Constitution Daily

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Hugo Black, unabashed partisan for the Constitution

August 12, 2017 by Nicandro Iannacci

 

Hugo Black

On August 12, 1937, President Franklin D. Roosevelt nominated then-Senator Hugo Black of Alabama to the Supreme Court. The Justice would go on to serve for more than three decades, establishing an impressive legacy of support for civil liberties and strict adherence to the text of the Constitution.

Hugo Lafayette Black was born in small-town Harlan, Alabama, on February 27, 1886. He was the youngest of eight children born to William Lafayette Black, a one-time Confederate soldier, and Martha Ardellah Toland, who named him after Victor Hugo, the famous author of Les Misérables.

Though Black never graduated from high school, he briefly attended medical school before switching to the University of Alabama Law School, where he graduated Phi Beta Kappa in 1906. Yet his relative lack of formal education stuck with him through adulthood, when he maintained a book-a-day diet that included classical and European history, philosophy and American fiction.

In 1911, Black left private practice to serve for 18 months as a local police court judge, where he observed firsthand the practices of Birmingham law enforcement. It is suggested that this experience gave him both an inclination to support police and an awareness of brutality toward African-Americans and other minority groups.

His career as a district attorney and trial lawyer further suggests consciousness of and sympathy for the downtrodden. One of his first acts as the Jefferson County DA, for example, was to release several hundred prisoners held under a fee system by which officials received a per-diem stipend for each person in their custody. Black also investigated and ended a system of forced confessions that included buckle-strap beatings. He later resigned from his post to enlist for one year in the U.S. Army during World War I.

Yet his decision in 1923 to join the Ku Klux Klan for two years would dog him for the rest of his career, casting a shadow over the rest of his accomplishments. In an interview with the New York Times, held confidential until his death, Black said the “main reason” he joined the Klan was to earn “an even chance” with juries in his private career: “I was trying a lot of cases against corporations, jury cases, and I found out that all the corporation lawyers were in the Klan. A lot of the jurors were too, so I figured I’d better be even-up.”

Still, Black marched in parades and spoke at nearly 150 meetings, dressed in the white Klan uniform. After winning the Democratic Senate primary in 1926, he accepted a Klan “grand passport,” saying, “I know that without the support of the members of this organization, I would not have been called, even by my enemies, ‘the junior Senator from Alabama.’” That gift came back to haunt him after his Supreme Court confirmation, when the press accused him of maintaining a Klan membership—an assertion he later dismissed forcefully in public remarks one month later.

As a U.S. Senator for two terms, elected in 1926 and 1932, Black was a fervent supporter of FDR’s New Deal programs, going so far as to propose a 30-hour national work week, which passed the Senate but died in the House. He also investigated the fraudulent lobbying activities of public utilities, leading to new regulation. (“You, the people of the United States, will not permit it to destroy you,” he said of the utility lobby in a public address. “You will destroy it.”) However, Black also tried to reduce immigration and led a battle against anti-lynching legislation, complicating his liberal record. He even supported FDR’s “court-packing” plan, believing as the President did that the Supreme Court was misinterpreting the Constitution by striking down economic regulation in the midst of a Great Depression.

So it was with more than a little irony that Black was FDR’s first nominee to the high court, filling the seat of Justice Willis Van Devanter, one of the “Four Horsemen of Reaction.” Black’s firm opposition to the use of “substantive due process”—a controversial doctrine by which “unnamed” rights, such as the right of contract or the right to marital privacy, are protected by the Due Process Clauses of the Fifth Amendment and 14th Amendment—made him an ideal candidate. “That’s why I came on the Court,” he later told the Times. “I was against using due process to force the views of judges on the country. I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.”

Black’s influence may be most visible—and consequential—in the incorporation, or application, of the Bill of Rights against the states. His dissent in Adamson v. California (1947) laid out a theory of “total incorporation,” by which the 14th Amendment made all the rights and freedoms of the first 10 amendments apply as much to state governments as to the federal government. He was aggressively opposed by Justice Felix Frankfurter, who argued in a concurring opinion that the 14th Amendment merely required states to follow principles of “fundamental fairness” and “ordered liberty.”

He didn’t win the Adamson fight, but Black was later vindicated by Justice William Brennan’s theory of “selective incorporation,” by which many provisions of the Bill of Rights were applied to the states on a case-by-case basis through the 14th Amendment’s Due Process Clause. Though incorporation began more than half a century earlier in Chicago Burlington (1897), it found new success after Frankfurter’s retirement in 1962, eventually applying most provisions to the states with only a few exceptions.

Black also played an important role in a swath of landmark cases, many of which are household names or nearly so. In some cases, Black spoke for the Court, while in others, he simply joined the majority. These include Mapp v. Ohio (1961), applying the exclusionary rule to the states; Gideon v. Wainwright (1964), applying the right to counsel to the states; Brown v. Board of Education (1954), ending racial segregation in schools; Baker v. Carr (1962), recognizing judicial review of legislative apportionment; Engel v. Vitale (1962), ending prayer in schools; and New York Times v. Sullivan (1964), expanding the right of free speech.

Yet Black’s record includes writing the majority opinion in Korematsu v. United States (1944), the infamous case in which the Court upheld the federal government’s detention of Japansese-Americans during World War II. Even toward the end of his career, Black stood by the ruling: “I would do precisely the same thing today, in any part of the country. I would probably issue the same order were I President.” His dissenting votes in Griswold v. Connecticut (1965) and Tinker v. Des Moines (1969) further complicate his reputation among civil libertarians.

On August 28, 1971, the now-elderly Justice fell ill and was hospitalized. On September 17, he officially retired from the Supreme Court. On September 25, he passed away after suffering a stroke. After 34 years, the legal legend was finally done.

It is difficult to read about Hugo Black and not swell with pride. Despite choices personal and professional that may seem objectionable in the modern era, Black embodies an admirable commitment to the text and principles of the Constitution. Indeed, Black called himself a “literalist” when it came to constitutional interpretation, and he carried a copy of the Constitution in his pocket.

Why this religiosity? His words from a 1960 lecture sum it up nicely:

“I believe that our Constitution, with its absolute guarantee of individual rights, is the best hope for the aspirations of freedom which men share everywhere.”

Nicandro Iannacci is a consultant and former web strategist at the National Constitution Center.

 

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