Freund, Paul Abraham

(b. 16 February 1908 in St. Louis, Missouri; d. 5 February 1992 in Cambridge, Massachusetts), constitutional scholar and distinguished teacher at the Harvard Law School.

Freund, the son of Charles Freund and Hulda Arenson, demonstrated his academic abilities when, at the age of eleven, he graduated from the Wyman School and entered high school in St. Louis. Interviewed by the St. Louis Post-Dispatch, he admitted to a love of poetry and expressed interest in becoming a lawyer but confessed that “supreme happiness could come if he could only grow up to be a bigleague baseball player.” His lifelong love of sports followed naturally from his membership in the “Knothole Gang,” a group of children who, as tradition has it, watched the Cardinals through the holes in the wooden fence that surrounded the field.

In 1928 Freund graduated from Washington University. He went on to study at Harvard Law School, where he was elected president of the editorial board of the Harvard Law Review and in 1931 earned his bachelor of laws degree. Serving as Felix Frankfurter’s graduate assistant, he completed his doctorate the following year. Frankfurter, in turn, selected Freund to clerk for Justice Louis D. Brandeis for the 1932 Supreme Court term.

Like many of the talented young lawyers of the era, Freund took advantage of the employment opportunities created by the New Deal. From 1933 to 1935 he served on the legal staff of the Treasury Department and the Reconstruction Finance Corporation, and from 1935 to 1939 as special assistant in the office of the Solicitor General. During his time in the Department of Justice he prepared briefs or argued a number of landmark cases before the Supreme Court, including United States v. Carotene Products (304 U. S. 144, 1938), Electric Bond & Share Co. v. S.E.C. (303 U. S. 419, 1938), and Tennessee Power Co. v. T. V. A. (306 U.S. 118, 1939). He returned to the Solicitor General’s office from 1942 to 1946, successfully defending the federal government’s wartime regulation of prices and wages.

In the meantime Harvard Law School appointed Freund to its faculty, first as a lecturer (1939) and then as professor (1940), and assigned him responsibility for teaching constitutional law and conflict of laws. Freund’s professional experience, extensive knowledge of history, enduring love of literature, and mastery of the law itself made for a winning combination in the classroom. Viewed by both students and colleagues as the quintessential teacher, he was named Fairchild Professor in 1950, Royall Professor in 1957, and Carl M. Loeb University Professor in 1958, the last appointment providing opportunities to teach Harvard undergraduates as well as law students.

Freund was, in his own words, “by temperament and conviction preeminently a teacher.” This sense of himself, along with his having recently agreed to serve as editor in chief of the multivolume History of the Supreme Court, known as the Holmes’ Devise, explains his decision to decline appointment as solicitor general of the United States, a position that has traditionally served as a stepping stone to the Supreme Court. Disappointed, President John F. Kennedy remarked, “I’m sorry. I hoped you would prefer making history to writing it.”

The demands of overseeing the History of the Supreme Court and the standards Freund imposed on himself as editor of the series and as author of the volume on the New Deal Court proved formidable. Although he published a number of articles about the Supreme Court under Chief Justice Charles Evans Hughes, he eventually delegated completion of both projects to others.

Over the course of his career Freund published more than 100 articles, primarily in law reviews, along with three collections of essays. Convinced that the Constitution requires compromise, he dismissed absolutist approaches and explored instead its complexities, ambiguities, and tensions. Quoting Lord Acton, one of his favorite authors, he insisted, “when you perceive a truth, look for the balancing truth.”

Freund questioned whether one could identify the “original intent” of the Framers and argued instead that, “like a work of artistic creation, the Constitution endures because it is capable of responding to the concerns, the needs, the aspirations of successive generations.” Similarly, he challenged the practice among judges of drawing selectively from history to justify results that should have been reached on other grounds.

His academic career included appointment as Pitt Professor of American History and Institutions at Cambridge University (1957-1968) and fellow at the Center for Advanced Study of Behavior Sciences in Palo Alto, California (1969-1970). He also served as director of the Salzburg Seminar in American Studies. In 1975 the National Endowment for the Humanities chose him as Jefferson lecturer.

Appointed by Chief Justice Warren Burger to chair the Federal Judicial Center’s Study Group on the Caseload of the Supreme Court, Freund assumed much of the responsibility for the controversial report issued in 1972. The committee’s recommendations included the establishment of a National Court of Appeals to screen all petitions for certiorari and appeal, creation by law of a nonjudicial body to investigate and report on complaints of prisoners, and increased staff support for the Supreme Court. None of the group’s recommendations was adopted.

Freund retired from Harvard Law School in 1976 but remained active. In addition to his scholarly work, he chaired the Judicial Selection Commission of the United States Court of Appeals, First Circuit, from 1977 to 1979. Over the course of his life he received twenty-one honorary degrees as well as awards from the American Bar Foundation, the Federal Bar Council, the Thomas Jefferson Memorial Foundation, the American Law Institute, and the Civil Liberties Union of Massachusetts. He died of cancer in 1992.

A modest, gentle man who never married or had children, Freund believed deeply that the law should be studied with a recognition of the impact it has on individuals’ lives. His own knowledge of the humanities and affinity for literature enabled him to convey this to his students through an apt quotation, a reference to history, and, above all, his own example. “I never knew anyone kinder or more considerate than Paul,” observed his colleague James Vorenberg. “He was incapable of meanness.” A brilliant scholar, Freund’s greatest legacy lies nevertheless in the influence of his teaching on his students.

Freund’s papers are deposited in the Harvard Law School Archives but are not yet cataloged. His published works include On Understanding the Supreme Court (1949, 1977); Constitutional Law: Cases and Other Problems (4th ed. 1977); The Supreme Court of the United States: Its Business, Purposes and Performance (1961); Religion and the Public Schools (1965); and On Law and Justice (1968). Memorials are in The American Scholar (spring 1993), Harvard Law Review (Nov. 1992), and The New Yorker (24 Feb. 1992). Obituaries are in the Boston Globe, New York Times, and Washington Post (6 Feb. 1992).

Christine L. Compston