The Forgotten Formalist

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POLITICS DECEMBER 5, 1994

The Forgotten Formalist

Hugo Black: A Biography

by Roger K. Newman

(Pantheon, 741 pp., $30)

On February 17, 1960, at New York University, Justice Hugo Black defended his judicial philosophy against the sneers of Felix Frankfurter and Learned Hand. "Some people regard the prohibitions of the Constitution ... as mere admonitions which Congress need not always observe," said Black in backhanded response to Hand's lectures at Harvard two years earlier. This approach, which "comes close to the English doctrine of legislative omnipotence," Black could not accept. "It is my belief that there are absolutes' in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be absolute.'"

Black went on to ridicule a "wholly imaginary judicial opinion of Judge x"-- he wrote it as a parody of Frankfurter's lucubrations--that balanced away the Constitution by weighing the interests of the government against the rights of individuals. In the name of restraint, Black said, the balancing approach aggrandizes judges, converting "a government of limited powers to a government in which Congress may do anything that Courts believe to be reasonable." Instead, Black urged a rigidly formal theory of interpretation that forbade the judges from making prudential or political or moral judgments and required them instead to enforce rights derived from the text and history of the Constitution, regardless of the consequences.

Black, in other words, was a liberal strict constructionist, and so he seems an especially useful model for liberals today. He represents Robert Bork and Antonin Scalia's worst nightmare, for his opinions demonstrate that judges who take constitutional text and history seriously should reach liberal results as often as conservative ones. In three areas in particular, Black's liberal legacy is truly heroic: his role in legitimating the New Deal by weaning the Court from the doctrine of substantive due process; his brave First Amendment dissents in the McCarthy era; and, most important of all, his intellectual leadership in applying the Bill of Rights against the states and, in the process, reforming state criminal justice systems, many of which were primitive and racist. In all three areas, Black's real reverence for the language of the Constitution enabled him to frame his arguments with the genius of simplicity, although it's arguable that the harmony between his agenda and the text was a lucky coincidence as much as anything else. At the same time, Black understood the dangers of judicial heroics, and he was just as passionate about refusing to enforce rights that he thought weren't in the Constitution--he dissented, for example, in the Griswold contraceptives case-- as he was in enforcing the rights that he thought were clearly enumerated.

What is peculiar about Black's legacy is that liberals have lost interest in it. On the new, post-ideological Supreme Court, the moderates--Stephen Breyer, Ruth Bader Ginsburg and David Souter--are apostles of prudence and practicality, of Felix Frankfurter and John Harlan; while the heirs of Black are the marginalized conservatives, Antonin Scalia and Clarence Thomas, who have narrowed Black's expansive respect for text and history into the partisan burlesque of "original understanding." In the academy, Black has long been dismissed as eloquent but simplistic ("He is said to write his opinions for the intelligent layman," sniffed Thomas Reed Powell in the mid- '40s). And the most exciting legal scholarship in the '90s--from neo-pragmatism and law and economics to critical race and gender theory--scorns Black's sturdy formalism as self-deluded, deceitful and just as arbitrary and result-oriented in its choice of formal categories as the approaches of his less categorical opponents.

Is this the time for a Black revival? Or is what Black called his " constitutional faith"--that "language and history ... not reasonableness and desirability" are the only legitimate considerations in constitutional interpretation--too simplistic to bear close scrutiny? The publication of the first comprehensive biography of Black seems like a good occasion to ask these questions. After a decade of research, and interviews with more than a thousand of Black's associates, Roger K. Newman has produced an engaging and detailed, if somewhat breathy, portrait. ("Black and books, books and Black-- they went together like Black and tennis," he says at one point.) It is especially useful in the early chapters, which fill in the familiar outlines of Black's early career with vivid anecdotes.

But because Newman's focus is biographical and anecdotal, rather than jurisprudential and analytical, his book does not attempt to cast new light on Black's judicial philosophy, or on Black's success in applying it. For a full understanding of Black's ideas, it's helpful to begin with shorter interpretive studies--especially Tinsley Yarborough's excellent defense, Mr. Justice Black and His Critics (1988), and James Magee's subtle attack, Mr. Justice Black: Absolutist on the Court (1971). Read in conjunction with Black's own writings, all three books suggest that Black was fooling himself when he claimed that his methodology eliminated judicial discretion or thwarted his own preferences in a systematic way. Still, for all its contradictions and inconsistencies, Black's approach remains easier to reconcile with popular sovereignty and democracy than the theories of his rivals.

In a sense, a full-scale biography is the least efficient way of understanding Black, who was far more concerned, as G. Edward White has noted, with preserving his theory of adjudication than with the results it produced. But given the complicated relationship between Black's life and his jurisprudence, one expects a biographer to tease out the contradictions and tensions. In several areas, Black managed radically to separate his positions as a politician from his positions as a justice: his membership in the Ku Klux Klan, and his race-baiting as a defense lawyer, for example, are hard to reconcile with his brave opinions during his first years on the Court insisting on equal rights for blacks.

Newman is not very interested, though, in exploring the relationship between biography and judicial philosophy. Instead, he manages to evoke some of Black's maniacal self-improvement, and the homespun erudition that he combined with a populist suspicion of eggheads and plutocrats. He was christened Fayette Hugo: the surname was chosen by his oldest sister, who had been reading Victor Hugo when he was born. His father Faet Black, the richest supply merchant in Clay County, Alabama, was an alcoholic and usurer who advanced seed, fertilizer and equipment to local farmers at interest rates of up to 75 percent. Tightly wound, soft-spoken and iron-willed from childhood, he dropped out of high school at 15, went straight to the University of Alabama Law School, and spent the rest of his life relentlessly filling the gaps in his formal education. (He boasted, for example, of vanquishing one of his Senate opponents by quoting a passage of the "Fallacies of the Anti- Reformers," from Volume 27 of the Harvard Classics.) Guided by an article by Will Durant called "One Hundred Best Books," he buried himself in the Greeks and Shakespeare; and he became such a partisan of Jefferson that the mere mention of Hamilton's name was enough to provoke him to fits of oratory. Later he would tell his clerks that Edith Hamilton's The Greek Way was "the best preparation for the job I could think of."

Newman's most important contribution is assembling the evidence of Black's racial attitudes, and his involvement with the Klan, into a single, fair- minded narrative. His account suggests that Black's views were enlightened by the standards of Clay County, Alabama, in 1920, but far cruder than those he championed on the Court. Appointed at 25 to be a judge on the Alabama police court, Black dispensed mercy to petty burglars with a flamboyance that suggested Henry Fielding's performances as a justice of the peace. After becoming a local celebrity, he ran successfully for county prosecutor; and he distinguished himself by lobbying to improve prison conditions for blacks and whites, and publishing a report on coerced confessions. Then he became a personal injury lawyer, where his exhaustive preparation and instinctive sympathy with the jurors made him a very rich man.

After deliberating for almost a year, Black decided to join the Klan in 1923. But his standard explanation--"I went to a couple of meetings and spoke about liberty"--was false. In fact, during his first race for the Senate, Black marched in parades and spoke at nearly 150 meetings, dressed in full Klan regalia. ("I arranged for Hugo to go to Kalverns across the state, making talks on Catholicism," his campaign manager recalled. "Hugo could make the best anti-Catholic speech you ever heard.") Awarded a Klan "grand passport" after winning the Democratic primary in 1926, Black accepted it enthusiastically. "I know that without the support of the members of this organization," Black observed, "I would not have been called, even by my enemies, the junior Senator from Alabama.'" The daughter of one of Black's first mentors recalled that when she ran into a closet as a little girl, a white Klan uniform embroidered with Black's name fell on her head. "Oh, that's Mr. Black's costume," said her mother. "He's going to wear it in a play Saturday night."

Years later, when a clerk asked him why he joined, Black replied simply: " Why son, if you wanted to be elected to the Senate in Alabama in the 1920s, you'd join the Klan, too." But Black relied on the Klan not merely to get elected to the Senate--the Klan controlled about 50,000 votes in Alabama--but also to win verdicts from sympathetic jurors. In his most unsettling performance, Black defended a Protestant minister who had murdered a Catholic priest after the priest performed the marriage of the minister's daughter to a Puerto Rican laborer. "You are a Catholic, aren't you?" Black asked each of the prosecution witnesses. He had a battery of floodlights installed in the courtroom, and he theatrically trained them on the swarthy Puerto Rican bridegroom at the climax of his testimony. "That will do. I just wanted the jury to see that man," said Black. And during his closing argument to the jury, most of whom were Klansmen, Black recited the official Ku Klux Klan prayer: "Our Father and Our God. We, as klansmen, acknowledge our dependence upon Thee...." The jury, obligingly, ignored the evidence and voted to acquit.

In the Senate, Black cultivated his political base: he became hysterical, one reporter noted, during a debate about a federal assistance plan that would have fed blacks as well as whites. He also made his national reputation as an ardent New Dealer: when he proposed to create six million new jobs by legislating a thirty-hour national work week, even FDR privately questioned the constitutionality of the plan. As a reward for Black's loyal support during the Court packing battle, Roosevelt appointed him to the Court in 1937. The appointment was exquisitely spiteful revenge on the Senate and the Court, even by fdr's standards. "To give the rebels' part of the country so important an appointment," wrote Joseph Alsop and Turner Catledge, "yet give it to one of the two or three left-wingers in the Senate was a neat and cruel irony to the rather vengeful President."

As a justice, Black's success in setting aside the racial prejudices that he had flirted with in the Senate is an impressive display of the triumph of methodological discipline over political opportunism. When Newman attempts to draw connections between biography and jurisprudence, however, the insights are sometimes superficial. "Black barely peeped when invasions against Fourth Amendment rights were charged," writes Newman. "Much of the reason derives from his experience working closely with police officers while he was a prosecutor in Birmingham." This is a little glib. The most obvious reason for Black's narrow construction of the Fourth Amendment had nothing to do with biography; it flowed from his textualist judicial philosophy. Unlike the First Amendment, whose commands appear, as Black said, to be absolute, the Fourth Amendment prohibition is far more subjective ("The right of the people to be secure ... against unreasonable searches and seizures, shall not be violated"). Black felt he was being faithful to text and history when he made the reasonableness of a search the touchstone of its constitutionality. And when Alexander Bickel and others criticized Black for begging all the hard questions in constitutional interpretation, they misunderstood the nature of Black's absolutism, which was not a method that purported to define the scope of constitutional rights, but a standard for enforcing those rights, after their meaning has been derived.

It is on the derivation question, of course, that Black remains very vulnerable. The claim that text alone gives clear answers to controversial questions is a pretense; and Black never explained very clearly how judges should fill in the blanks when text and history are murky. In his NYU lecture, for example, Black said unhelpfully that there would be differences in opinion about what counts as an unreasonable search, but "if it is unreasonable, it is absolutely prohibited." He was also fond of underlining " I read no law abridging' to mean no law abridging'"--another example of his tendency to substitute italics for argument.

In addition to failing to specify how rights should be derived from text and history, Black never explained very convincingly why text and history were important in the first place. In his Charpentier lecture, delivered at Columbia in 1967, Black said that his reading of the historical events surrounding the ratification of the Constitution convinced him that the federal government is one of limited powers, and that no department of government--executive, legislative or juridical--has authority to add to or subtract from the powers granted or denied by the Constitution. Judges must enforce the textual limits of the Bill of Rights, he said, to preserve "our written constitution" (those italics again), and to prevent the federal government from extending its powers into the realm of liberties marked off in the Bill of Rights.

This sounds fine, as far as it goes; but Black's ode to limited government is hard to reconcile with his own role in presiding over the expansion of the administrative state. Black never seriously grappled with the ways in which the New Deal subverted the eighteenth-century notion of precisely limited federal powers. (In supporting FDR's courtpacking plan, Black argued that the Commerce clause gave Congress the authority to pass any laws that directly or indirectly affected the national economy; during thirty-four years on the Court, he never voted to strike down any federal law for violating the Commerce clause.) The overconfidence of his set pieces about limited federal power gives a simpleminded quality to several of his opinions, such as the Steel Seizure case in 1952, in which he declared that President Truman had no authority to seize control of steel production during the cold war because " the Founders of this Nation entrusted the lawmaking power to Congress alone in both good and bad times." Applied literally, Black's mechanical notion that the Constitution grants all lawmaking authority to Congress, and none to the executive, could invalidate the modern administrative state, which Black himself had helped to construct as a senator and to legitimize as a Justice.

Black also never explained how his notion of the Bill of Rights as a guarantee of limited federal powers could be turned against the state governments, whose powers are general rather than precisely enumerated. For example, Black often said that the absolutist language of the First Amendment- -"Congress shall make no law"--reflected a widespread understanding in 1789 that Congress lacked enumerated power to suppress speech. But he skirted over the fact that state governments in 1789 were free to suppress speech in whatever ways they pleased. The federalism argument clashes, therefore, with Black's most important legacy: his claim that the privileges and immunities clause of the Fourteenth Amendment incorporated the restrictions of the First Amendment, and the rest of the Bill of Rights, against the states. If the purpose of the First Amendment was purely jurisdictional, rather than libertarian, it's hard to see how it can logically bind the states at all. Sketched broadly in the Charpentier lecture is a more satisfying theory, rooted in what Black called "popular government by the people themselves." Principles of democracy and popular sovereignty required, Black believed, that political decisions should be confined to the political branches, and that judges should enforce the will of the people, represented by the text and history of the Constitution, rather than being guided by extra- constitutional considerations, such as prudence or morality. "Adherence to the Constitution as written does not mean we are controlled by the dead," Black said. "It means we are controlled by the Constitution, truly a living document," because the people have the power to amend the Constitution whenever they no longer agree with the principles enshrined by past generations. Expressed at this level of abstraction, Black's neo-Hamiltonian theory seems coherent; and none of the most prominent rival theories-- pragmatism, legal realism, or common law constitutionalism--has adequately answered Black's charge that it's hard to reconcile a broad prudential or pragmatic role for judges with the American tradition of popular sovereignty and a written constitution.

There's a heady radicalism to Black's approach: every decision is a return to first principles, and every precedent is always up for grabs. Within the areas that he thought judges competent to decide, Black was not squeamish about overruling landmark cases, or uprooting decades of traditions and practice, because he thought that tradition and precedent had to be subordinated to the text of the Constitution itself. (During Black's thirty- four years on the Court, he dissented more often, and argued that more decisions should be overruled, than any other justice.) Black considered himself, therefore, a judicial activist in his willingness to enforce textually enumerated rights, and a champion of judicial restraint in his refusal to enforce rights that were not textually enumerated.

But Black never reflected very deeply about the mantra of text, history and structure: he never explained when it was appropriate to consider textual arguments, as opposed to historical or structural ones, and how the three tools of interpretation relate to each other. Sometimes he resorted to purely structural arguments--claiming that particular principles or results were implicit in the structure of government and the institutional relationships created by the Constitution. In his partial dissent from the Court's decision upholding the Voting Rights Act in 1965, for example, Black complained that Section 5 of the act, which requires local governments to ask permission of U. S. district courts before adopting new election laws, conflicted with structural principles of federalism, rather than with specific constitutional language.

In other areas, such as free speech, Black was primarily a textualist, interpreting the words of the Constitution without resorting to extrinsic evidence of their historical meaning. When interpreting the religion clauses of the First Amendment, by contrast, Black rushed past the absolute prohibitions of the text and relied on historical arguments about the intentions of the people who framed and ratified the Constitution. Although the language of the First Amendment forbids all laws "prohibiting the free exercise" of religion, for example, Black concluded that the Framers of the amendment intended to protect only "religious speech and beliefs, rather than religious practice or conduct."

Applied in a vacuum, textual arguments that are divorced from history, or historical arguments divorced from text, make little sense. There are plausible theories of judicial review that question the value of history entirely; but it's hard to see the rationale for exalting the text of the Constitution without considering the circumstances that created it. As David Strauss argues, unless constitutional interpretation is to be reduced to verbal fetishism, judges have to make some effort to attempt to reconcile textual, historical and structural considerations--to begin with the text, identify a historical principle that the ratifiers of the textual provision intended to protect, and then translate that principle from the eighteenth or nineteenth century into the modern world.

Black's most impressive decisions showed a creative sensitivity to the importance of interpretative translation. Unlike Bork and Scalia, he recognized the importance of reasoning by analogy, rather than mechanically binding himself to an eighteenth-century worldview. As Charles Reich argued in his 1966 essay, "Mr. Justice Black and the Living Constitution," Black often asked what a given provision of the Bill of Rights was designed to accomplish--what evils it was intended to prevent--and then tried to translate the historical provision by applying it in a very different place and time. During the McCarthy era, for example, Black argued that Congress's attempts to punish individual members of subversive organizations were the modern equivalents of bills of attainder. He also suggested that espionage prosecutions were the modern equivalent of prosecuting treason, and should therefore proceed under the constitutional requirement for treason trials. Black himself became indignant, of course, when Reich suggested that he believed in a "Living Constitution" updated by judges, and until the end of his life he denied the need for translating the Framers' values at all. But the conceit that it's possible to commune directly with the Framers is Black's problem, not ours. His best decisions are models of translation; and they show that it's possible to be respectful of text and history while identifying constitutional principles at intermediate levels of abstraction that avoid the radicalisms of Robert Bork and Ronald Dworkin.

 

Like Bork, however, Black was often arbitrary in his decisions about when to engage in interpretive translation and when to stop his inquiry in the eighteenth century. Reasoning by analogy, for example, Black believed that a police-compelled stomach pump should be considered a "search" within the meaning of the Fourth Amendment. But he consistently dissented from efforts to extend the Fourth Amendment to regulate wiretapping. Conversations cannot be "seized" within the ordinary meaning of language, he argued, and the Framers were aware of eavesdropping, but didn't believe that the Fourth Amendment prohibited it. The jarring gap between the levels of abstraction in the two decisions shows that Black's methodology hardly eliminated judicial discretion and subjectivity, despite his claims to the contrary.

The fact that Black's formalism often led him to results that seem arbitrary, erratic, perverse and unpredictable strikes me, in the end, as a point in his favor. The weirder the results, the more dramatic the proof that Black was controlled by law rather than policy. The more troubling charge is that Black sometimes adjusted his methodology, or slanted his history, to guarantee the results he preferred. For example, Black's treatment of history in First Amendment cases is especially problematic. Put starkly, it's very hard to reconcile his First Amendment absolutism--which would have granted absolute constitutional protection to obscenity, libel and slander--with even the most liberal conception of free expression in the late eighteenth century.

Black never delved very deeply into eighteenth-century history; but he was distraught after reading Leonard Levy's Legacy of Suppression, which argued that the Framers of the First Amendment intended nothing more than Blackstone's cramped notion of free speech: freedom from restraint before publication, but no freedom from punishment after publication, including punishment for seditious libel. Levy's book, Black told a friend, "strikes one of the most devastating blows ever directed against civil liberties in America." Black was willing to admit that some Framers--especially the vile Hamilton--didn't think the First Amendment abolished seditious libel; but he thought it was crucial that no Framer said explicitly that seditious libel wasn't abolished by the First Amendment.

The only way that Black could reconcile full protection for obscenity and libel with the eighteenth- or nineteenth-century understanding of the First Amendment was to define the Framers' intentions at an intermediate level of generality, rather than pretending to discover concrete judgments that weren't there. "The basic premise of the First Amendment is that all present instruments of communication, as well as others that inventive genius may bring into being, shall be free from governmental censorship or prohibition," Black said in a dissent in 1949. This is broad enough to cover dirty movies, but it required Black to adopt a series of broad limiting principles. He joined a 1942 decision exempting commercial speech from the protection of the First Amendment, arguing that commercial speech is part of a broader course of conduct "carried out by means of language"--the attempted sale of a product or service.

Black also excluded "symbolic speech" from the full protections of the First Amendment. He dissented from the Tinker case in 1969 on the grounds that the wearing of armbands to protest the Vietnam War was a form of conduct rather than speech. He also insisted that nothing in the Federal Constitution "bars a State from making the deliberate burning of the American flag an offense." He took an equally cramped view of political protest during the civil rights and Vietnam eras; and he emasculated the First Amendment right to freedom of assembly by holding that protesters could not demonstrate on public property without the government's consent. The arbitrariness of Black's judgments--communicating ideas by means of flags and emblems is " conduct"; having sex on camera is "speech"--suggests that Black's choice of formal categories may not have been completely divorced from his personal convictions.

When the full record of his jurisprudence is evaluated dispassionately, it is clear that Black was vulnerable to the familiar pitfalls of formalism: his choice of categories was sometimes arbitrary and subjective; he often switched indiscriminately from textual arguments to historical ones without justifying his choices in a very systematic way; and he periodically succumbed to the temptation of prudence. As Black himself told a law clerk in a moment of rare candor: "A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in... A judge who does not decide some cases ... differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his judicial philosophy ... no matter how important the issue involved, is a fool. "

And yet Black's inconsistencies are overshadowed by the nobility of his vision and his achievements. By insisting that judges should enforce all the provisions of the Constitution without deciding whether they are wise or prudent, Black led the Court out of the wilderness of legal realism and answered the charge that all law is politics. For liberals who have allowed conservatives to coopt his legacy, now is a good time to reclaim it.

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posted in: politics, alabama, alexander bickel, antonin scalia, charles reich, clarence thomas, david souter, edith hamilton, faet black, fayette hugo, felix frankfurter, g. edward white, henry fielding, hugo black, james magee, john harlan, joseph alsop, ku klux, learned hand, robert bork, roger k. newman, roosevelt, ruth bader ginsburg, stephen breyer, thomas reed powell, turner catledge, victor hugo, congress, harvard, ku klux klan, new york university, senate, supreme court, university of alabama

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