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Mike Rappaport


Justice Sutherland and Originalism
Michael Ramsey

Mike Rappaport’s post on Professor Stephen Siegel’s anti-originalist article inspires a further comment.  Siegel makes much of the fact that Justice George Sutherland got his originalism wrong in considering defendants’ waivers of jury trials, from which he draws the broader conclusion that originalism cannot escape “motivated reasoning” -- who can hope to, I guess he means, if Justice Sutherland couldn't? 

I don’t doubt that Sutherland used "motivated reasoning" in that case, but as Professor Rappaport says Sutherland was hardly an exemplar originalist.  Indeed, I would go futher.  I mean no disrespect to Prof. Siegel, who I’m sure is otherwise an outstanding scholar – but Siegel’s claim that Sutherland “believed that the sole goal of constitutional interpretation is to discern and effectuate the Constitution’s original meaning” is preposterous. 

Consider two of Sutherland’s best-known opinions: 

In United States v. Belmont (1937), Sutherland held for the first time that executive agreements (international agreements undertaken on the sole authority of the President) are constitutional and preempt inconsistent state law to the same extent treaties do.  Almost his entire discussion rested on the unsupported claim that: 

while this rule [supremacy over state law] in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states. 

But of course the whole point of establishing treaty supremacy in Article VI was that otherwise treaties would not preempt state law (as most people thought they did not under the Articles of Confederation).  And in any event the question in Belmont wasn’t whether the national government as a whole could preempt the states, but whether the President alone could.  The founding generation was comfortable with treaty supremacy because under Article II, Section 2 treaties would be approved by two-thirds of the Senate (whose members were, at the time, appointed by the state legislatures under Article I, Section 3).  The idea that the same preemptive effect could be achieved by an independent act of the President is a radically different proposition with no support in founding era materials (and no court even remotely close to the founding era held an executive agreement to preempt state law).  (Details are in my article at 77 North Carolina L. Rev. 133). 

It may be possible to make an originalist case for the specific outcome in Belmont, based on the President’s power to receive ambassadors, as the case involved Roosevelt’s recognition of the USSR.  Ultimately I find that unpersuasive as well, but the key point here is that Sutherland did not make the effort.  Instead, he linked the executive agreement power to his entirely nontextual, nonoriginalist and indeed extra-constitutional idea that the President has complete control over foreign affairs – the idea he set out in his more famous (or infamous) opinion in United States v. Curtiss-Wright Export Co. (1936). 

Curtiss-Wright makes two core claims.  First, foreign affairs power vests in the national government not by operation of the Constitution, but as an inherent aspect of sovereignty.  Second, within the national government, foreign affairs powers vest in the President because the presidency is the office best suited to exercise them.  The first of these points, as I detail in the article Mike Rappaport links, lacks basis in text and history.  Most obviously, it is flatly contrary to the Tenth Amendment (which says the national government has only delegated powers); it’s inconsistent with the numerous grants of foreign affairs power actually in the Constitution (war, treaties, ambassadors, etc.); and it’s inconsistent with the way the founding generation – notably in the Federalist essays– discussed foreign affairs powers, which they described as delegated powers.  Sutherland’s second point is even worse as an originalist matter – he makes no effort at all to link his conclusion to anything textual or historical, resting instead on the modern needs of U.S. foreign policy.

As Roger Alford shows is his outstanding essay in International Law in the U.S. Supreme Court, Sutherland’s ideas in Curtiss-Wright stemmed from contemporary rather than originalist concerns.  They rested on a series of articles and lectures Sutherland presented earlier as a U.S. Senator, much influenced by the U.S. experience in World War I.  Professor Alford explains:

Sutherland expanded on [his] thesis in December 1918 in a series of lectures at Columbia University.  Presenting what he described at the time as “an entirely new theory of the Constitution” that reflect[ed] the role of the United States as a world power, he argued that because “the United States has become a world power, the Constitution should be strictly interpreted at home, but most broadly interpreted in connection with world politics and policies.”  He explained the need for a new constitutional theory [quoting Sutherland]:

The time is fast approaching, if it be not already here, when we must be able to assert and maintain for the [U.S.] government the unimpaired powers of complete external sovereignty. … The complete powers of the governments of other nations must be matched by the complete powers of our own government … To be obliged to confess … that the government lacked sufficient authority, because of the absences of affirmative language in the Constitution, would be most humiliating and regrettable; and to find the power only after a microscopic search of that instrument, and a strained or doubtful interpretation of its words, would be almost as unfortunate….  We must cease to measure the authority of the general government only by what the Constitution affirmatively grants, and consider it also in light of what the Constitution permits from failure to deny.

Once on the Court, ex-Senator Sutherland then went out of his way to jam his “entirely new theory” into Supreme Court doctrine in Curtiss-Wright, a case that actually had nothing to do either with either unenumerated national power or independent executive power.  (The issue was the extent of Congress’ delegation to the President of the power to regulate international commerce in arms).  Reinforced by the growing European crisis at the time the decision was written, there can hardly be doubt that Sutherland’s overriding concerns in Curtiss-Wright were presentist rather than originalist.  And whatever one thinks of Sutherland and Curtiss-Wright on the merits, surely his determination to create a new constitutional theory to reflect the United States’ twentieth-century role as a world power refutes the idea that his overriding concern was originalism.