Justice Sutherland and Originalism
One common assumption in the debate over originalism is that the theory did not exist until the 1970s. There were originalist-sounding things in various opinions before that, the story goes, but there was no coherent explanation of that approach until Robert Bork and others got the ball rolling in reaction to the Warren Court. If you look, though, at the dissenting opinions of Justice George Sutherland, one of the “Four Horseman,” you can find an excellent description of originalism. Let’s look at two examples:
First, in Home Building & Loan Ass’n v. Blaisdell, Justice Sutherland dissented from the Court’s explicit repudiation of the Contract Clauses’s original understanding in an opinion that Brandeis called one of the greatest ever (though he voted the other way). Sutherland stated that a constitutional provision “does not mean one thing at one time and an entirely different thing at another time. If the contract impairment clause, when framed and adopted, meant that the terms of a contract for the payment of money could not be altered in invitum by a state statute enacted for the relief of hardly pressed debtors to the end and with the effect of postponing payment or enforcement during and because of an economic or financial emergency, it is but to state the obvious to say that it means the same now.” He added that the “aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it. The necessities which gave rise to the provision, the controversies which preceded, as well as the conflicts of opinion which were settled by its adoption, are matters to be considered to enable us to arrive at a correct result. The history of the times, the state of things existing when the provision was framed and adopted, should be looked to in order to ascertain the mischief and the remedy. As nearly as possible, we should place ourselves in the condition of those who framed and adopted it. And if the meaning be at all doubtful, the doubt should be resolved, wherever reasonably possible to do so, in a way to forward the evident purpose with which the provision was adopted.” (I’ve taken out the case citations in this passage.)
In West Coast Hotel Co. v. Parrish, the case that started the Court’s switch-in-time in the midst of the Court-packing crisis, Sutherland dissented and argued that “we frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of living words that apply to every new condition which they include, the statement is quite true. But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written — that is, that they do not apply to a situation now to which they would have applied then — is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”
Why then is Justice Sutherland not held up as a model for originalists? My best guess is that it’s because the results that he argued for in these cases are unpopular. Granted, you can avoid this problem by saying that his method was right but his reasoning was wrong. Except in Blaisdell that argument is hard to make because, from an originalist point of view, he was right.