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10/11/2012

G. Edward White: West Coast Hotel’s Place in American Constitutional History
Michael Ramsey

The Yale Law Journal Online has posted an essay by G. Edward White (University of Virginia Law School): West Coast Hotel's Place in American Constitutional History

David Bernstein comments: The Significance of West Coast Hotel v. Parrish: Originalism vs. Living Constitutionalism?  Professor Bernstein writes:

As I pointed out in Rehabilitating Lochner, the irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power.  Originalist sentiments expressed by proponents of liberty of contract sometimes sound quite modern.  Consider Justice Sutherland’s dissent in West Coast Hotel v. Parrish: “to say … 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.” I go on to note that more often, the early twentieth century version of originalism differed in significant ways from modern conservative originalism, and was generally neither well-theorized nor well-explained by its judicial adherents, but it was originalism nevertheless. Liberty of Contract’s Progressive opponents, by contrast, were explicitly anti-originalist and pioneered the idea of the “Living Constitution.”

Distinguished University of Virginia legal historian G. Edward White makes a related point in the latest issue of the Yale Law Journal Online. He argues that the majority opinion in West Coast Hotel represents the forces of Living Constitutionalism while the dissent relies on originalism: “West Coast Hotel is one of the early landmark cases of another narrative of twentieth- and twenty-first-century constitutional history, one characterized by a debate about whether the Constitution adapts to change or remains an embodiment of foundational principles. In that narrative, Chief Justice Hughes’s exploration of the changing context of judicial decisionmaking represents living Constitutionalism, and Justice Sutherland’s insistence that “the words of the Constitution mean today what they . . . mean[t] when written” is an example of originalism.

Two quick points:  (1)  As I've commented before, Justice Sutherland was far from a consistent originalist; true, he used originalist rhetoric when it suited him (as in West Coast Hotel), but elsewhere he expressly rejected originalism in favor of what we would now call a living Constitution approach, especially in foreign affairs.  (2) Just because Sutherland and others used originalist rhetoric to defend their positions in West Coast Hotel and other Lochner-era cases does not indicate that those positions had any actual basis in original meaning.  I'm not aware that Sutherland et al. made substantial or effective efforts to tie their views to the words or intent of the framers of the Fourteenth Amendment, other than by assertion.  Modern scholarship, e.g., by Nathan Chapman and Michael McConnell and by Ryan Williams, suggests that finding such a tie would be challenging.  Sutherland's embrace of originalism in West Coast Hotel indicates that originalism as a theory had some resonance in the wider legal community of the time (especially in the circles in which Sutherland moved), but I'm not sure it indicates much else.

UPDATE:  David Bernstein adds:

Re your post on [West Coast Hotel]:  Saying that Sutherland and other Justices were BAD originalists in the Due Process cases is different from saying they weren't originalists.  The literature of the time makes it clear that almost everyone thought that the "conservatives" were trying to effectuate the framers' intent, whereas the Progressives thought that the Constitution was a reactionary document that needed to either be replaced or change with the times.  Of course Sutherland et al. weren't the sort of originalists who looked closely at the original public meaning of the specific clauses--but then again, that theory of originalism didn't exist to my knowledge in the early 20th century. My point isn't that Sutherland, Peckham, et al., etc were "right" from any particular methodological view, but that if originalists want to be serious about history, they need to acknowledge that the pro-liberty of contract forces were on the O side of the broad originalism vs. Living Constitutionalism debate, and their Progressive opponents on the other side.  One can still argue that the Progressive were right in their results for the wrong reason.

Agreed.

A further interesting aspect (to me anyway) is that in the due process area the progressives generally didn't try to fight back on originalist grounds (which I think they could have done).  My guess is that there was a bigger picture for them -- they were anti-originalist in other areas, especially on enumerated powers, and so had no interest in building up originalist arguments anywhere, even where those arguments might have been useful to them.