Monday, May 5, 2008

Olken on Justice Sutherland Reconsidered

Justice Sutherland Reconsidered is a new article by Samuel R. Olken, John Marshall Law School. It is forthcoming in the Vanderbilt Law Review (2009). Here's the abstract:
Long considered one of the Supreme Court's more conservative justices in matters of economic liberty, George Sutherland's reputation has suffered largely because of his vigorous opposition to the fabled revolution of the 1930s in which a bare majority of the justices began to adapt the Constitution to changing economic circumstances and departed from the jursiprudential premises of legal classicism and guardian judicial review. Neither laissez-faire economics, Social Darwinism nor natural rights wielded much influence upon his perspective. Rather, his skepticism about public regulation of private economic affairs emanated from his aversion toward political factions and his abiding commitment to the equal operation of the law. Sutherland adhered to guardian review in which judges used seemingly neutral principles of law, historical custom and precedent in assessing the constitutional limits of governmental authority to protect individual rights and liberties from the tyranny of democratic majorities manipulated by political factions. However, Sutherland often failed to perceive the practical effects of his decisions and the limits of his constitutional vision. His was essentially a negative view of the Constitution in terms of economic affairs; it restricted governmental authority to protect individual liberty. Yet this prevented him from appreciating the importance of adapting its provisions to changing economic circumstances. Nor did Sutherland recognize the growing obsolescence of his jursiprudence and its inability to resolve issues arising from conflicts between interest groups. In dissent, his jursiprudence appeared myopic and vulnerable to misconceptions about his judicial motivation. Consequently, Sutherland's more progressive views about criminal procedure and the business of expression have received much less attention than they deserve, overshadowed by his seemingly reactionary opinions concerning economic liberty. Indeed, the ultimate lesson of Sutherland's economic liberty jursiprudence is how strict adherence to the past can relegate even the most conscientious jurist to the dustbin of obsolescence.

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