Justice Sutherland and Originalism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Dan Cole says:


    Another reason Justice Sutherland might not be put forward as a model for modern originalists is his majority opinion in the famous Ambler Reality case, in which the Supreme Court upheld the constitutionality of comprehensive zoning. Here is a key section from his opinion in that case: “Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even a half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of the constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”


  2. Joe Miller says:

    Has a Jack Balkin / Larry Solum flavor. Or perhaps they have a Justice Sutherland flavor …

  3. rjp225 says:

    Great post. One sentence that tripped me up, though, was this: “[I]n 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).” Brandeis thought Sutherland’s opinion was one of the greatest ever, or Brandeis thought the Court’s opinion (from which Sutherland dissented) one of the greatest ever”? [I may be the only one who doesn’t follow, in which case I apologize.]

  4. Gerard Magliocca says:

    Brandeis voted with the majority. Sorry if that was unclear.

  5. wb says:

    I’m quite dubious of the premise that Justice Sutherland is neglected by originalists. Originalists regularly list Blaisdell as one of the worst offenders of anti-originalist decisionmaking by the Court, and endorse Justice Sutherland’s dissent by implication if not more explicitly. Actually, I’m not aware of a well-accepted narrative among originalist scholars that originalism was invented by Robert Bork. The Office of Legal Policy’s Original Meaning Jurisprudence: A Sourcebook, tells a different tale.

    Anyway, as for Justice Sutherland himself, he was something of a fair-weather originalist even so. Some of the very reasons he is featured so avidly in Hadley Arkes’s The Return of George Sutherland are reasons that modern originalists are rightly hesitant to wholeheartedly embrace him.

  6. Logan Roise says:

    Most originalists are fair-weather originalists.

  7. Andrew Carlon says:

    Why stop at Sutherland and the 30s? Originalism has an even earlier provenance:

    “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.”

    Scott v. Sandford, 60 U.S. (19 How.) 393, 406 (1857). As with later originalist inquiries, Chief Justice Taney relies on contemporaneous practice and usage, as well as the laws of the thirteen colonies at the time of the founding (cf. Heller), in determining that

    the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

    Justice Taney’s methodology seems to be an “original intent” originalism, emphasizing the intent of the founders, rather than an “original meaning” originalism–though he also denies that there is a difference in this case, noting that the founders

    perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them.

    Which is not to say that originalist methodology compels the result in Dred Scott–or that a “living constitution” approach would compel the opposite. As Mark Graber writes, both “historicist” and “aspirational” approaches to constitutional interpretation could be used to support both the outcome of Dred Scott and its opposite. But there’s no denying that Tawny employs an argument that is recognizably “originalist.”

    Could the reason that Chief Justice Taney is not held up as a model for originalists because the result that argued for is unpopular? I’d be willing to wager so.