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.’

Hugo Black[1]

[This is Larry, and I’m not here to talk about sociology and the law. I’ll leave that to others. But today I’ll supplement the last blog, the one by Phil, our resident philosopher, with some facts. Even in a blog it’s nice to have a few of those, isn’t it? In it Phil paraphrased a quote from Hugo Black, one of the great liberal justices of the mid-20th century Supreme Court. Unfortunately while the paraphrase was interesting, the original was nowhere to be found. Phil said he’d get back to you [us] when he found it [the original quote]. That job has fallen to me, because I know the source. You see, Justice Black said it, or something like it, on television in 1968, and I remember the program. But luckily I don’t have to rely on my aging grey cells for the details, because his wife memorialized the whole business in 1982[2].]

But before we get to that, let’s talk for a moment about the person. Hugo Black was an important judge in his day. He joined the Ku Klux Klan in his early days, but soon left it. He discussed all that business back in 1937[3] and pretty much didn’t address it again. I’ve always thought it’s a good thing when somebody who joins a radical group changes his [or her] mind. I certainly don’t think Justice Black did anything wrong by dropping out. People make mistakes, and then correct them. For sure, that’s better than doing nothing.

As a judge he was famous for having said that there are absolutes in the Bill of Rights, although he never said that the whole thing was. “[I] did not say that our entire Bill of Rights is an absolute.”[4] But he did think, for example, that the part of the First Amendment that said “Congress shall make no law respecting any establishment of religion,[5]” was pretty much that way. “Now if a man were to say this to me out on the street … I would think: Amen. Congress shall pass no law. Unless they [the Founders] just didn’t know the meaning of words. That’s what they mean to me. Certainly they mean that literally.”[6]

Justice Black took much the same approach to pornography, which he saw as unsavory and poorly defined, but still opinion speech fully protected by the First Amendment[7]; and to the accused’s right not to incriminate him[or her]self, protected by the Fifth. These decisions were unpopular with many and as a result, the Court [and Justice Black] got a lot of negative mail. Are you surprised?

Don’t be. Even today Conservatives on AM Talk Radio complain about the Fifth Amendment and how it protects an accused, and Liberals don’t seem to care for the First Amendment very much. They really detest speech that offends them, especially if it’s uttered by President Trump. Conservatives also complain about Justice Black’s Klan membership, as though that somehow vitiates all of his subsequent legal work. “Because you once belonged to a bad organization, you never can have an opinion on something important that disagrees with mine?” Interesting argument.

But enough of that! We’re still looking for the famous quote that nobody can find. Well, here it is:

When Justice Black was asked about his negative mail – i.e., about the stuff he received – he answered what could have been a softball question with precision. “Do you think, Mr. Justice, that most Americans understand the Constitution?” He said: “No.”

I think most of them do not. I think most of them are sure they do—better than the Court. People don’t know it. I get letters all the time; I get many letters. People who don’t have a good idea of grammar; they’re certainly not good letter writers, and they’re telling me that “You ought to get off the Court and—.” Some of them tell me to go to Russia. “Go back to Russia.” Well, that’s too far for me to go back since I’ve never been there. But they think they know it. And their idea is all the same. You can trace it to the same thing, doesn’t make a difference what it is, what their experience is, or why they’re mad at the Court. It’s all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted.[8]

So there we have it: The famous quote that Phil couldn’t find, but paraphrased anyway. Justice Black sure didn’t mess around, did he? Make of it what you will.

[Larry is signing out and leaving the building.]

 

 

 

 

[1] See The Supreme Court Historical Society, Publications, 1982 Yearbook (2008) at Hugo Black, A Memorial Portrait, p. 120, 148 . This will be cited as Memorial Portrait at p.  __.

[2] Id.

[3] See Memorial Portrait at p. 133. He discussed it in a radio address in 1937, and decided not to “raise the topic” again. “That is the subject I do not intend to revive. The newspapers do enough of that.”

[4] See Memorial Portrait at p. 127.

[5] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[6] See Memorial Portrait at p. 127, 128.

[7] See n. 3.

[8] See Memorial Portrait at p. 148.