>>> Item number 986, dated 95/01/10 07:23:58 -- ALL

Date:         Tue, 10 Jan 1995 07:23:58 -0600
Reply-To:     H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
Sender:       H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
From:         Chris Waldrep <cfcrw@uxa.ecn.bgu.edu>
Subject:      Justice Sutherland Rehabilitated

From: "Bernstein, David" <dbernste@lawmail.law.columbia.edu>

           The Wall Street Journal had a review on Thursday of a new
           book by Hadley Arkes on Justice George Sutherland.  The book
           apparently takes a rather positive view of Justice
           Sutherland's jurisprudence.  Perhaps, given the new
           political climate, a Sutherland revival will get underway.
           In his day, he was considered a great justice, and certainly
           was prescient in advocating women's rights and expansive
           use of the due process clause.  In a broader sense, of
           course, he was on the losing side of history.

           David Bernstein
           Research Fellow
           Columbia University School of Law

>>> Item number 993, dated 95/01/10 15:08:09 -- ALL

Date:         Tue, 10 Jan 1995 15:08:09 -0600
Reply-To:     H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
Sender:       H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
From:         Chris Waldrep <cfcrw@uxa.ecn.bgu.edu>
Subject:      Re: Justice Sutherland Rehabilitated?

From: ej1234@usma7.USMA.EDU (Lurie Jonathan VP)

I am interested in the description of Sutherland's "expansive" use of due process, an adjective not usually associated with his jurisprudence. Given his emotive handwringing in West Coast Hotel v. Parrish, the word "expansive" seems "unusual," to put it tactfully.

>>> Item number 998, dated 95/01/11 08:09:37 -- ALL

Date:         Wed, 11 Jan 1995 08:09:37 -0600
Reply-To:     H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
Sender:       H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
From:         Chris Waldrep <cfcrw@uxa.ecn.bgu.edu>
Subject:      Sutherland

LEISURE & ARTS -- Bookshelf:
The Father of Natural Rights

WALL STREET JOURNAL (J) 01/05/95 By Steven J. Eagle

The last time most Americans were asked to think about "natural rights" was when Sen. Joseph Biden (Democrat from Delaware) browbeat 1991 Supreme Court nominee Clarence Thomas for believing in them too much. Yet four years before Mr. Biden had harangued Robert Bork for not believing in them enough. Such confusion -- inspired by politics more than political philosophy -- is especially lamentable since much of our national debate about constitutional rights is based on the concept of natural law and its role in regulating governmental power.

The importance of natural-rights theory was openly acknowledged from the 1870s to the 1930s. During that period, the Supreme Court accepted that "due process of law" required not only procedural fairness but a harmony between the substance of law and certain inalienable human liberties. An important part of this "substantive due process" was the sanctity of property and contract rights. By 1937- 38, however, the onslaught of the New Deal forced a judicial aboutface on the powers of government to curtail such rights. The court has accepted the legitimacy of the regulatory state ever since.

Advocating that the Supreme Court again espouse natural-rights jurisprudence is an ambitious undertaking, as is attempting to rehabilitate the Supreme Court justice who, for many, personifies the ideas behind substantive due process. In "The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights" (Princeton, 297 pages, $29.95), Hadley Arkes accomplishes both tasks with rhetorical skill and intellectual tenacity.

The principal accusation against Sutherland, who served on the court from 1922 to 1938, is that his opinions thwarted the public good by offering an extreme defense of laissez-faire economics. Indeed, by the time of the New Deal, Sutherland and three other conservative justices on the court were known as the "Four Horsemen of Substantive Due Process" for their natural-rights resistance to FDR's regulatory activism.

In Adkins vs. Children's Hospital (1923), to take an early example, Sutherland wrote the opinion invalidating a law setting a minimum wage for women. He declared that "freedom of contract is . . . the general rule and restraint the exception," and that a "moral requirement implicit in every contract of employment" required that the value of labor and the amount of wages be equal as set through free bargaining. Sutherland's enemies consider these words proof of heartlessness, and the conventional wisdom agrees with Chief Justice William Howard Taft's dissent: that Sutherland substituted his economic views for those of Congress.

Yet, as Mr. Arkes tells the story, the law had established a dubious schedule of wages based on occupations, designed to "maintain women in good health and . . . protect their morals." The plaintiff, Willie Lyons, had enjoyed her job as an elevator operator and had earned $35 a month, the going rate. Since the statute required that she be paid $71 to protect her health and morals, Mrs. Lyons lost her job to a man.

Sutherland's opinion reflected his conviction that government could have no principled way to equate an individual's moral or material needs with sex, occupation or any other arbitrary characteristic. By contrast, Mr. Arkes reminds us, when Sutherland found a clear basis for a governmental action, such as limiting working hours in dangerous occupations, he had no difficulty supporting the state's police powers.

In numerous areas -- especially interstate commerce, where courts have allowed federal regulatory powers to expand seemingly without limit -- Mr. Arkes shows how the natural-rights theory of Sutherland and jurists like him offers a morally persuasive justification for the limited ends of the national government. For modern-day liberals to demonize natural-rights jurisprudence because of its earlier use in supporting economic liberties, he believes, is in fact counterproductive. "To bar a person, arbitrarily, from shining shoes on a public street," Mr. Arkes writes, "may be no less grave a matter of civil liberties than restraining the same person from standing on his shoeshine box and delivering a speech."

Oddly, Sutherland is known today as well for a decision that has led to massive regulation of land use. His 1926 opinion in Village of Euclid vs. Ambler Realty Company gave comprehensive zoning the carte blanche that local governments have abused ever since. Mr. Arkes devotes less than a page to Euclid, although he admits it is an "enduring puzzle" to conservatives. The "puzzle dissolves," he assures us, once we understand Sutherland's "moral inclination" to uphold laws bearing an "obvious connection to the public health." Unfortunately, Euclid involved a challenge only to the concept of zoning and not to its application to a particular project. Some of us might wish that the Sutherland who had worried about categorical regulations in Adkins had written a less sweeping opinion.

Given the level of vituperation that is often directed at Sutherland and natural-rights theorists, Mr. Arkes's partisanship in this instance is understandable. The significant thing is that he has written an important book, one that challenges us to view constitutional rights afresh through the powerful lens of natural law.