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The Return of George Sutherland, by Hadley Arkes
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In this book, Hadley Arkes seeks to restore, for a new generation, the jurisprudence of the late Justice of the Supreme Court George Sutherland--a jurisprudence anchored in the understanding of natural rights. The doctrine of natural rights has become controversial in our own time, while Sutherland has been widely maligned and screened from our historical memory. He is remembered today as one of the "four horsemen" who resisted Roosevelt and the New Deal; but we have forgotten his leadership in the cause of voting rights for women. Both liberal and conservative jurists now deride Sutherland, yet both groups continue to draw upon his writings. Liberals look to Sutherland for a jurisprudence that protects "privacy" against the rule of majorities, as in matters concerning abortion or gay rights. Conservatives will appeal to his defense of freedom in the economy.
However, both liberals and conservatives deny the premises of natural rights that provided the ground, and coherence, of Sutherland's teaching. Arkes contends that Sutherland can supply what is missing in both conservative and liberal jurisprudence. He argues that if a new generation can look again, with unclouded eyes, at the writings of Sutherland, both liberals and conservatives can be led back to the moral ground of their jurisprudence. This compelling intellectual biography introduces readers to an urbane man, and a steely judge, who has been made a stranger to them.
- Sales Rank: #2142643 in Books
- Brand: Brand: Princeton University Press
- Published on: 1997-04-02
- Released on: 1997-04-22
- Original language: English
- Number of items: 1
- Dimensions: 9.00" h x .78" w x 6.00" l, .97 pounds
- Binding: Paperback
- 312 pages
- Used Book in Good Condition
From Scientific American
Clearly and cogently and even dramatically done.... Hadley Arkes leads us into the deepest jungles of constitutional thought.... His is a stimulating safari.
From The New Yorker
Arkes's work is a welcome addition to this emerging body of constitutional thought. If given the attention it deserves, it may well fulfill both objectives embodied in its title.
Review
"Advocating that the Supreme Court again espouse natural- rightsjurisprudence is an ambitious undertaking, as is attempting to rehabilitate the Supreme Court justice who, for many, personifies the ideas behind substantive due process. Hadley Arkes accomplishes both tasks with rhetorical skill and intellectual tenacity.... An important book ... that challenges us to view constitutional rights afresh through the powerful lens of natural law."--Steven J. Eagle, The Wall Street Journal
"Clearly and cogently and even dramatically done.... Hadley Arkes leads us into the deepest jungles of constitutional thought.... His is a stimulating safari."--Louis Auchincloss, The New Criterion
"Arkes's work is a welcome addition to this emerging body of constitutional thought. If given the attention it deserves, it may well fulfill both objectives embodied in its title."--Judge Alex Kozinski, National Review
Most helpful customer reviews
34 of 34 people found the following review helpful.
A near-masterpiece of revisionist constitutional history
By A Customer
Despite the fact that constitutional historians rank George Sutherland among the 'near-greats" of the Supreme Court, the first-and only -Supreme Court Justice from Utah has been largely forgotten. If he is remembered at all, he it is only as the most able of that notorious reactionary quartet, the "Four Horsemen"-Sutherland, Van Devanter, Butler, and McReynolds- who stuggled in vain to overturn The New Deal.This is a pity, and not only because to be remembered as the most able of the Four Horsemen is akin to being remembered as the most able Italian General of World War Two. Sutherland was no blind reactionary ( And, to be fair, neither was the technically brilliant, but inarticulate Van Devanter), but a creative, often insightful jurist, whose contributions to legal theory still affect our lives today. Almost all of Modern zoning law, for example, comes from his decision in Euclid vs.Ambler, while His eloquent opinion in Powell vs.Alabama ( the 'Scottsboro Boys'case)helped to blaze the trail for the modern understanding of fair trials. Also, his opinions in U.S. vs. Curtis-Wright amnd Humphreys executor contributed much to our understanding of the scope and limits of Presidential power. If Arkes' book were merely an reminder of George Sutherlands many contributions to Constitutional law, it would be welcome. However, it is more than that, much more. The only previous scholarly study of Sutherland and his career, Douglas Paschal's A Man Versus the State, while largely sympathetic, had cast the Justice as an a disciple of Herbert Spencer and John Stuart Mill-a libertarian Social Darwinist. It is both the genius and the flaw of Hadley Arkes'brilliant, stimulating book to argue instead that Sutherland stood firmly in the tradition of Natural rights and natural Law, a tradition which , while it might be widely misunderstood ( witness, for example, the splenetic, nearly illiterate assaults on Clarence Thomas), still has an important part to play in constitutional thought. Arlkes book argues for this understanding, and for the continuing importance of Sutherland's thought, with clarity, wit and learning.It is a very fine book. Why, then do I call it only a 'near-masterpiece' and speak of it as 'flawed'.Two reasons. First, Arkes, for all his intelligence, has an excessively mechanical, rationalistic and eighteenth century view of the Natural Law.This reader prefers a more Thomistic-and, dare I say it, somewhat more liberal- approach, in which charity plays as imporatant a role as reason.Secondly, for all the insight the book offers into Sutherlands thought, it also tends to platy down some of the more unpleasant aspects ohf his jurisprudence. Why, for instance, did this champion of natural rights join Holmes in that justices worst decision, Buck vs.Bell? Is it not possible, that, for all the influence of Burlamaqui,Herbert Spencers social Darwinism also played arole in Sutherlands thought? To conclude this review on a somewhat more positive note, I will say that it is one of the most intelligent and stimulating studies of asupreme Court justice, and of the American Constitution , to appear in recent years. One can only hope that it will be followed by studies ,in the same vein , of other Justices committed to the Natural Law, such as Story, the first Harlan, and Murphy.One also hopes that the energetic Professor Arkes will edit a collection of Sutrtherlands opinions, papers, and correspondence. It might provide furthur insight into this very able 'forgotten ' justice.
4 of 4 people found the following review helpful.
Arkes on Natural Rights
By Samuel J. Sharp
In the Return of George Sutherland, Professor Arkes argues for Sutherland's place in the catalog of great Supreme Court justices. Arkes portrays a judge misunderstand by scholars of today. Rather than impose a rigid economic worldview to the cases before him, Sutherland in fact applied a consistent search for moral truths, most of which preexisted, and are thus not found in, the Constitution. In this willingness to look beyond the text for answers to pressing legal questions, Sutherland actually, in a strange jurisprudential twist, is the father of modern liberal interpretation of the Constitution.
Much of the book is devoted to Arkes rearguing the cases of years past using Sutherland, sometimes, as a guide. In fact, Sutherland disappears from long stretches of the text which is unfortunate. This is not a traditional biography. As Arkes states in the Preface, "My purpose in this book is not to write a chronicle of the life of George Sutherland but to give an account of him in the part of his life that marks the central work . . . the task of this book is to understand his reasoning and give account of his jurisprudence." Arkes does this well, but the book ultimately is a fuller account of Arkes's view of natural rights than Sutherland's.
0 of 0 people found the following review helpful.
Five Stars
By Harold J. Decker
Great biography of an under-appreciated jurist.
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