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.
References:
ADKINS V. CHILDREN'S HOSPITAL 261 US 525 (1923)
Arkes, Hadley. 1990. BEYOND THE CONSTITUTION. Princeton:
Princeton University Press.
CARTER V. CARTER COAL 298 U.S. 238 (1936)
U.S. V. CURTIS-WRIGHT EXPORTING CORPORATION 299 U.S. 304 (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.