Americans Without Law by Weiner Mark S.;

Author:Weiner, Mark S.;
Language: eng
Format: epub
Publisher: New York University Press
Published: 2006-08-07T16:00:00+00:00

The muscular scientific certainty of such statements, by Hrdlička and others, became a central feature of the arguments used to defend against Ozawa’s suit.

And so, how did the Court deal with this mass of anthropological evidence that both sides of the case suggested was foundational to their claims? It ignored all of it; it chose, that is, not to rely on social science or a scientific standard in determining who was and was not a white person.72 Ozawa was the first opinion written by Justice George Sutherland, who had only recently joined the Court, and it forcefully implicated two commitments that lay at the center of his judicial work: furthering the jurisprudence of economic substantive due process and strengthening federal power over foreign affairs—areas of law that each required the strict definition of boundaries, one of the self, the other of the nation state.73 An immigrant from England who came of age on the Utah frontier, Justice Sutherland believed that at the center of American citizenship lay the ability of individuals to enter freely into contracts, a belief he famously expressed in Adkins v. Children’s Hospital (1923), in which the Court struck down minimum wage laws for women on the grounds that they violated contractual liberty.74 Through Adkins and similar decisions, Justice Sutherland came to be known as a fierce opponent of New Deal economic reforms, and among the Four Horsemen who battled with Roosevelt until 1937, he was the acknowledged intellectual leader, the inheritor of the mantle of Justice Field. In his work on the bench, Justice Sutherland sought to locate and reinforce bedrock principles that would keep the legislature from redistributive tyranny and the Court from interpretive contingency—a goal in which social science and sociological jurisprudence had almost no place.75 Natural law limits were universal in character, unaffected by the ever-changing knowledge of professional thinkers. In this sense, Justice Sutherland was the precise opposite of Louis D. Brandeis, whom he first encountered in an exchange of letters concerning the treatment of IWW leader Joe Hill by the Utah authorities (Brandeis requested that Justice Sutherland use his influence to inquire into the case; Justice Sutherland flatly refused).76

Justice Sutherland undoubtedly felt his general aversion to using social science with particular force in adjudicating an international affairs matter like that posed by Ozawa. For in addition to having foregrounded economic substantive due process in constitutional interpretation, Justice Sutherland also is the jurist on the Court who most developed American foreign affairs power. Like John Wesley Powell (“the Major”), Justice Sutherland firmly believed in the inviolable integrity of the Union; he urged, for instance, that in everyday speech Americans should say not that “the United States are a Nation” but rather that “the United States is a Nation.”77 In his decision-making, he sought to further that national coherence by granting the federal government extensive powers over international affairs, a leadership manifest in his opinion in Curtiss-Wright Export Corp. (1936), which granted the president plenary, extraconstitutional authority in foreign relations.78 In this respect,

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