« Seth Barrett Tillman: Originalism & the Scope of the Constitution's Disqualification Clause
Michael Ramsey
| Main | Eugene Volokh on the Perry Indictment
Michael Ramsey
»

08/22/2014

John McGinnis on Justice Sutherland's Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Justice Sutherland's Uncertain Trumpet.  From the conclusion:

Sadly, the hero of my youth has become for my middle age another figure with feet of clay. His dissent in Blaisdell shows he had it in him to be a fine originalist. Why in these other important cases has he so failed this jurisprudential test? One explanation is the usual one. Sutherland was results oriented. He was an internationalist and Curtiss-Wright’s location of foreign affairs authority in the President facilitated internationalism at the time.  He had served as a Senator and Burroughs’ ratification of election regulation advanced confirmed power in the national government.

Another explanation may be that the rise of living constitutionalism in the Progressive Era affected conservative as well as liberal justices. Justices may be even more the prisoners of the jurisprudential theories of their time than of their political ideology. Perhaps that explanation should give us hope today, as originalism continues its comeback in the academy and in the courts.

Professor McGinnis generously cites this post in which I sharply criticize Sutherland's foreign affairs opinions.