November 11, 2022
As we await the final outcomes of the 2022 midterm election, those who were elected are thinking about what they seek to accomplish in upcoming sessions of Congress. But the narrow majorities produced by the 2022 election (as well as the 2020 election) suggest that governing for the next two years – and possibly beyond – will demand a little more from lawmakers than when majorities are larger and governing mandates clearer.
A good example for conservative lawmakers to follow is George Sutherland. As a conservative, he successfully enacted legislation during the Progressive Era. Understanding why and how he accomplished this feat begins with understanding his perspective and conservative thinking.
Sutherland was suspicious of the idea of perfecting society. He found his support for his policy views in history and the realities of his era, noted the failures in human nature, and recognized the inherent good of religion and the inherent evil of criminal conduct for their effects on the soul.
This grounding gave Sutherland great clarity regarding the U.S. Constitution – one reason Sutherland gained a reputation as one of the foremost constitutional experts of his day. He prized ordered liberty and saw both the Constitution and the civic-mindedness of the American people as its great protectors. In his view, the Constitution established bright lines of federalism and was the most democratic instrument of American governance.
Because of the clarity and power of Sutherland’s views, much of his thinking remains relevant today.
The conservatism of Sutherland’s thinking is recognizable in various ways. He grounded his views in history and the realities of his day; he acknowledged the weaknesses of human nature; he was skeptical of the prospect of perfecting society; he embraced the idea of a human soul and the impact of moral choices upon it; and he cast a critical eye on emotion-based policymaking and the impulse to regulate.
Sutherland’s viewpoints found their grounding in reality – historical and contemporary. This conservative approach to political thought and public policy drove his thinking so much that it even permeated his support of positions deemed progressive.
As both an elected official and Supreme Court justice, Sutherland was a strong advocate for women’s right to vote. In a speech on the issue, Sutherland noted how his position was grounded in the past and present reality of living in a state (Utah) that had long embraced women’s suffrage. “I am a believer in the fundamental right of women to vote,” he said, “not as a matter of theory, or speculation, but as a matter of earnest conviction as a result of years of practical observation.” Similarly, a hallmark of Sutherland’s most consequential Supreme Court majority opinions was their deep recounting of the history of the constitutional or legal issue in question, with the ruling extending logically from that historical accounting. This same trait applied to his dissenting opinions.
Perhaps driven by his historical mindset and knowledge, Sutherland acknowledged the weaknesses and limitations inherent in human nature. As one example, Sutherland noted in a 1917 speech to the American Bar Association (ABA) – of which he was president – an inclination toward criticism of others while maintaining blind spots for similar traits in ourselves:
Human nature is so constituted that we freely tolerate in ourselves what we condemn in others, and we are prone to condemn traits of character in others simply because we do not find the same traits in ourselves. Very often the evil is in the eye of the beholder rather than in the thing beheld, for he is a man of rare good sense who can always distinguish between an evil thing and his own prejudices.
But despite a skepticism of human nature, Sutherland’s conservatism was optimistic rather than gloomy. In various instances he expressed his optimism for the progress and future of the United States. But his optimistic conservatism remained grounded – humbled, as it were – by the recognition that human beings were not and would not become perfect.
This skepticism of human perfection extended to society as a whole, leading Sutherland to question many policy reforms promising to completely solve society’s ills. Even if such reforms managed to solve one social problem, they would likely lead to new problems. In the 1917 ABA speech, he said:
Throughout all history, mankind has oscillated, like some huge pendulum, between these two, sometimes swinging too far in one direction and sometimes, in the rebound, too far in the opposite direction. Liberty has degenerated into anarchy and authority has ended in despotism, and this has been repeated so often that some students of history have reached the pessimistic conclusion that the whole process was but the aimless pursuit of the unattainable. I do not, myself, share that view. In all probability we shall never succeed in getting rid of all the bad things which afflict the social organism—and perhaps it would not be a desirable result if we should succeed, since out of the dead level of settled perfection there could not come that uplifting sense of moral regeneration which follows the successful fight against evil, and which is responsible for so much of human advancement. … It is, however, apparently one of the corollaries of progressive development that we get rid of old evils only to acquire new ones. We move out of the wilderness into the city and thereby escape the tooth and claw of savage nature, which we see clearly, only to incur the sometimes deadlier menace of the microbes of civilization, of whose existence we learn only after suffering the mischief they do.
But while Sutherland recognized the ongoing limitations of human nature and the implications of that fact for society, he also viewed the nature of human beings as more than what is seen in daily behaviors. He embraced the idea of a human soul and the ability of human choices to improve or weaken it.
Sutherland’s views on the human soul and the ability of our choices to improve it are implicit in a 1941 commencement speech at BYU, where he spoke of the impact of religious practice on “our own inward forces”:
I have always believed … in the power and goodness of God and in the efficacy of prayer. And by prayer I do not mean that empty recital of pious words which is a mere movement of the lips, signifying nothing. I mean the form of prayer which finds its source in the innermost self – whether it be a simple prayer expressing devotion to God and asking his guidance and aid in respect of our everyday affairs, the effect of which is to strengthen our own inward forces and bring comfort to our hearts.
And Sutherland’s view of the human soul became explicit when discussing in this same commencement address how criminal behavior harmed the soul:
There are consequences resulting from vicious or criminal conduct which in spite of reformation will too often persist. While reformation may bring security for the future, it does not eradicate the past. As a physical injury leaves its permanent mark on the body, vicious habits leave their scars upon the soul. A knife plunged into the living flesh may be pulled out; but who can pull out the wound? And even after the wound has been cleansed and closed and healed, a serious weakness may remain as a lasting plague to the body. Moreover, the abandonment of bad habits that have been often indulged is by no means easy. The will to do better may be so undermined and enfeebled as to leave the indulger with little power to exert it effectively.
Sutherland’s conservative approach (grounding thinking in history and the realities of his time) and ideas (imperfectability of human nature and society, the human soul) led to a policy perspective critical of the impulse to regulate human behavior – a common feature of the Progressive Era in which Sutherland lived – and enact laws motivated by emotion and good intentions rather than wisdom and good judgment. As he argued in his 1917 ABA address:
The trouble with much of our legislation is that the legislator has mistaken emotion for wisdom, impulse for knowledge, and good intention for sound judgment. ‘He means well’ may save the legislator from the afflictions of an accusing conscience, but it does not protect the community from the affliction of mischievous and meddlesome statutes. Progress is not a state of mind. It is a fact, or set of facts, capable of observation and analysis – a condition of affairs which may be cross-examined to ascertain whether it is what it intends to be. … There is an increasing disposition to give authoritarian direction to the course of personal behavior – an effort to mold the conduct of individuals irrespective of their differing views, habits and tastes, to the pattern which, for the time being, has received the approval of the majority. Under this process we are losing our sense of perspective. We have developed a mania for regulating people.
Ordered liberty and American democracy
Sutherland’s conservative outlook found perhaps its most potent expression in his views regarding ordered liberty and American democracy as embodied in the U.S. Constitution. Similar to much of Sutherland’s thinking on policy and legal issues, his views on liberty and democracy had their foundations in historical reflection:
From the foundation of civil society, two desires, in a measure conflicting with one another, have been at work striving for supremacy: First, the desire of the individual to control and regulate his own activities in such a way as to promote what he conceives to be his own good, and, second, the desire of society to curtail the activities of the individual in such a way as to promote what it conceives to be the common good. The operation of the first of these we call liberty, and that of the second we call authority.
The struggle between liberty and authority playing out in debates over political power and government policy reached a historical peak in the American Revolution, which shifted for the first time the source of political power from the rulers – the monarch, the parliament, or some oligarchical council – to the people being ruled. As Sutherland said in a series of Columbia University lectures that were eventually published as a book:
The American Revolution … proceeded upon the principle that sovereignty belongs to the people, and it is by their consent, either express or implied, that the governing agency acts in any particular way, or acts at all. This is animating principle of the Declaration of Independence. It is the very soul of the Constitution, which at once proclaims and bears witness to the fact that ultimate power resides only with the people. It has become the fashion in some circles to denounce the written Constitution as undemocratic, as an unwarranted restraint upon the freedom of the people to move forward; but in truth it is the most democratic thing we possess, for it is the one thing above all other things that makes articulate and clear the claim that all political power comes from the people. It is the one thing above all other things that makes the government which it establishes a servant of the people and prevents it from becoming their master; for it is the supreme law by which the people affirm their sovereignty and constitute their agents to exercise it to such extent, and in such form, as they decree. It speaks the language of paramount authority: “We, the people … do ordain and establish this Constitution for the United States of America.” … And so I repeat, for the sake of emphasis, that the Constitution is the most democratic of our possessions, democratic in every phrase and sentence, for in every phrase and sentence it speaks the will of the people, those who made it and ratified it in the beginning, those who have maintained it and added to it since, and those whose will it speaks today and whose will it must continue to speak until they, in the exercise of their sovereign authority, see fit to put something else in its place.
With political power in America being derived from the American people, and given that the historical product of the American Revolution was a nation founded in ideas of self-government, it stood to reason for Sutherland that one of the most valuable elements of American democracy was its protection of individual liberty that would preserve power and self-governance among the people:
The liberty of the individual to control his own conduct is the most precious possession of a democracy and interference with it is seldom justified except where necessary to protect the liberties or rights of other individuals or to safeguard society. If widely indulged, such interference will not only fail to bring about the good results intended to be produced but will gravely threaten the stability and further development of that sturdy individualism, to which is due more than any other thing our present advanced civilization.
What’s more, attempts by government in America to excessively restrict individual liberty would ultimately damage American democracy, in Sutherland’s view:
It must not be forgotten that democracy is, after all, but a form of government whose justification must be established in the same way that the justification of any other form of government is established; namely, by what it does rather than by what it claims to be. The errors of a democracy and the errors of an autocracy will be followed by similar consequences. A foolish law does not become a wise law because it is approved by a great many people. The successful enforcement of the law in a democracy must always rest primarily in the fact that on the whole it commends itself to a universal sense of justice, shared even by those who violate it. Any attempt, therefore, to curtail the liberties of the citizen which shocks the sense of personal independence of any considerable proportion of the community is likely to do more harm than good, not only because a strong feeling that a particular law is unjust lessens in some degree the reverence for law generally, but because such a law cannot be successfully enforced, and a law that inspires neither respect for its justice nor fear for its enforcement is about as utterly contemptible a thing as can be imagined.
Given the inherent connection between the success of American democracy and the protection of individual liberty, Sutherland saw the protection of individual liberty as helping to secure the common good. As he wrote in a 1923 Supreme Court opinion:
To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it, for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.
And yet, for Sutherland, protection of individual liberty must be achieved within the bounds of the social order that also protected the common good and American democracy. Vigilance among the American people to achieve and maintain this ordered liberty was Americans’ civic duty:
Individual liberty and the common good are not incompatible, but are entirely consistent with one another. Both are desirable and both may be had, but we must demand the substance of both and not accept the counterfeit of either. … Liberty and order are the two most precious things beneath the stars. The duty which rests upon us of this generation is the same that has rested upon all generations of the past – to be vigilant to see and resolute to repel every attempt, however insidious or indirect, to destroy liberty in the name of order, or order in the name of liberty, for the alternative of the one is despotism and of the other the mob.
For Sutherland, one of the main purposes of the Constitution was to secure in perpetuity the individual liberty that exists within the order of American democracy and self-governance. Sutherland acknowledged throughout his career that ordered liberty must be protected against self-interested political factions (including those within the government), the misguided passions of an electoral majority, and short-sighted politicians seeking to manipulate for their own sakes the prejudices to which human nature is so susceptible. As it was in Sutherland’s time, so it remains today.
The Constitution and the judiciary
During Sutherland’s time on the Supreme Court, the nation felt the influence of his views on the role of the judiciary and meaning of the Constitution – an influence that continues in various ways even today, a century after his service on the court.
Sutherland clearly stated his view on the role of the judiciary – effectively, his view on the idea of judicial restraint – in a dissenting opinion in a 1937 Supreme Court ruling:
The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase “supreme law of the land” stands for, and to convert what was intended as inescapable and enduring mandates into mere moral reflections.
However enduring Constitutional language was to Sutherland, he also recognized the reality that these unchanging principles must be applied to ever-changing circumstances. This influenced his views on various influential Supreme Court opinions that he authored. As he wrote in 1910:
The powers of government must be commensurate with the objects of government, else only a semi-government has been created. … The Constitution was made not only for those who adopted it, but for us who live under it, and those who will live under it, please God, for all time to come; not only for the comparatively small affairs of that day, but for the vast affairs of this day, and for the vaster affairs of a future whose greatness and complexity no man can foresee. Like the living garment which clothes the living body, it must continue to clothe the Nation whose living garment it is, or the Nation must become naked and defenseless at some vulnerable point.
In a 1915 speech, Sutherland made remarks that clarified somewhat how this thinking regarding the adaptation of the Constitution to new and changing circumstances fit with his thinking on the unchanging meaning of the Constitution:
Personally, I belong to that school of interpretation which teaches a broad construction of the Constitution. Stupendous changes have taken place since the convention at Philadelphia. Conditions have arisen which the fathers with all their pre-vision never contemplated and conditions will arise in the future that no one of our generation is wise enough to foresee. The Constitution is not a petrifaction: it expands as the needs of the nation expand, not in meaning, as the Supreme Court has often said, for its meaning is always the same, but in its application to every new thing and every changing circumstance, which by a liberal interpretation may be brought within the scope of its terms. We are permitted to go in new directions and to adopt new methods, provided always, the result we seek is one which is specified [in the Constitution]: we may not go in any direction or adopt any methods, old or new, in order to bring about an unspecified result. The first is fulfillment: the second is usurpation. … The Constitution is not a wall which obstructs: it is a rampart which protects. Behind its shelter we have become a great self-limited democracy, where, for the first time in all history, the state has ceased to be a master and has become a servant. And this has been wrought by the Constitution, for the Constitution is the ever-sounding mandate of the People to the State, “Thus far and no farther.”
The Constitution and federalism
A final source of significant insight and enlightenment from Sutherland’s thinking are his views on the bright line that the Constitution drew between the powers of states and the people and those of the federal government. Sutherland’s thinking on federalism began, as should be expected, in history. As he wrote in 1910:
It is clear from a consideration of the events leading up to and surrounding the adoption of the Constitution that the primary purpose of the specific enumeration of the powers of the [federal] government over internal matters was to preclude any encroachment of that government upon those powers which it was deemed the State governments should exclusively possess. It was recognized that every power exercised by the [federal] government which the States were severally competent to exercise reduced the aggregate of the normal State powers. The effect of the enumeration is, therefore, quite as much to affirm the possession of these unenumerated powers to the several States, as it is to deny them to the [federal] government. Over its internal affairs the State government possesses every power not delegated to the [federal] government, or prohibited by the Constitution of the United States or the State Constitution. … The men who made [the Constitution] were deeply versed in the science of government. They distributed all necessary authority over domestic affairs … either to the [federal government] by enumeration or to the States by non-enumeration.
For Sutherland, the importance of the bright line between federal and state authority made clear by the enumeration of powers in the Constitution was superseded only by the separation of powers between Congress, the executive and the judiciary. It was important for practical reasons of good government, and crossing those bright lines would bring harmful consequences. As he said in 1917:
Next to the separation and distribution of the legislative, executive, and judicial powers, the most important feature of our plan of government is the division of the aggregate powers of government between the Nation and the several States, to the one by enumeration, and to the other by reservation. I believe in the most liberal construction of the national powers actually granted, but I also believe in the rigid exclusion of the National Government from those powers which have been actually reserved to the States. The local government is in immediate contact with the local problems and should be able to deal with them more wisely and more effectively than the [federal government] having its seat at a distance. The need of preserving the power and enforcing the duty of local self-government is imperative, and especially so in a country, such as ours, of vast population and extent, possessing almost every variety of soil and climate, of greatly diversified interests and occupations, and having all sorts of differing conditions to deal with. There is, unfortunately, however, a constantly growing tendency on the part of the [federal government] to intrude upon the powers of the State governments, more by way of relieving them from responsibilities they are willing to shirk than by usurping powers they are anxious to retain. Especially does any inroad or suggested inroad upon the Federal Treasury for State purposes meet with instant and hearty approval. The grave danger of all this is that the ability as well as the desire of the people of the several States to carry their own burdens and correct their own shortcomings will gradually lessen and finally disappear with the result that the States will become mere geographical subdivisions and the Federal character of the Nation will cease to exist … as a more or less discredited tradition.
Even a century ago, the allure of obtaining federal funding and pushing political accountability from themselves to their national counterparts was difficult for state policymakers to resist. And yet, to Sutherland, following this siren song would act as a poison that would weaken the effectiveness of both state and federal government. As he said in 1910:
While maintaining the power of the [federal] government to adequately meet and deal with every external situation which affects the general welfare of the United States, it is no less essential to maintain the supreme power of the State governments to deal with every question which affects only the domestic welfare of the several States. … There is a growing tendency on the part of many of our people to insist that because an evil has become great or wide-spread, and the several States do not deal with it as it should be dealt with – either from lack of desire or lack of ability – the [federal] government as a sort of overlord, should assume the responsibility of correcting it. … The [federal] government has been given no authority to legislate respecting the domestic evils which exist within the limits of a State simply because they are monstrous evils, any more than if they existed in France or England. To do so would constitute a clear invasion of the reserved powers of the States, and in its ultimate effect would prove more harmful than the failure of the State to cure its own evils. … To the extent that the [federal] government would assume the responsibility of correcting the evils in a State, the State government would quite likely shirk its own responsibility. With the gradual abridgment of local action would come the gradual loss of local ability. The people of the State would lean more and more upon the National government which is remote from the locus of the evil, instead of relying upon themselves who are in close touch with it. Their power would become atrophied from disuse as the muscles of the body become atrophied from lack of exercise. Such a process would inevitably, to a great extent, sap the feeling of local responsibility, and in time the [federal government] itself would become unable to bear up under the multiplicity of duties which it would be compelled to assume. The States are politically as well as geographically parts of one great governmental organism. To destroy or reduce the vitality of one of these parts would in the end reduce the strength of the whole, as the vigor of the human body is lessened by the loss or weakening of one of its limbs.
For Sutherland, the federalism of the Constitution protected the ability of both the state and federal governments to govern functionally and effectively. States abandoning federalism for funding or the federal government abandoning federalism in the passion of a moral crusade would over time only produce a bloated and ineffective federal government and political dysfunction at all levels. Much of that has occurred as Sutherland said it would.
Sutherland’s political thought offers a unique blend of conservatism and optimism: historically grounded but forward-thinking. Much of his thinking seems even more relevant today than it was in his own time. By understanding and applying his philosophy on the Constitution, we can find unique resolutions to controversial political and policy issues that find resonance across partisan and ideological lines – just as Sutherland’s policy views and judicial opinions often did.
In a time of narrow congressional majorities and weak governing mandates, policymaking across divides is a must. American politics and governance would be better off if more policymakers learned from Sutherland’s example.
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