Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland\u27s economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public welfare and those for the benefit of certain groups illuminates this underlying tenet of Justice Sutherland\u27s jurisprudence. Professor Olken also examines Justice Sutherland\u27s work prior to his years on the Court, his strict construction of constitutional limitations, his view of the judiciary\u27s role in protecting individual rights, and his commitment to equal operation of the law. The ultimate irony in Justice Sutherland\u27s jurisprudence is that his strong aversion to factions and his failure to understand changing industrial and social conditions, in some instances, actually reinforced economic inequalities

The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Legacy of Justice George Sutherland

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and substantial relationship to public health, safety, morals, or welfare. Bringing Sutherland\u27s beliefs to the present, the authorfeels that constitutional issues raised by the recent must-carry controversy reflect many of the ambiguities raised by the Court in their handling of differential taxation of the press disputes during the 1980s and into the 1990s. The author believes similar questions about the relationship between economic liberty and freedom of expression are likely to recur in other contexts as the Court struggles to adapt traditional First Amendment analytical models to emerging forms of communications technology. From this perspective, the author argues that Sutherland\u27s recognition during the 1930s ofthe convergence ofeconomic liberty, politicalfactions, and expressive activity is highly relevant to modern constitutional inquiry. In the spirit of Sutherland\u27s views, the author proposes a new form of heightened scrutiny in cases involving differential treatment of the press that more precisely considers the economic and expressive interests at stake. Specifically, Olken argues that the Court should employ a nuanced version of heightened scrutiny that considers more explicitly the respective economic and expressive interests of the affected parties when the government regulates private entities engaged in the business of expressio

Justice Sutherland Reconsidered

In the annals of Supreme Court history, George Sutherland occupies a curious place. Associate Justice of the U.S. Supreme Court from 1921 to 1938, the Utah native has long been identified as one of the infamous Four Horsemen, known largely for his role as a judicial conservative instrumental in the Court\u27s invalidation of significant aspects of the New Deal. Yet Sutherland was also the author of several influential opinions involving matters as diverse as civil rights, freedom of expression, and others that recognized the broad authority of the federal government in the realm of foreign and military affairs. A proponent of limited government intervention into private economic activities, he also advocated the public interest in the exercise of reasonable controls of private land use. Moreover, Sutherland did not hesitate to support workers\u27 compensation and other exercises of governmental authority intended to promote the public welfare. Accordingly, Justice Sutherland might appear to the modern observer as somewhat of a judicial enigma, who, except for an occasional progressive lapse, more often than not, imbued his analysis reference in print to Sutherland and his fellow bloc of dissenters on the Hughes Court

The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court’s constitutional jurisprudence during the New Deal era. It focuses upon the Court’s jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court’s Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its eventual decline. The final Part analyzes the interplay between legal classicism and the evolution of New Deal constitutionalism

Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions, 6 Wm. & Mary Bill Rts. J. 1 (1997)

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland\u27s economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public welfare and those for the benefit of certain groups illuminates this underlying tenet of Justice Sutherland\u27s jurisprudence. Professor Olken also examines Justice Sutherland\u27s work prior to his years on the Court, his strict construction of constitutional limitations, his view of the judiciary\u27s role in protecting individual rights, and his commitment to equal operation of the law. The ultimate irony in Justice Sutherland\u27s jurisprudence is that his strong aversion to factions and his failure to understand changing industrial and social conditions, in some instances, actually reinforced economic inequalities

The Refracted Constitution: Classical Liberalism and the Lessons of History, 101 Iowa L. Rev. Online 97 (2016)

As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how modern constitutional law has deviated from what he considers the classical liberal origins of the Constitution. In contrast, Professor Hovenkamp is a historian whose extensive research about nineteenth-century property law informs his understanding of constitutional development. Less concerned with devising a unified theory of constitutional interpretation than with detecting the patterns of change, he offers a nuanced and historically detailed rebuttal of the notion of a classical liberal constitution. Interestingly, although Professor Hovenkamp is also an expert on antitrust law, he refrains from assessing the Constitution through the law and economics matrix, perhaps because the strength of his historical instincts outweighs the temptation to regard the Constitution from any singular theoretical viewpoint. Of the two perspectives, I find Professor Hovenkamp’s more persuasive, in large part because, notwithstanding Professor Epstein’s ambitious and intriguing thesis, both the limitations of constitutional theory in general and some specific historical problems raised by the classical liberal premise suggest its inherent flaws