. William J. Brennan, Jr., Hon. Lewis F. Powell, Jr., Archibald Cox, James Vorenberg, and Anthony Lewis) Harvard Law Review 106 (1992): 1–18.

See also Affirmative Action; Brandeis, Louis Dembitz; Civil Rights Act of 1964; Establishment and Free Exercise Clauses; Warren Court