George Sutherland, a senator from Utah and an associate justice of the United States Supreme Court from his appointment by Harding in 1922 to his retirement in 1938, has, despite his recognized legal scholarship, his early espousal of women’s rights, and his ringingly liberal opinion in the Scottsboro case, been largely associated in the minds of law professors and historians with three of his colleagues on the high bench: Willis Van Devanter, Pierce Butler, and James C. McReynolds. Sutherland and this trio, with the occasional assistance of Owen Roberts, constituted the majority on the court who struck down much of the early social legislation of the New Deal. The “four horsemen,” as they were derisively labeled by contemporary liberal papers, were depicted as standing like so many Horatii at the bridge of progress, barring all efforts to lift the nation out of its dark depression and forcing the president to the desperate remedy of his court-packing bill. What Roosevelt failed to accomplish in this too peremptory fashion—his bill would have added up to six new seats to the court—he succeeded in effecting by later appointments, and the Constitution was duly stretched and fitted to the needs of his brain trust.

The “horsemen” were never credited by the liberal press with any motive but a curmudgeonly desire to preserve at all costs the property rights of big business and the economic system known as laissez faire. As G. Edward White put it in The American Judicial Tradition:

Their presence was offensive, not because they shaped the Constitution to fit their preconceived views—all judges do that—but because those views were out of touch with contemporary conditions. The remedy [court-packing] was not to eliminate judicial glosses on the Constitution—those were inevitable—but to change the court’s personnel.

Certainly this attitude was “politically correct” when I was in law school in 1939. It was very much the thing to sneer at the old dodos and affirm that we could get to heaven through the wide open gate of the commerce clause. But time is a great revisionist. Now we read economic historians who tell us that the New Deal itself was relieved to be rid of such awkward early experiments as the National Industrial Recovery and the Agricultural Adjustment Acts, and Philip Howard in his currently best-selling The Death of Common Sense makes us wonder if the social gains thought to have been achieved were worth the crushing load of federal and state regulations under which we groan. And certainly the recent Republican victories at the polls oblige us to face the perhaps inarticulate but angrily reiterated demands of millions that the role of government in their daily lives be somehow reduced.

All of which shows that it is the right time to re-examine the role played in our Constitutional history by the “four horsemen,” which Hadley Arkes, professor of jurisprudence at Amherst College and the author of Beyond the Constitution, has clearly and cogently and even dramatically done in this study. He chooses to see Sutherland as the legal visionary who was very much the leader of the other conservatives on the court and one of the profoundest thinkers in the history of our jurisprudence, and I daresay he could prove this if he had the space to examine a greater portion of the justice’s myriad opinions over his tenure of sixteen years. But as he cannot do this, and as he picks out many flaws in the opinions he does analyze, one is left with the impression that Sutherland’s credit could well be divided with the others. But this doesn’t really matter. What Arkes’s book is basically about is expressed in its subtitle, and the issue of “natural rights” is viewed as a debate in which all the judges are involved.

The famous case of Schechter Poultry Corp. v. United States, in which the court in 1935 invalidated the National Industrial Recovery Act, is central to the issue. In effect, by this act, the government purported to enact a national code of labor under the pretense that it was not legislating at all. Owners, managers, and employers would decide “voluntarily” to join together under the banner of the blue eagle. Of course, there would be punitive taxation for those who declined. The result, for those who cooperated, were codes of infinite detail. Not only wages and hours of work and maximum and minimum numbers of laborers had to be set; there had to be regulations to deal with false advertising, selling of unfit produce, defamation of creditors, discrimination among customers by rebates. There seemed no end to it. As counsel for Schechter said in their brief, the codes “sought to regulate human activities literally from the cradle to the grave and beyond.”

Now how was this unconstitutional? As Arkes says: “Let us count the ways.” In the first place there was the improper delegation of legislative powers to the executive. The president could write what codes he wished, and furthermore he could redelegate this power to groups and associations that were outside the government. But even then there was no stability as to what the law was; the codes could be altered at will. As Huey Long protested to the Senate, after reminding his colleagues that everyone is presumed to know the law: “I will take back everything I have said if a single member of the Senate will hold up his hand and tell me he has read two thirds of the regulations that carry with them penal provisions putting one in jail if he does not observe them.”

The question of delegation ran into the further problem of the commerce clause. In the Schechter case the poultry may have moved in interstate commerce, but that movement had ceased before the Schechter Company’s work of killing and crating had begun. But in this as in all of the major New Deal projects the government refused to be limited. It extended the reach of the clause into the state to cover manufacture as well as transportation, to cover, in brief, virtually every aspect of every business, large and small. What had happened was that the government now presumed to manage the nation’s economy in the public interest.

The position of the opposition, as stated by Arkes, runs roughly thus: the power to regulate commerce is the power to prescribe the rules by which commerce must be “lawfully” conducted, and the “lawful” boundaries of commerce touch the boundaries of the decent and just. The law would do for commerce what it would do more generally for all other exercises of personal freedom: it would mark the things we may not legitimately claim in the name of our freedom. The commerce clause reflected a decision to extend to the Union the moral restraints that were traditionally supplied, for local commerce, by the common law and the laws of the state. The moral aspects of the clause are amply shown in the many decisions of the court upholding measures to restrain commerce in slavery, prostitution, lotteries, and liquor.

Viewed in this light, the commerce clause seems more sympathetic and less hostile to what the author defines as “natural rights” which existed, according to some theorists, before the passage of the Constitution or the forming of the Union: the right to make a living at an ordinary calling, the right not to have one’s assets seized in an arbitrary way, the right to enter into a binding contract, even with a stronger party than oneself. These rights should not be abrogated without a compelling public reason, and such a reason is not provided by a government’s desire to regulate the whole national economy, to tell every businessman how to run his business, and to foster unions on reluctant corporations.

Arkes does not see why the freedom of a man to support his family and earn a living is not a freedom with as much moral standing as that of a man in a park making a political speech, but he is well aware that this is not the view of most modern jurists. “Judges who would test any regulation on speech in the most demanding way would suspend their critical faculties when it came, say, to judging a local regulation for the licensing of cab drivers. In this exercise of judicial restraint they were willing to acquiesce, for the most casual reasons, to measures that would restrain the liberty of many ordinary folk in the innocent calling of driving a cab.”

The school of Hugo Black did not believe in “natural rights.” If they were not explicitly granted in the Constitution they did not exist, so far, anyway, as the federal system was concerned. To the liberal mind any “natural right” to make a living in an ordinary occupation undercut the liberty of the government to engage in economic experiments. “For Black, and the jurisprudence he described, there would have been no question about the competence of a state legislature to decide on just when the community could cast the protections of the law around unborn children.” Yet when Roe v. Wade came before the court, even the justices who had tended to follow Black felt constrained to find a new right (was it “natural”?) in the novel constitutional privilege of “privacy.”

If Franklin Roosevelt had found Sutherland a foe in the establishment of his social programs, he would have found him a staunch ally in supporting his international maneuvering in the years between the outbreak of war in Europe and Pearl Harbor. But Sutherland had retired in 1938. However, the broad executive prerogatives over military deployments, even in the absence of a declaration of war, were well supported by Sutherland’s opinion in the landmark case United States v. Curtiss Wright Corp. in 1936. There it was a matter of upholding the power of the commander-in-chief to bar the sale of arms to either faction in the Chaco war in Bolivia. The power came not from the Constitution but from the very nature of the polity.

In this vast external realm, with its important, complicated, delicate and manifold problems, the president alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.

Hadley Arkes leads us into the deepest jungles of constitutional thought, where some of his readers will feel it may be time to turn back, but his is a stimulating safari.