October 26, 2022
George Sutherland’s public service endured a similar experience: attacks on the Constitution, representative government, and the independence of the Supreme Court on which he served. The boldest of these attacks came from President Franklin D. Roosevelt while Sutherland was serving on the court.
Roosevelt proposed that he be empowered by Congress to appoint several additional justices to the Supreme Court – a plan known as “court packing” – because the court had invalidated several of his New Deal programs after ruling that they were unconstitutional. In the wake of the current Supreme Court’s movement toward a more conservative direction, many liberal and progressive advocates have similarly proposed schemes to “pack the court.”
Sutherland’s opposition to Roosevelt’s plan was publicly known. Ultimately, a passionate fight against court packing proved unnecessary when the proposal was handily defeated by its broad unpopularity. However, the court packing proposal was not Sutherland’s first fight to protect the institutions of American democracy against radical change.
Sutherland’s public service in Congress, as a representative and as a senator, occurred during a time known as the Progressive Era. During this time there was intense public and political pressure to reform public policy and institutions of government in a liberal direction. Sutherland supported some of these reforms, such as ensuring women’s right to vote via constitutional amendment – an ultimately successful cause in which he played an important role.
However, when constitutions for newly proposed states Arizona and New Mexico came before the U.S. Senate for approval, Sutherland saw reasons for concern. He opposed some of the new progressive policies being proposed in these states, such as the use of a ballot initiative to amend state constitutions and recall elections for judges. In July 1911, Sutherland would give a lengthy speech to his Senate colleagues defending the institutions of American democracy, including constitutions, representative government and an independent judiciary. In the words of one Sutherland biographer, this speech would “give him a national reputation.”
Defending the Constitution
Legislative acts should be capable of being readily changed to suit the sometimes rapidly changing needs of the community, but constitutions are, or should be, declarations of the permanent, settled, broadly fundamental policies of the State, not to be lightly altered upon the mere caprice of the moment, but only after the most serious and deliberate consideration.
He then followed the logic of this argument to its reasonable conclusion – constitutions should not be easy to amend:
If the Constitution of the United States had provided for its own amendment as easily as some few of the State constitutions provide, that great instrument would long since have become a medley of incongruous provisions and a patchwork of the shifting foibles of every generation. A written constitution means nothing unless it means stability and permanency. It is the fundamental law, the foundation upon which rests the whole superstructure of the State; and, like the foundation of a great building, the continual tearing out of a stone here and the insertion of another there will threaten the integrity of the whole structure. To call a constitution which may change with every shifting breath of popular emotion “fundamental law” is a perversion of language. Such a constitution is not to the likened to the foundation of an edifice, but rather to the weathercock upon the steeple, that simply registers the direction of each passing breeze.
Sutherland then laid out his view that the U.S. Constitution was intended to protect against oppressive actions supported by a popular majority, which would be a bedrock of not only his actions as a senator, but also of many of his opinions as a Supreme Court justice:
Constitutions are made not only for the purpose of confining the representative agents of the people within definite boundaries, but also for the purpose of preventing hasty, ill-considered, and unjust action on the part of the majority of the people themselves. The written constitution is the shelter and the bulwark of what might otherwise be a helpless minority. Tyranny is no less hateful in the hands of the people than in the hands of the despot, and the oppression of the minority by the majority is tyranny no less than is the arbitrary oppression of the king. The forward march of democracy will be of little avail if in the end it rescue us from the absolutism of the king only to hand us over to the absolutism of the majority.
Defending representative government
Because of the concern that a popular majority could unjustly oppress a minority just as a tyrannical king could, Sutherland said, the U.S. Constitution established a system of representative government that would, over time, reflect the popular will while being buffered against the temporary passions of the majority:
And so we provide that the government shall be administered by representatives who are to act not for a part of the people, but for all, thereby, in a sense, expressing our distrust in the hastily formed opinions of the temporary majority, but declaring our lasting confidence in the wisdom and the justice of the persistent majority.
Sutherland’s concern about the “hastily informed opinions of the temporary majority” and how they might be used to undermine the institutions of American democracy was grounded in a realism about the failures of human nature expressed in politics. In an argument still applicable today to the many politicians and advocates whose actions and extremism undermine institutions, Sutherland said:
There are quacks in politics … the quack is usually identified by the superabundance of the laudation with which he advertises himself and his remedies. … Between the political quack, who thinks only of himself, and the political zealot, who does not think at all, we are in grave danger of having all the stability and sanity ground out of our institutions.
At the same time, Sutherland recognized and supported efforts to positively reform the American institution of representative government. However, he sought to protect representative government against those who couldn’t recognize the difference between a bad form of government and imperfect people who administer government badly:
I am not opposing any honest effort to eradicate the evils which exist under [representative] government. There is a vital distinction, however, between a bad plan of government and the imperfect operation of a good plan. If legislation by representative bodies is sometimes unsatisfactory, inadequate, or corrupt, it is not because the plan of representative government is at fault, but because, although inherently good, it is badly administered.
With those who saw American representative government as inherently malicious or bad, Sutherland simply and plainly disagreed:
I am not one of those who have become impatient at the restraints and checks and safeguards of the representative form of government and the written Constitution. … I disagree utterly … that the Constitution of the United States … was all wrong; that it was not sufficiently democratic; that it was so drawn by Madison and those who were in the Constitutional Convention as to vest unfair power in the hands of the minority, and that this principle shows from one end of it to the other.
Defending an independent judiciary
Arguing against the recall of judges at the ballot box due to its impact on the independence of the judiciary, Sutherland first noted the differences between those in the judiciary and those in the elected branches of government:
The judge represents no constituents, speaks for no policy save the public policy of the law. … He has no master but the compelling force of his own conscience. Every circumstance which diminishes his independence and his courage, which closes his ears to the righteousness of the cause and opens them to the voice of clamor, makes for injustice.
He turned to the eloquence of America’s most renowned Supreme Court chief justice to point out why judicial independence was so essential to a well-functioning judicial institution:
I would print in letters of living light the strong words of Chief Justice [John] Marshall: The judicial department comes home, in its effects, to every man’s fireside; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent[?]
Sutherland’s gravest concern about recall elections for judges was a scenario in which they were extended to the U.S. Supreme Court:
I declare my solemn conviction that the moment a provision for the recall of Justices of the Supreme Court shall be written into the Federal Constitution, that moment will mark the beginning of the downfall of the Republic and the destruction of the free institutions of the American people.
In the end, Sutherland’s opposition to dramatic progressive reforms to the institutions of American democracy was grounded – just like his support for women’s right to vote – in the observable facts and realities of life experience. He concluded his 1911 Senate speech arguing as much:
I look with grave apprehension upon the present-day tendency to overturn, uproot, and destroy these vital and fundamental principles of representative government under which we have made and are making the most wonderful moral, social, and material advancement mankind has ever beheld.
As we hear calls from extremes on either side of the spectrum for radical changes to the language and/or operation of the U.S. Constitution, Sutherland’s argument is as applicable in 2022 as it was in 1911. American democracy – an intentional combination of democratic and non-democratic government institutions designed to separate and disperse the powers of government such that they check and balance each other – remains the best form of governance in the world based on the moral, social and material circumstances of our lives.
George Sutherland saw that reality more than a century ago. We might do well to remember it today.
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