judges felt were under assault from new regulatory statutes.19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional in- terpretation.?0 The common law had long been a natural-law surro- gate in statutory interpretation,and a nostalgic Supreme Court pursued that theme episodically for two generations,from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist:They contended that the common law was no longer sufficient to the needs of a complex,strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society,and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy.Pound argued,for example, that the importation by judges of their libertarian values into stat- utes was "spurious"statutory interpretation and inconsistent with the proper role of courts in a democracy.21 According to Pound,the proper method of statutory interpretation was an "imaginative re- construction"of the legislature's specific intent.22 That view had many adherents among progressive jurists2s but was not so jurispru- dentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes,Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound,Holmes was a positivist who astringently believed in the separation of law and morals.Like Pound,he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound,Common Law and Legislation,21 HARV.L.REv.383,384-85 (1908). 20.Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co.v.Journeymen Stonecutters'Ass'n,274 U.S.37,39 (1927)(narrowing interpretation of Clayton Act's labor exemptions),Duplex Printing Press Co.v.Deering, 254 U.S.443,446-48 (1921)(similar),Caminetti v.United States,242 U.S.470,491 (1917)(expansive interpretation of morals statute to cover fornication),Loewe v. Lawler,208 U.S.274,292-93(1908)(expansive interpretation of Sherman Act to cover labor unions),Northern Sec.Co.v.United States,193 U.S.197,327 (1904)(expansive interpretation of Sherman Act to cover corporate size),and United States v.E.C.Knight Co.,156 U.S.1,16-17 (1895)(narrowing interpretation of Sherman Act to exempt man- ufacturing monopolies). 21.Roscoe Pound,Spurious Interpretation,7 CoLUM.L.REV.379,382 (1907). 22.For Pound,the role of the judge should be to discover "what the law-maker meant by assuming his position,in the surroundings in which he acted,and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them,his intention with respect to the particular point in controversy."Id.at 381;see also Roscoe Pound,Enforcement of Law,20 GREEN BAG 401 (1908).Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court,90 F.248,251 (C.C.S.D.1owa1898). 23.Judge Learned Hand was perhaps the most notable of these.See Fishgold v. Sullivan Drydock Repair Corp.,154 F.2d 785,788-91 (2d Cir.),af'd,328 U.S.275 (1946);Lehigh Valley Coal Co.v.Yensavage,218 F.547,553 (2d Cir.1914),rert.denied, 235U.S.705(1915). 24."We do not inquire what the legislature meant;we ask only what the statute means."Oliver Wendell Holmes,The Theory of Legal Interpretation,12 HARV.L.REV.417, 419(1899). 1734 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1734 1992-1993judges felt were under assault from new regulatory statutes. 19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional in￾terpretation. 20 The common law had long been a natural-law surro￾gate in statutory interpretation, and a nostalgic Supreme Court pursued that theme episodically for two generations, from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist: They contended that the common law was no longer sufficient to the needs of a complex, strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society, and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy. Pound argued, for example, that the importation by judges of their libertarian values into stat￾utes was "spurious" statutory interpretation and inconsistent with the proper role of courts in a democracy. 2' According to Pound, the proper method of statutory interpretation was an "imaginative re￾construction" of the legislature's specific intent.22 That view had many adherents among progressive jurists23 but was not sojurispru￾dentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes, Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound, Holmes was a positivist who astringently believed in the separation of law and morals. Like Pound, he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound, Common Law and Legislation, 21 HARv. L. REV. 383, 384-85 (1908). 20. Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co. v. Journeymen Stonecutters' Ass'n, 274 U.S. 37, 39 (1927) (narrowing interpretation of Clayton Act's labor exemptions), Duplex Printing Press Co. v. Deering, 254 U.S. 443, 446-48 (1921) (similar), Caminetti v. United States, 242 U.S. 470, 491 (1917) (expansive interpretation of morals statute to cover fornication), Loewe v. Lawler, 208 U.S. 274, 292-93 (1908) (expansive interpretation of Sherman Act to cover labor unions), Northern Sec. Co. v. United States, 193 U.S. 197, 327 (1904) (expansive interpretation of Sherman Act to cover corporate size), and United States v. E.C. Knight Co., 156 U.S. 1, 16-17 (1895) (narrowing interpretation of Sherman Act to exempt man￾ufacturing monopolies). 21. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REv. 379, 382 (1907). 22. For Pound, the role of the judge should be to discover "what the law-maker meant by assuming his position, in the surroundings in which he acted, and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy." Id. at 381; see also Roscoe Pound, Enforcement of Law, 20 GREEN BAG 401 (1908). Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court, 90 F. 248, 251 (C.C.S.D. Iowa 1898). 23. Judge Learned Hand was perhaps the most notable of these. See Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 788-91 (2d Cir.), aff'd, 328 U.S. 275 (1946); Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914), cert. denied, 235 U.S. 705 (1915). 24. "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899). 1734 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1734 1992-1993