The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights. - book reviews

National Review, Feb 20, 1995 by Alex Kozinski

Constitutional interpretation is a messy business; it always has been. Since the Supreme Court discovered early in the last century that it could strike down laws repugnant to the Constitution, there has been a lively debate over the proper scope of that power. The precise terms of the debate have changed over time, but the outline has remained the same: Giving judges broad authority to invalidate legislation interferes with the people's right to govern themselves, transferring power to an unelected, politically unresponsive oligarchy; a narrow power of judicial review abandons individuals and minority groups to the tender mercies of the majority. After almost two centuries of trial and error, we are no closer to developing a comprehensive theory of constitutional adjudication than physicists are to developing a unified field theory.

At the heart of any constitutional issue lie two closely related questions. First, what is the scope of the powers the majority may properly exercise through the instruments of government? Second, in what areas must individuals be free from government restraint? During much of our constitutional history these questions were resolved by references to a theory of "natural rights," which defined the individual's relationship to the state less by parsing minutiae of constitutional text than by drawing on transcendent principles of fairness and justice.

Natural-rights theory fell into disrepute after it was used as a basis for invalidating much New Deal social legislation, and has since been treated largely with disdain by judges, lawyers, and constitutional theorists. In his new book, Hadley Arkes, an Amherst professor and NR contributing editor, seeks to rekindle interest in natural-rights theory and rehabilitate a Supreme Court Justice who was one of its staunchest proponents. It is a book worth serious consideration.

Visit a constitutional-law class in any law school today and chances are you will hear George Sutherland mentioned, if at all, in derisive and dismissive terms. He is typically lumped in with the rest of the "Four Horsemen" - the Supreme Court Justices (Sutherland, McReynolds, Van Devanter, and Butler) who frequently voted as a bloc to invalidate New Deal legislation. Sutherland's jurisprudence gets virtually no attention, and his character is often confused with that of McReynolds, a cantankerous bigot. Mr. Arkes works hard to rescue Sutherland from the lowly ranks to which modern scholarship has consigned him. He points out that Sutherland was in many ways the antithesis of McReynolds: as a person, he was respectful, gentlemanly, and kind; as a legal scholar, he was thoughtful and erudite.

Many of Sutherland's ideas, Mr. Arkes notes, were thoroughly modern and have found a lasting place in our jurisprudence. In two cases involving statutes that set minimum wages for women but not for men, Sutherland wrote opinions stressing the irrationality of laws that presume women less capable than men of fending for themselves in the marketplace. In another case, he reversed the convictions of seven black men (the so-called "Scottsboro boys") who had been sentenced to death in Alabama for raping two white women. The ruling, grounded on the inadequacy of the defendants' court-appointed lawyers, came three decades before the Supreme Court announced that criminal defendants are generally entitled to be represented by counsel. In yet another case, Sutherland upheld the President's broad authority to act, even without the consent of Congress, in the area of foreign relations. Around the same time, Sutherland held that Congress could bar the President from removing members of independent agencies - an opinion that played a prominent role in the Supreme Court's recent decision upholding the independent-counsel statute.

These achievements, Mr. Arkes complains, have been obscured because few have bothered to take a careful look at the theory that animated Sutherland's approach to constitutional law. Arkes spends much time analyzing and explaining Sutherland's work to show that it reflects, not an obdurate refusal to yield to the Zeitgeist, but an integrated theory about individual rights and the workings of government.

Reading through Sutherland's opinions, one comes to agree with Arkes that this was, indeed, a thoughtful jurist with a carefully honed sense of the proper interplay between governmental power and personal freedom. But his jurisprudence was certainly not flawless. First, many of Sutherland's opinions rest on the premise that the Constitution protects liberty of contract - a premise Sutherland did not justify or examine. He offered no answer to other Justices who argued that nothing in the Constitution protects that right, nor did he have a satisfactory response to the argument that the Supreme Court has often approved significant limitations thereon. Sutherland similarly dodged a number of difficult constitutional issues in the Scottsboro case. While the result he reached is consistent with modern notions of justice and due process, he failed to explain how Alabama could have a constitutional duty to appoint effective counsel when the Court had not yet held that the states have a constitutional duty to appoint any counsel at all.