Friday, February 22, 2008

Hugo Black
2) Elizabeth Seay DeMeritte (his death)
Hugo LaFayette Black (February 27, 1886September 25, 1971) was an American politician and jurist. A member of the Democratic Party, Black represented the state of Alabama in the United States Senate from 1926 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Widely regarded as one of the most influential Supreme Court justices in the 20th century, he was nominated by President Franklin D. Roosevelt and confirmed by the Senate by a vote of 63 to 13.
The fourth longest-serving justice in Supreme Court history, Black is noted for his advocacy of a literalist reading of the United States Constitution and of the position that the liberties guaranteed in the Bill of Rights were imposed on the states ("incorporated") by the Fourteenth Amendment. His jurisprudence has been the focus of much discussion. Because of his insistence on a strict textual analysis of Constitutional issues, as opposed to the process-oriented jurisprudence of many of his colleagues, it is difficult to characterize Black as a liberal or a conservative as those terms are generally understood in the current political discourse of the United States. On the one hand, his literal reading of the Bill of Rights and his theory of incorporation often translated into support for strengthening civil rights and civil liberties. On the other hand, Black consistently opposed the doctrine of substantive due process and believed that there was no constitutionally-protected right to privacy.

Early years
In the 1920s, the Ku Klux Klan, revived after a half century of dormancy due in part to the release of The Birth of a Nation, became a dominant force in the politics of Alabama, as well as the politics of much of the rest of the South and several Northern states and the national Democratic Party. In those years, there were as many as 85,000 members of the Ku Klux Klan in Alabama, where it was the state's dominant political force.
On August 11, 1921, Black was asked to defend the Reverend Edwin R. Stephenson, a Klansman who had been accused of shooting to death Rev. James Coyle, leader of the large Catholic community at Saint Paul's Parish in Birmingham, in a trial where the presiding judge, as well as several members of the jury, were Klansmen. Black is reported to have approached prosecution witnesses with the question "You're a Catholic, aren't you?" in an attempt to discredit them before the Klan-dominated jury.

Ku Klux Klan controversy
In 1926, Black sought election to the United States Senate from Alabama, following the retirement of Senator Oscar Underwood. Since the Democratic Party dominated Alabama politics at the time, he easily defeated his Republican opponent, E. H. Dryer, winning 80.9% of the vote. He was reelected in 1932, winning 86.3% of the vote against Republican J. Theodore Johnson.
In 1935, Black became chairman of the Senate Committee on Education and Labor, a position he would hold for the remainder of his Senate career. In 1937 he sponsored the Black-Connery Bill, which sought to establish a national minimum wage and a maximum workweek of forty hours. Although the bill was initially rejected in the House of Representatives, a weakened version passed in 1938 (after Black left the Senate), becoming the Fair Labor Standards Act.
Black was an ardent supporter of President Franklin D. Roosevelt and the New Deal. In particular, he was an outspoken advocate of the Judiciary Reorganization Bill of 1937, popularly known as the court-packing bill, FDR's unpopular and unsuccessful plan to stack a hostile Supreme Court in his favor by adding more associate justices.

Hugo Black Senate career
Soon after the failure of the court-packing plan, President Roosevelt obtained his first opportunity to appoint a Supreme Court Justice when conservative Willis Van Devanter retired. On August 12, 1937, Roosevelt nominated Black to fill the vacancy. By tradition, a senator nominated for an executive or judicial office was confirmed immediately and without debate. However, when Black was nominated, the Senate departed from this tradition for the first time since 1888; instead of confirming him immediately, it referred the nomination to the Judiciary Committee.
Republican Senator Warren Austin, himself a member of that committee, objected to Black's nomination on constitutional grounds. Article I, Section 6 of the United States Constitution provides that "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time." In other words, senators and representatives may not resign to take newly created offices or higher-paying political offices; rather, they must wait until the conclusion of their terms. Austin argued that since retirement benefits for Supreme Court Justices over 70 had recently been increased, Black was constitutionally barred from taking the post. Black's defenders responded that he was then 51 and would not receive the increased pension until he turned seventy — long after his senatorial term would have expired. Ultimately, Austin's objections were set aside, and the Judiciary Committee recommended Black's confirmation by a vote of 13–4 on August 16 of that year.
Beginning in the late 1940s, Black wrote for the Court in several cases relating to the establishment clause, where it had historically insisted on the strict separation of church and state. The most notable of these was Engel v. Vitale (1962), which declared state-sanctioned prayer in public schools unconstitutional. This provoked considerable opposition, especially in the South. Some members of Congress even attempted to restore school prayer by constitutional amendment, efforts which have continued to the present day.
In 1953 Vinson died and was replaced by Earl Warren. Black was often regarded as a member of the liberal wing of the Court, together with Warren, Douglas, William Brennan, and Arthur Goldberg. Yet while he often voted with them on the Warren Court, he occasionally took his own line on some key cases, most notably Griswold v. Connecticut (1965), which established that the Constitution protected a right to privacy. Black's most prominent ideological opponent on the Warren Court was John Marshall Harlan II, who replaced Justice Jackson in 1955. Black and Harlan disagreed on several issues, including the applicability of the Bill of Rights to the states, the scope of the due process clause, and the one man, one vote principle. (For more details, see Jurisprudence below.)

Supreme Court career
Black's jurisprudence is among the most distinctive of any member of the Supreme Court in history and has been the subject of voluminous academic commentary. While very few people other than Black himself have adopted Black's jurisprudential views tout court, Black's philosophy of judging has been influential on justices as diverse as Earl Warren and Antonin Scalia.
Black was noted for his advocacy of a textualist approach to constitutional interpretation. He took a "literal" or absolutist reading of the provisions of the Bill of Rights and believed that the text of the Constitution is absolutely determinative on any question calling for judicial interpretation, leading to his reputation as a "textualist" and as a "strict constructionist". While the text of the constitution was an absolute limitation on the authority of judges in constitutional matters, within the confines of the text judges had a broad and unqualified mandate to enforce constitutional provisions, regardless of current public sentiment.
Thus, Black refused to join in the efforts of the justices on the Court who sought to abolish capital punishment in the United States, whose efforts succeeded (temporarily) in the term immediately following Black's death. He claimed that the Fifth and Fourteenth Amendment's reference to takings of "life" meant approval of the death penalty was implicit in the Bill of Rights. He also was not persuaded that a right of privacy was implicit in the Ninth or Fourteenth amendments, and dissented from the Court's 1965 Griswold decision which invalidated a conviction for the use of contraceptives.
Justice Black rejected reliance on what he called the "mysterious and uncertain" concept of natural law. According to Black that theory was vague and arbitrary, and merely allowed judges to impose their personal views on the nation. Instead, he argued that courts should limit themselves to a strict analysis of the actual text of the Constitution. Black was, in addition, an opponent of the "living constitution" theory. In his dissent to Griswold (1965), he wrote:
I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.
Thus, some have seen Black as an originalist. But, unlike modern originalists, Black often did not look to or ignored the "original intention" or "original meaning" of the words in the Constitution. He believed that the meaning of the words was not "frozen" by what they meant in 1789, but rather that the words were to be interpreted by their literal contemporary meaning. So Black often reached results substantially at odds with evidence of the "original meaning" of specific provisions in the Constitution. Thus commentators have usually characterized Black as an "interpretivist," one who believes that the meaning of the Constitution can only be derived from the text itself or the "four corners" of the document, as opposed to a "noninterpretivist," who looks to concepts not contained within the document itself for guidance (i.e. natural law, notions of "fairness," or economic theory). Still, Black's rejection of vague or subjective constitutional tests and his insistence on interpreting the constitutional text itself ties him to the later originalists.

Like the other Justices appointed by President Roosevelt, Black held an expansive view of federal power, especially under the commerce clause. Previously, during the 1920s and 1930s, the Court had interpreted this clause narrowly, often striking down laws on the grounds that Congress had overstepped its authority. After 1937, however, the Supreme Court overturned several precedents and affirmed a broader interpretation of the commerce clause. Black consistently voted with the majority in these decisions; for example, he joined Mulford v. Smith, 307 U.S. 38 (1939), United States v. Darby Lumber Co., 312 U.S. 100 (1941), Wickard v. Filburn, 317 U.S. 111 (1942), Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).
In several other federalism cases, however, Black ruled against the federal government. For instance, he partially dissented from South Carolina v. Katzenbach, 383 U.S. 301 (1966), in which the Court upheld the validity of the Voting Rights Act of 1965. In an attempt to protect the voting rights of African Americans, the act required any state whose population was at least 5% African American to obtain federal approval before changing its voting laws. Black wrote that the law,
.. by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.

During his tenure on the bench, Black established a record sympathetic to the civil rights movement. He joined the majority in Shelley v. Kramer (1948), which invalidated the judicial enforcement of racially restrictive covenants. Similarly, he was part of the unanimous Brown v. Board of Education (1954) Court that struck down racial segregation in public schools. He was burnt in effigy by segregationists back in Alabama.
However, he also wrote the court's majority opinion in Korematsu v. United States, which validated Roosevelt's decision to intern Japanese Americans on the West Coast during World War II, a decision roundly criticized today. He stated that, while race-based internment was "constitutionally suspect", it was permissible during "circumstances of direst emergency and peril." In dissent Justice Frank Murphy accused the government of "fall[ing] into the ugly abyss of racism."

Civil Rights
Black took an absolutist approach to First Amendment jurisprudence, as reflected by his famous aphorism, "No law means no law." As a result, he often found himself in dissent, although he was usually joined by Justice William O. Douglas. However, his interpretation of the establishment clause was (for the most part) shared by his colleagues, especially during the tenure of Chief Justice Warren.
Black took a dim view of government entanglement with religion. He believed that the First Amendment erected a "wall of separation" between church and state. During his career Black wrote several important opinions relating to church-state separation. He delivered the opinion of the court in Everson v. Board of Education (1947), which held that the establishment clause was applicable not only to the federal government, but also to the states. His majority opinion in McCollum v. Board of Education (1948) held that the government could not provide religious instruction in public schools. In Torcaso v. Watkins (1961), he delivered an opinion which affirmed that the states could not use religious tests as qualifications for public office. Similarly, he authored the majority opinion in Engel v. Vitale (1962), which declared it unconstitutional for states to require the recitation of official prayers in public schools.
Justice Black is often regarded as a leading defender of First Amendment rights such as the freedom of speech and of the press. He refused to accept the doctrine that the freedom of speech could be curtailed on national security grounds. Thus, in New York Times Co. v. United States (1971), he voted to allow newspapers to publish the Pentagon Papers despite the Nixon Administration's contention that publication would have security implications. In his concurring opinion, Black stated,
"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment." Similarly, he dissented from Cohen v. California (1971), in which the Court held that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. He agreed that this activity "was mainly conduct, and little speech."

First Amendment
Black adopted a narrower interpretation of the Fourth Amendment than many of his colleagues on the Warren Court. He dissented from Katz v. United States (1967), in which the Court held that warrantless wiretapping violated the Fourth Amendment's guarantee against unreasonable search and seizure. However, he argued that the Fourth Amendment only protected tangible items from physical searches or seizures. Thus, he concluded that telephone conversations were not within the scope of the amendment, and that warrantless wiretapping was consequently permissible.
Justice Black originally believed that the Constitution did not require the exclusion of illegally seized evidence at trials. In his concurrence to Wolf v. Colorado (1949), he claimed that the exclusionary rule was "not a command of the Fourth Amendment but ... a judicially created rule of evidence."
In other instances Black took a fairly broad view of the rights of criminal defendants. He joined the Supreme Court's landmark decision in Miranda v. Arizona (1966), which required law enforcement officers to warn suspects of their rights prior to interrogations, and consistently voted to apply the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments at the state level.
Black was the author of the landmark case Gideon v. Wainwright, which ruled that the states must provide an attorney to an indigent criminal defendant who cannot afford one. Before Gideon, the Court had held that such a requirement applied only to the federal government.

Criminal procedure
One of the most notable aspects of Justice Black's jurisprudence was the view that the entirety of the federal Bill of Rights was applicable to the states. Originally, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (1833). According to Black, the Fourteenth Amendment, ratified in 1868, "incorporated" the Bill of Rights, or made it binding upon the states as well. In particular, he pointed to the Privileges or Immunities Clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." He proposed that the term "privileges or immunities" encompassed the rights mentioned in the first eight amendments to the Constitution.
Black first expounded this theory of incorporation when the Supreme Court ruled in Adamson v. California (1947) that the Fifth Amendment's guarantee against self-incrimination did not apply to the states. In an appendix to his dissenting opinion, Justice Black analyzed statements made by those who framed the Fourteenth Amendment, reaching the conclusion that "the Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain application of the Bill of Rights to the states."
This theory sparked an extended debate within the Court and the academic legal community. It attracted the support of Justices such as Frank Murphy and William O. Douglas. However, it never achieved the support of a majority of the Court. The most prominent opponents of Black's theory were Justices Felix Frankfurter and John Marshall Harlan II. Frankfurter and Harlan argued that the Fourteenth Amendment did not incorporate the Bill of Rights per se, but merely protected rights that are "implicit in the concept of ordered liberty," which was the standard Justice Cardozo had established earlier in Palko v. Connecticut.
The Supreme Court never accepted the argument that the Fourteenth Amendment incorporated the entirety of the Bill of Rights. However, it did agree that some "fundamental" guarantees were made applicable to the states. For the most part, during the 1930s, 1940s, and 1950s, only First Amendment rights (such as free exercise of religion and freedom of speech) were deemed sufficiently fundamental by the Supreme Court to be incorporated.
However, during the 1960s, the Court under Chief Justice Warren took the process much further, making almost all guarantees of the Bill of Rights binding upon the states. Thus, although the Court failed to accept Black's theory of total incorporation, the end result of its jurisprudence is very close to what Black advocated. Today, the only parts of the first eight amendments that have not been extended to the states are the Second, Third and Seventh amendments and the grand jury clause of the Fifth.

Due process clause
Black was one of the Supreme Court's foremost defenders of the "one man, one vote" principle. He delivered the opinion of the court in Wesberry v. Sanders (1964), holding that the Constitution required congressional districts in any state to be approximately equal in population. He concluded that the Constitution's command "that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."

Voting rights
Justice Black admitted himself to the National Naval Medical Center in Bethesda, Maryland, on August 28, 1971, and subsequently retired from the Court on September 17. He suffered a stroke two days later and died on September 25. He was buried at the Arlington National Cemetery. Black had served on the Supreme Court for thirty-four years, making him the fourth longest-serving Justice in Supreme Court history.
President Richard Nixon first considered nominating Hershel Friday to fill the vacant seat, but changed his mind after the American Bar Association found Friday unqualified. Nixon then nominated Lewis Powell, who was confirmed by the Senate.
In 1986 Black appeared on a postage stamp issued by the United States Postal Service. He is one of only three Associate Justices to do so; the other two are Oliver Wendell Holmes, Jr. and Thurgood Marshall. In 1987, Congress passed a law designating the new courthouse building for the U.S. District Court for the Northern District of Alabama in Birmingham, as the "Hugo L. Black United States Courthouse."
An extensive collection of Black's personal, senatorial, and judicial papers is archived at the Manuscript Division of the Library of Congress, where it is open for research.
Justice Black is honored in an exhibit in the Bounds Law Library at the University of Alabama School of Law.

Retirement and death

"The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government." From New York Times Co. v. United States. Quotes about Black