Freund, Ernst (b, New York, N.Y., 30 Jan. 1864; d. Chicago, Ill., 20 Oct. 1932), educator, lawyer, writer, and social reformer. Freund, a son of German immigrants, has been called the “father of American administrative law.” He influenced the Supreme Court through his highly influential treatise Police Power: Public Policy and Constitutional Rights (1904) and through his strong views on the desirable breadth of freedom of speech. Educated in universities at Berlin and Heidelberg, he practiced law in New York and became professor of administrative law and municipal corporations at Columbia University, where he also earned a Ph.D. in political science. Moving to the University of Chicago, he joined its new law school faculty in 1903 and took a prominent part in founding its school of social service, teaching courses in social legislation, and calling for a science of legislation. This prompted later scholars, impressed with his commitment to keeping legal enactments abreast of human relations, to see him as a prominent forerunner of sociological jurisprudence. Indeed, Louis Brandeis, writing in 1934, claimed that Freund, as much as Roscoe Pound, was the founder of that movement.

His Police Power came immediately to the notice of the bench and bar, and the Supreme Court cited its exposition of the restrictions placed on legislative power by the Fourteenth Amendment. In it Freund defined the police power as the power of government to promote the public welfare by restraining and regulating the use of property. He also addressed the conditions that called for restraint and regulation. These included especially: peace and security from crime, public safety and health, public order and comfort, and public morals. He also dealt with the control of dependent classes, seeking to protect them against fraud and exploitation. He argued that government should not impose particular burdens on individuals or corporations but should also not grant special privileges or monopolies. Legislative discrimination should be justified by legitimate differences of status based on logical social distinctions.

Freund was a theoretical defender of free speech in the Progressive era who distinguished the legitimate substantive due process defense of free speech from the excessive substantive due process defense of laissez‐faire, based on legal formalism that ignored real world conditions (See Progressivism). For him, the Fourteenth Amendment Due Process Clause gave the courts the power to protect “the fundamental rights of the individual,” which included the freedom of the individual to enter into legal relations with others and of appealing in any manner to public opinion or sentiment. He stressed the First Amendment's role in guaranteeing the most ample freedom of discussion of public affairs (including freedom of pursuit in art, literature, and science). Speech had a clear social utility. (See Speech and the Press.) For example, he felt the outcome of the Court's rule in Debs v. United States (1919), in particular, was dangerously unsound, illustrating most clearly in the arbitrariness of the whole idea of limited provocation. Such a view led Justice Oliver Wendell Holmes, in his dissent in Abrams v. United States (1919), to modify his position and embrace a more nearly Freundian view of the First Amendment.

During his later years, Freund prepared widely used guides on legislative drafting for the ABA, and in his Administrative Powers over Persons and Property (1928), he warned against the growth of government powers, arguing for a type of regulation that combined respect for individual rights with a growing sense of the social obligations of property, while recognizing the paramount claims of public interest. Always a fastidious, probing, and diverse scholar (his many pamphlets ranged from English history, administrative law and labor law, to immigration and illegitimacy), his legal realism stressed sound empirical work and the utility of social research in making the law responsive to human needs.

Paul L. Murphy

FREUND, ERNST

Ernst Freund was a brilliant legal scholar who oversaw the development of U.S. administrative law at the turn of the twentieth century. A social reformer, Freund was an early proponent of social research as a means of shaping the content of U.S. law. As a political progressive, he also was an articulate supporter of free speech rights under the first amendment of the U.S. Constitution.

Freund was born in New York City on January 30, 1864, to German American parents. He attended the University of Berlin and the University of Heidelberg, receiving a law degree from the latter in 1884. He went to New York and practiced law there from 1886 to 1894.

Freund entered academe in 1892 when he became professor of administrative law and municipal corporations at Columbia University. (He was also a doctoral student at Columbia's School of Political Science; he received his Ph.D. in 1897.) In 1894, he began a long association with the University of Chicago, accepting a position in the political science department as a professor of roman law and jurisprudence. In 1903, he joined the faculty of the university's newly opened law school. Freund taught courses in social legislation and proposed a new field, the "science of legislation," to underscore the connection between political science and law.

Freund became a prominent figure at the law school and served as the John P. Wilson Professor of Law from 1929 to 1932. One of his many achievements was the establishment of the University of Chicago's highly regarded graduate-level social services program, the first such program in the nation. Involved in several professional organizations, Freund served as president of the American Political Science Association in 1915.

Freund's renown in legal circles grew as a result of his cogent writing on the function and parameters of administrative law (the body of statutes, regulatory rules and regulations, and court decisions implemented by administrative and government agencies). Freund's most famous publication on the subject was Police Power: Public Policy and Constitutional Rights, published in 1904. Freund analyzed the limitations imposed on legislative power by the fourteenth amendment of the U.S. Constitution. He advocated a system of legal regulations that balanced individual rights against business and property rights.

"The state takes property by eminent domain because it is useful to the public, and under police power because it is harmful."
—Ernst Freund

Freund's interest in statutory drafting led to a position on the Commission on Uniform State

Laws in 1908. Freund created model statutes to bolster the civil rights of married women, and offered commentary on divorce, guardianship, illegitimacy, labor law, and child labor. He also produced a handbook on legislative drafting in 1921 and offered drafting instructions to the american bar association.

In 1928, Freund published Administrative Powers over Persons and Property, a treatise on the distinctions between the power held by government, individuals, and property. In other works, Freund wrote about the necessity of protecting what he termed the dependent class, the less privileged members of society who were vulnerable to exploitation. A man of action, he helped organize the Immigrants' Protective League in 1908 and served as president of that organization for several terms.

A staunch supporter of free speech, Freund published articles on the specific rights guaranteed by the First Amendment of the U.S. Constitution. He believed that the open discussion of public affairs was a crucial underpinning of U.S. society.

Freund married Harriet Walton on May 13,1916. The couple had two children, Nancy Freund and Emily Lou Freund. In 1931, Freund was awarded an honorary doctor of laws degree from the University of Michigan. He died the following year, in Chicago, on October 20, 1932.

further readings

Freund, Ernst. 1965. Standards of American Legislation. 2d ed. Chicago: Univ. of Chicago Press.

Kraines, Oscar. 1974. The World and Ideas of Ernst Freund. University, Ala.: Univ. of Alabama Press.