Vol. 5 No. 3 (March, 1995) pp. 83-85

THE RETURN OF GEORGE SUTHERLAND: RESTORING A JURISPRUDENCE OF NATURAL RIGHTS by Hadley Arkes. Princeton: Princeton University Press, 1994. 297pp. Cloth $29.95.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.

This is a cultivated and remarkably subtle defense of an ambitious, even stunning thesis: Justice Sutherland's jurisprudence ought to be understood, by liberals and conservatives alike, as the foundation of contemporary substantive rights jurisprudence, be it about property or civil rights.

Professor Arkes's thesis builds out from the claim that Sutherland's jurisprudence is a victim of bad constitutional history, constitutional commentary, and politics -- all of which have caused Arkes's Sutherland to be misunderstood, and thus wrongly disdained or ignored by those on the left and on the right. To correct for this failure Arkes positions his Sutherland not only as the paradigm of the natural law jurist of substantive rights, but also, and even more audaciously, as the jurist all depend upon yet fail to recognize as their own (37). In short, Arkes uses Sutherland to suggest that natural law is deeply embedded in the political culture and the Constitution, and how it is that Sutherland is the single best source of a "coherent moral account" of natural law for future renditions of constitutional rights and powers.

The basic political theory that governs Sutherland's jurisprudence and Arkes's treatment of it is that the Constitution has its "proper moral ground" in a universalistic conception of human nature that treats persons as "moral agents, with the capacity to give and understand reasons over matters of right and wrong"(9). (This much will be familiar to readers of BEYOND THE CONSTITUTION, 1990). Consequently, the primary moral imperative of a coherent jurisprudence is to follow a "purely jural" (79) path that distinguishes non-contingent rights from wrongs.

(If I may be permitted an aside: readers, even skeptical ones, of texts like Segal and Spaeth's THE SUPREME COURT AND THE ATTITUDINAL MODEL may be detained by the expression"purely jural" as a descriptor of legal reasoning, but they should persist.)

Arkes's arguments for the superiority of this "purely jural" path of the law are designed: 1) to redress the mistaken readings of history, commentary, and politics that have reduced Sutherland's opinions to a mere defense of property or laissez-faire economics (73); 2) to explain how and why Sutherland's opinions exemplify "an understanding of a good that is truly categorical and necessary" by their adjudication of "the difference between propositions that are merely contingent and problematic and propositions that have the force of logical necessity" (79-80, 249); and 3) to demonstrate why Sutherland's logic of natural rights is more internally consistent and coherent than the sociological jurisprudence, legal realism, and positivism of the likes of Brandies, Cardozo, Hughes, and Black. (To those ends the text is interspersed with informative analogies between Sutherland's and contemporary jurisprudence in regard to the things like the

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takings of property, independent counsel, foreign policy issues, abortion, and free speech.)

Regarding the first point, it is widely acknowledged that Sutherland's constitutional opinions evidence a staunch defense of civil liberties as well as property rights, and that they consistently seek (moral) criteria that bind rights and liberties with legitimate (reasonable) police power restraints. In regard to property rights, Arkes uses ADKINS V. CHILDREN'S HOSPITAL (1923) and the lesser read NEW STATE ICE CO. V. LIEBMANN (1932) for fleshing out the consistency and coherence of Sutherland's natural law philosophy about personhood and immutable principles of justice. That Sutherland's objections to New Deal legislation ought to be read as having their foundation in jural distinctions and not mere political and economic partisanship may not be persuasive to everyone, but all should appreciate the way Arkes reasons his way through his materials to make his point.

At the very least, this rendition of Sutherland's jurisprudence ably demonstrates Sutherland's craftsmanship, specifically in regard to the coherence of his interpretations of the Constitution based on the architectonic principle "that people retain a certain freedom to choose their own course, and it is only on the basis of that essential freedom that we may be justified in holding people responsible for their acts" (74). Perhaps the most important and interesting move that Arkes makes at this level is the intimate nexus he constructs between this principle, as a categorical natural law good, and a reading of the Commerce clause.

Using CARTER COAL (1936) as the focal point, Arkes explains how Sutherland's opinions in Commerce clause cases, and on issues of the delegation of authority (which Arkes believes is not a dead letter), arise out of a profound concern with the moral and jural consequences of the diminution of the rule of law and the principle of limited government embedded in the Constitution. The aspect of this explanation that captured my attention is the issue of "grand jural significance" (129) that Arkes locates in these cases. As I understand it, we are to see Sutherland as having appreciated (in a somewhat under-developed way) that the Commerce clause, as a formula for the extent and limits of Federal power (and therefore the Constitution as a text), ought to be read in terms of common/natural law distinctions. These distinctions have their origin in jural principles of personal freedom and relations between persons (concerning both property and civil liberties) and in morally legitimate STATE police power restraints. Thus, concerns about persons and STATE power must structure, and not merely be the result of, interpretations of the Commerce clause. For example, the nature and extent of the regulatory power of Congress ought to be understood in terms of a delegation of original State authority over local commerce, constrained by natural/common law and the laws of the States, and extended to Congress to construct a national "political economy" of private ownership (123, 131) subject to the self-same constraints.

I, for one, found it hard to avoid the implication of this view, so remarkably set out via references to the jurisprudence of John Marshall and the child-labor law case,

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HAMMER V. DAGENHART (1918), that the dominant legal realistic or positivistic economic or policy considerations that are used today to set the extent and limits of Congressional power actually ''mute" or "conceal" (132) the putatively requisite "rigorously moral arguments" about the propriety of transactions between states that the Commerce clause requires. And, if this benighted legal realist is any indication, many more readers than the author expects will also find a Sutherland who has a coherent and consistent position when it comes to the Commerce clause and limits on Federal power.

Perhaps I found Arkes's Sutherland persuasive in part because Arkes acknowledges that the paradigmatic moral judgments he endorses, and Sutherland articulates, are not formulaic ones. In a number of different, and carefully scripted ways, Arkes makes clear the logical necessity and the virtues of prudential considerations, along with judicial restraint, as important, albeit supplementary, elements in the matrix of natural-law axioms that go into constitutional interpretation (157,194,230). This is as good a point as any to interject that it would be a mistake for readers to stay away from this book because they already think they know what to make of Sutherland and/or Arkes on natural law and judicial restraint. Moreover, if readers suspend their own predilections, and read this book on its own terms, they will find that it indeed compels a reader to raise stubborn questions about exactly how, if not whether, to rejoinder those assertions.

Apropos of that last remark, Arkes himself is alive to a problem with Sutherland's natural-law jurisprudence. After all, how to square Sutherland, the guardian of limits on legislative authority, and the author of HUMPHREY'S EXECUTOR (1935, limiting Presidential removal power over executive appointments), with the Sutherland who is the author of CURTIS-WRIGHT EXPORTING CORPORATION (1936, legitimizing delegated authority to the President to prohibit shipments of arms to countries at war in the Chaco region of South America) and who vests in the President foreign policy powers extending well beyond the Constitution and specific legislative enactments?

The answer Arkes gives to this question is worthy of special praise. He has to fill in some gaps in Sutherland's explicit statements, and to do so he weaves together an intricate analysis, noteworthy for its lucidity and depth. This analysis includes Chief Justice Taft's decision in the MYERS Case (1926, legitimizing enormous removal power to the President), the opinions of Chief Justice Rehnquist and Justice Scalia in the independent counsel case of MORRISON V. OLSON (1988), and a set of related cases and incidents related to foreign policy and diplomatic issues (along with HUMPHREY'S EXECUTOR and CURTIS-WRIGHT). The results of this analysis is the conclusion that the "purely jural" path of the law sometimes goes beyond the Constitution, lawful delegation of authority, and moral propositions (about takings of private property in particular).

The constraints of space lead me to caricature Arkes's justification for this

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conclusion as follows. Natural law propositions are universalistic ones, but sometimes prudence requires, as in the case of the exigencies of foreign policy, recognition of the fact that interpreting the Constitution must be "governed by interests and rules outside the Constitution" (224). Such exigencies require an exercise of (Lockean) executive prerogative that may not always satisfy the general principles of lawful propositions, yet jural legitimization of prerogative may be essential, and unavoidable, to preserve the polity, the greater good, and the character of constitutional government.

This answer does not get Sutherland altogether off the hook for his failure to apply the same rigorous moral reasoning in executive politics that he did in legislative politics. Arkes argues that Sutherland should, and could, have done a better job with the CURTISS-WRIGHT opinion. Nevertheless, Arkes assures us, Sutherland has made a "mistake of refined reasoning" but no "GRAND mistakes" (235, author's italics). That is, the locus of Sutherland's deserved reputation ought to be where he brought natural law and textual principles together, and even if CURTISS-WRIGHT did not fully justify those principles they are sufficiently honored, in a broad sense, by an appropriately justified conception of judicial restraint.

Whether the specifics of this defense of Sutherland are persuasive or not I leave to readers. What I want to address is one implication of Arkes's defense for the more basic issue of the internal consistency and coherence of jurisprudential arguments. As I understand it, Arkes wants us to be persuaded by Sutherland's natural-law jurisprudence on the New Deal and foreign policy because, at bottom, it teaches the lesson of his BEYOND THE CONSTITUTION -- the good of the textual Constitution is not always the same as the public good that lies outside it. Building on Locke's defense of executive prerogative, Arkes emphasizes that prudence that goes beyond the reach of the imperatives of law is legitimate only if it has "a design that is immediately intelligible..., and... well within bounds of equity that [are] readily grasped by the public" because it is rooted in an understanding of a good that is real, natural, and anchored in the world" (240-241).

Arkes says that this defense does not imply either historicism or relativism; no, this jurisprudence is constrained by natural law categorical imperatives and the logical properties of the Constitution. In my own words, Locke guides us by explaining how going beyond a specific rule is fully justified when following a rule undermines some greater good that the rules in general are meant to defend. If I have not mis-stated here, I think that there are alternative readings of Locke that put this explanation on a slippery slope, and therefore, at least potentially, undermine confidence in the axiomatic character of natural law principles and the political economy they are supposed to preserve. But I can mention this only in passing because I want to say that there is a profoundly more important lesson in this explanation, quite independent (if the author will forgive me) of the advocacy of natural-law and judicial restraint.

I do not mean here to ignore the strengths of Arkes' natural-law lessons per se;

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rather I go beyond his text, and the substance of his positions, to bring to the forefront a more general lesson I see taught about how a prudent jurisprudence requires some meld of principles and contingent or consequentialist considerations. THE RETURN OF GEORGE SUTHERLAND teaches that for this meld to be jurisprudential it must follow the path of explicit principles of legal reasoning and not substitute the willy-nilly rationalizations of a results orientation or abstractions detached from " a life governed by moral understanding [that] finds its expression in goods that have a real embodiment, or a noticeable presence, in our lives" (12).

In the concluding pages, Arkes leans on Cicero's rhetoric to emphasize that in the attempt to be jurisprudential "there are layers, then, beyond layers: [there is] skepticism about rules unvarying from case to case; but beyond that skepticism [is] an awareness of hierarchies of goods, which may nevertheless guide the hand of prudence" (291). By saying this, Arkes presents Sutherland as teaching the lesson that the craft of jurisprudence, and commentary I will add, must take seriously the "intractable tension between categorical imperatives and the claims of prudence" (290). If I have not done an injustice to the book in drawing this lesson from it then I would amend Arkes's claim that Sutherland has something to teach those on both the right and the left. An equally important message is that Arkes -- in defense of, and sometimes arguing with Sutherland -- teaches lessons from which we can all learn.



Arkes, Hadley. 1990. BEYOND THE CONSTITUTION. Princeton: Princeton University Press.

CARTER V. CARTER COAL 298 U.S. 238 (1936)


HAMMER V. DAGENHART 247 U.S. 251 (1918)

HUMPHREY'S EXECUTOR V. U.S. 295 U.S. 602 (1935)

MORRISON V. OLSON 487 U.S. 654 (1988)

MYERS V. U.S. 272 U.S. 52 (1926)

NEW STATE ICE CO. V. LIEBMANN 285 U.S. 262 (1932)

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

Copyright 1995