While a student at the University of Alabama in 1952, I interned with a national public accounting firm in Atlanta. On my way to work I sometimes passed what was probably the first "adult" store I had ever seen. I remember a large sign out front with quotes from opinions of U. S. Supreme Court associate justice Hugo L. Black. In recent years my office has been in the Hugo L. Black U.S. Courthouse in Birmingham, Alabama. The foyer walls have bronze plaques, also containing quotes from Justice Black.
I have often wondered what made Justice Black tick. I realize that he is an icon to many in law, the media, and academia, but my study of his career and his judicial reasoning raises questions about the First Amendment jurisprudence that he is significantly credited with establishing. "Expedience" is a continuous theme in his career.
The Pre-Court Years
After he became a lawyer in Birmingham, Alabama, Black joined the Ku Klux Klan. In the early 1920s he represented a preacher charged with murdering a Catholic priest who had married the defendant's daughter to a Puerto Rican. Black appealed to both the religious and racial prejudices of the jury (he gave the Klan members on the jury the Klan sign), which acquitted the defendant. He had similar success in less notorious but similar cases.
In 1924, when U.S. senator Oscar W. Underwood from Alabama denounced the Ku Klux Klan, he knew that he could not retain his seat in 1926. John F. Kennedy's book Profiles in Courage recognizes Underwood's courage. Kennedy's book quotes another writer: "Had Senator Underwood played the game in Alabama in accord with the sound political rule of seeming to say something without doing so, there would have been no real opposition to his remaining in the Senate for the balance of his life." Black did not denounce the Klan, but joined it instead and was given a lifetime membership. He gave a letter of resignation to be disclosed when convenient. The oath he took included a promise to "preserve by any and all justifiable means and methods . . . white supremacy" (Roger K. Newman, Hugo Black, A Biography, pp. 91, 92). He made open appeals to its members and received its support when he ran for and was elected to the U.S. Senate, taking Underwood's position in 1926. During the campaign he addressed nearly all the 148 Klan Klaverns in Alabama (Ibid., p. 104). His total votes received closely paralleled the total Alabama Klan membership (Ibid., p. 115). He acknowledged that he owed his victory to the Klan. To a Klan gathering he stated: "I desire to impress upon you as representatives of the real Anglo-Saxon sentiment that must and will control the destinies of the stars and stripes, that I want your counsel" (Ibid., p. 116). Statements made by him during his campaign would today likely disqualify him from being principal at Wedowee, Alabama, High School.
In 1931 Black told an Alabama audience: "Our country is Christian. . . . The great Webster spoke right when he said that Christianity is the common law of the United States" (Ibid., p. 146). He told another Alabama audience that the real cause of the Civil War was not slavery but states' rights and that the South should be proud of its history (Ibid.).
As a U.S. senator, he filibustered against anti-lynching bills proposed in the U.S. Congress (Gerald T. Dunne, Hugo Black and the Judicial Revolution, p. 48). Newspapers accused him of ignoring the Fourth Amendment during Senate investigations. He led President Roosevelt's fight to "pack" the Supreme Court. Most constitutional scholars have condemned this effort, which was defeated. Roosevelt recognized his effort by nominating him to the Supreme Court of the United States. He initially denied that he had been a member of the Klan, or evaded the issue, and was confirmed and appointed as a Supreme Court justice. He later justified his Klan membership by saying, "I was joining every organization in sight. . . . I wanted to know as many possible jurors as I could" (Ibid., pp. 97, 98).
The Court Years
As a Supreme Court justice, Black voted to uphold the constitutionality of the internment of Japanese citizens, later saying, "They all look alike" (Ibid., p.318). He voted to uphold the constitutionality of poll taxes and voted to hold Section 5 of the Voting Rights Act of 1965 unconstitutional. He dissented in Griswold, precursor of and precedent for Roe v. Wade. Rather than decide Brown v. Board of Education on an obvious and immediate equal protection basis, he joined in a social engineering decision that led opposing forces to believe that they could continue to deny or delay this clear constitutional entitlement. Ironically, his icon status was enhanced because the very Alabama people whose support he sought in 1926 treated him as a traitor after 1954.
I reference Black's background, his votes in the Senate, and some of his opinions on the Supreme Court to demonstrate that his icon status is primarily attributable to his First Amendment jurisprudence. He is credited by members of the press, the entertainment media, and by his other supporters with leading the fight in this area. That's what my building celebrates.
Black became the leading exponent of the doctrine of total "incorporation" of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. When he began espousing the total incorporation doctrine, two Stanford University law professors wrote law review articles suggesting that he had manipulated and manufactured history in order to sell the doctrine. They said that he had been "willing to distort history, as well as the language of the framers, in order to read into the Constitution provisions [he thought] ought to be there" (Dunne, p. 263). His view of judicial activism during his Court-packing period was entirely different from his view as a member of the Court.
Black had an "absolutist" free speech philosophy. He early on joined the free-spirited Justice Douglas in a view that even obscenity was protected by the First Amendment (U.S. v. Roth). The total Court initially rejected this position, but Black and others gradually eroded the Court's position to the point that "adult" bookstores, magazines, movies, and pornography have grown exponentially. His popularity with the press and entertainment media was firmly established.
One of his biographers stated, "A more formally irreligious man would have been hard to find" (Newman, p. 521). He set out to bring about a total separation of religion and government. He was aided in this by his total incorporation theory (as opposed to the earlier "ordered liberty" approach previously taken by the Court). His position on religion was consistent with his anti-Catholic stance taken during his Ku Klux Klan days. It was also consistent with his recommending to others that they read the writings of atheist Bertrand Russell, who felt that all religions are untrue and harmful‹whether or not separated from the state.
It was not enough, however, for Black to use only the language of the First Amendment. He laid his groundwork through rhetoric and dicta in Everson v. Board of Education. He cited Reynolds v. United States, a Supreme Court "free exercise" case, to justify his "establishment" philosophy. He was not able to rely on language, which simply says that "Congress shall make no law respecting an establishment of religion." The Amendment refers to "law" and says nothing about the actions of any governmental officials other than Congress. Everyone understood what was meant by "established" religion. The ratifying states wanted Congress to have nothing to do with the issue of "establishment." Justice Story and Professor Cooley both recognized that the First Amendment was written in such a fashion as to "exclude from the national government all power to act upon the subject. . . . Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice, and the State constitutions" (Thomas M. Cooley, Constitutional Limitations [1868], p. 470).
The language of the First Amendment not being broad enough for Black, he reached out to an unofficial letter of Thomas Jefferson that made reference to a wall of separation between government and religion. He thus relied on an unofficial letter of a president who was not at the Constitutional Convention (nor was he in Congress when the Bill of Rights was adopted) and who had declined to follow the religious practices of the first president. Black expanded on even Jefferson's wall of separation quote by adding "high and impregnable." (Black could have as well adopted Jefferson's stand on the doctrine of nullification as enunciated in the Virginia and Kentucky Resolutions or his opinions about the dangers of judicial review.) Other writings of Jefferson's made it plain that he felt that state governments did not have the same religious restriction, but Black ignored this. He did not quote from a January 23, 1808, letter from Jefferson to Samuel Miller, where Jefferson stated: "I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the States, as far as it can be in any human authority.
"Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has the right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.
"I am aware that the practice of my predecessors may be quoted. But I have ever believed, that the example of State executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a State government was a violation of that right when assumed by another."
Black used the gimmick of carrying a copy of the Constitution while rewriting it. His course of action succeeded so well that many people now think that the Constitution specifically provides for a "high, impregnable wall of separation between church and state." The actual language has succumbed to the substituted language. His supporters, who include many professors and members of the press (including the editors of Liberty magazine) because of his absolutist First Amendment philosophy, ridicule all who question his decisions. His supporters look on him as a great savior because he helped "incorporate" the First Amendment and then rewrote it.
In describing Black's method of reaching judicial decisions, Newman metaphorically stated, "Black impatiently rummaged through the whole house and beyond, looking for articles, accessories, props, anything he could find, and added them to the foundation to develop a new structure" (p. 484). Newman also states, "Black was essentially a political being" (p. 329). Also, "he asserted historical episodes that gave sanction to his beliefs as if they were immutable truths. But in no way could history be as irrefutable or as one-sided as Black liked to believe"
(p. 507).
Another View
Of course, even the "ordered liberty" approach and/or selective incorporation had given emphasis to First Amendment type rights. They did not, however, create a "high, impregnable wall of separation" or otherwise re-write the First Amendment. Many of the personal actions of public officials that are now said to be breaches of the high and impregnable wall would not appear to jeopardize "ordered liberty" or to create "a church recognized by law as the official church of a nation [or state]" (see Webster's New Collegiate Dictionary, Tenth Edition, defining "established church").
I know that Black could not have changed the law single-handedly, but persistence is recognized as one of his strong characteristics. Newman states, "Above all, he was the driving force behind the Constitutional revolution that transformed the nation. 'No justice in our history had a greater impact on our law or on our constitutional jurisprudence,' his colleague William J. Brennan, Jr., later wrote. His impact on the country was greater than that of most presidents" (p. xiii). Thus it is appropriate to consider Black's history in evaluating the effect of his opinions on First Amendment law.
Some of the more scholarly rebuttals of Black's establishment clause jurisprudence are found in the dissents of Chief Justice Rehnquist and Justice White in Wallace v. Jaffree (472 U.S. 38 [1985]), the dissent of Justice Stewart in Stewart v. Vitale (370 U.S. 421 [1962]), and the opinion of Chief Judge Hand in Jaffree v. The Board of School Commissioners of Mobile County (554 F. Supp. 1104 [S.D. Ala. 1983]). Readers might at least learn what our founding fathers really stated, and immediately thereafter, practiced. While Chief Judge Hand's opinion may be questioned for not following what appeared to be the "established" law, it clearly demonstrates problems with how that law was "established." If the Constitution is to be amended, it should be pursuant to Article V. It should not be done by the stroke of the judicial pen based upon the personal philosophies of judges or the agendas of others.
In the October 6, 1997, U.S. News and World Report issue, John Leo discussed the book Drawing Life: Surviving the Unabomber, by David Gelernter, a Yale computer scientists horribly wounded by the "Unabomber." Gelernter's period of recovery gave him an opportunity to reflect on what could have caused America to so quickly deteriorate "from a stable and orderly world into our current chaos of fatherlessness, illegitimacy, divorce, violence, deviancy, and anything-goes morality." Leo states: "How did we get into this mess? Gelernter has an answer bound to irritate a lot of readers (but reassure many more): The intellectuals did it. He says that anti-bourgeois intellectuals and artists have always been outsiders with a predictable set of attitudes: opposition to "organized religion, the military, social constraints on sexual behavior, traditional sex roles, and family structures, formality or fancy dress or good manners, authority in general." But those attitudes now dominate the popular culture, he says, because the old elite has given way to a new intellectualized elite or intelligentsia that chopped away at tradition and won. The press is part of the problem, he says, because reporters lean liberal and favor the intellectual elite."
I submit that Justice Black, known as an intellectual, became an icon to the intellectual elite, whose agenda he helped establish. In fact, this article was prompted by Professor Schwartz's suggestion that Black was one of the 10 greatest U.S. Supreme Court justices and that the Jaffree district court opinion is one of the 10 worst (listed as number 2). It just demonstrates that truth cannot always compete with biased judgment. Perhaps the answer lies in the following quotes from Judge Lawrence Silberman of the United States Court of Appeals for the District of Columbia.
"The answer, as I have foreshadowed, is that the American working press has, to a man and a woman, accepted and embraced the tenets of judicial activism. Unlike the law schools, where one can still find a few professors who assert the virtues of judicial restraint, I have never met a legal reporter who holds to that view.
"The working press covers the federal courts, indeed any American courts, as if judicial decisions were simply the extension of politics by other means. As Justice Scalia has remarked, they seem uninterested in the reasoning of opinions‹which should be even more important than the result since it is the reasoning that is really law. And rather obviously they approve of only certain kinds of results.
"Of course, those of us who had been involved in judicial selection watched with great disappointment as judges seemed to change on the bench, or, as the press would say, "grew." It was quite frustrating to see those particular jurists come to accept and even relish the temptations of activism. They were rewarded by being described approvingly as "non-ideological"‹deciding each case on its merits‹which, as far as I can tell, meant that they were expected to reshape the law each time to conform to a desired outcome. (Ironically, hard-core Warren Court-type activists are never described as ideological.)
"So I understand better today the reason for the evolution of some judges. More often than not it is attributable to their paying close attention to newspaper accounts of their opinions."
Regardless of how we view the benefits or detriments of the law as it has developed, let's at least be honest as to how law of questionable benefit to American society has developed. Isn't it appropriate to separate sophistry from bona fide judicial reasoning? Isn't it appropriate to question how it came to be that Larry Flynt is a First Amendment hero and a judge who posts the Ten Commandments is deemed by some to be a kook? I do not countenance any judge or governor threatening to disobey controlling legal authority. Isn't it ironic, however, that it is arguably unconstitutional for a judge to display the venerable Ten Commandments, but that he arguably has a constitutional right to display a photograph of adult pornography?
Even when the Due Process Clause of the Fourteenth Amendment is considered to have incorporated the First Amendment, it is highly questionable that an individual public official's posting of the Ten Commandments "deprives any person of life, liberty, or property. . . ." Such action does not realistically affect a person's free exercise of his or her own religion, nor does it establish a religion for anyone. Merely being offended is not being deprived. If it is, let us similarly consider the offending nature of television and movie language. Isn't it appropriate to consider whether we are truly protecting fundamental rights and liberties or merely creating divisiveness by nitpicking?
Robert B. Propst is a senior U.S. district judge in Alabama.
Sidebar
OTHER VIEWS OF JUSTICE BLACK
[His] forte was . . . not so much adaptation of the law to deal with changing conditions as a virtual transformation of the law to meet quantum acceleration in societal change (Bernard Schwartz, Book of Legal Lists, p. 17).
The judicial function meant [to him] that the judge was to decide on the basis of his own independent judgment, however much it differed from that of the legislature or prior law on the matter (Ibid., p. 17).
From this point of view, a Frankfurter satiric portrayal of "him" acting as though he were "back in the Senate" contained some truth (Ibid., p. 18).
He could be the self-taught free-thinker dismissing a venerable tradition of law with a stroke of his judicial pen (Dunne, p. 29).
Justice Harlan once wrote, "It's wonderful what Hugo can do with a bum legal position by high-sounding phrases. . . ." (Newman, p. 484).
Justice Blackmun said that Black remained a "canny, lovable manipulator . . . ever the politician, ever the senator still" (Ibid., p. 601).
Justice Douglas, Black's favorite colleague, said, "You have to watch Hugo, he's tricky" (Ibid., p. 367).
Justice Reed said to his clerk, "Black will put something in this opinion that he plans to pull out and use five opinions down the road [see Everson]. . . so you better be careful about the future implications of what you see in things that he circulates" (Ibid., p. 367).
Sidebar
THE SECULARIZATION HYPOTHESIS
"Religion," The Oxford Companion to the Supreme Court of the United States, (Oxford University Press, 1992), pp. 717-719:
"It is clear that the [Establishment Clause] was not intended to do away with religious establishments then existing among the new American states."
"Nineteenth-century Americans understood the Constitution to require a separation of church and state only at the institutional level. This meant that constitutionally prohibited establishments of religion were created when the government coerced funding of or participation in a particular denomination or sect. However, it did not require that government or politics be secular. On the contrary, nineteenth-century Americans generally believed that Protestant values formed an important part of the foundation on which society was built."
"The 1930s also saw elaboration of the 'secularization hypothesis' by intellectuals in both the United States and Europe. Under this hypothesis, progressive secularization of society [not changes in the Constitution] was seen as an inevitable and positive long-term trend that would eventually end in the elimination of religion as a public influence."
"In the twentieth century, religion 'emerged as the preeminent symbol of everything that was bad in human society,' whereas science was inextricably tied up in the minds of most intellectuals with everything that was best in human society.
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