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.

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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.