Archives for posts with tag: Hugo Black

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.

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The layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.

Hugo Black[1]

[This is Larry. Why am I quoting the late Justice Hugo Black?[2] I’ll explain later. This blog is about the Hastert Rule, an obscure bit of procedure in the House of Representatives that supposedly allows the Speaker to block any appropriation he doesn’t like from ever coming to a vote. There’s a lot of uproar about that, but most of it is phony: i.e., a typical example of the misstatements, confusion and bogus constitutional arguments that the media and our politicians use to divert us from the real issues of the day. And why would they do that? Probably to fill air time, and look busy, while in truth nothing is happening. After all, the Government is shut down.

Anyway, I didn’t want to write about the phony stuff because I think it’s a waste of time; but apparently others around here don’t agree, and they’re giving me a headache. They think some of it is important. So I’ll make one more attempt to lift the fog in their minds and convince them otherwise. Breathe deeply, everybody, and focus your third eye. Clarity (hopefully) will be your reward.]

If you believe Wikipedia, the Hastert Rule is an “informal governing principle” Republican Speakers of the House use to maintain their leadership positions.[3] If Republicans are the majority of House members, they elect the Speaker. A Republican Speaker, to stay in the good graces of the membership, agrees that no legislation will go to the floor of the House unless a majority of House Republicans support it. So today, for example, if a majority of House Republicans want to shut down the Government by denying it funds, all they need to do is tell the Speaker to hold back on appropriations. No new appropriations equals no new spending authority, and workers go home.

So why do Republicans call this a “rule?” It sounds more like a working arrangement between consenting adults, designed for mutual advantage. Well, perhaps by calling it a rule Republicans think they can escape some of the opprobrium for shutting down the Government. After all, they’re only following the rules; people are supposed to do that kind of thing, aren’t they?

But then, of course, there’s Denny Hastert, the Republican Speaker who supposedly authored this “rule” in 2006, during a news conference. He says he never did such a thing. “Generally speaking,” he says, “I needed to have a majority of my majority, at least half of my conference [to introduce legislation]. This wasn’t a rule. I was speaking philosophically at the time…The Hastert Rule is kind of a misnomer.[4]

Fine, that should take care of that. There really is no “rule,” so we can stop talking about one. Are we done? Not really. The Left has a different take on the matter. House Republicans aren’t putting forward a clean bill, i.e., an appropriation without restrictions, and voting on it; and that’s probably unconstitutional. Why? Because a clean bill most likely would pass, even though a majority of Republicans might not like it. So the Democrats, currently the minority party in the House, have a Constitutional right to have their legislation voted on.

Sorry? How does that work? What Constitutional principle is at work here? Is it some new and novel interpretation of the due process clauses of the 5th and 14th Amendments? Or do we have simply an example of Justice Hugo Black’s theorem in action? That the Left deems the House’s failure to act to be unconstitutional because it [the Left] doesn’t like the results?

So far nobody seems to have told the Congress about any of this. The Constitution says “[e]ach House [of Congress] may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”[5] Both the House and the Senate have very extensive rule books to control their respective legislative processes. My guess is that neither has changed all that much in the last two centuries. The Senate, for example, still keeps Thomas Jefferson’s Manual of Parliamentary Practice around for handy reference[6].

In the House, after committee hearings, reports, etc. proposed legislation finds its way on to one Calendar or another for action.[7] But even so, the Speaker controls when or if action will be taken. “The scheduling of legislation for House floor action is the fundamental prerogative of the Speaker. Individual Representatives cannot easily circumvent, influence, or reverse leadership decisions about which measures should come to the floor.”[8]

Will the courts look over the Speaker’s shoulder when he does that sort of thing? I very much doubt it.

You see, the people who wrote our Constitution were very careful to draw some lines between the three coequal branches of our Government. With respect to legislation, each House of Congress determines “the Rules of its Proceedings;” no other branch has a vote. In general, the federal courts do not hear cases which deal directly with issues that the Constitution makes the sole responsibility of another branch.[9] So most likely the courts wouldn’t entertain a challenge to today’s voting procedures in the House of Representatives, or the Speaker’s failure to bring up legislation for a vote that is pleasing to Democrats. Those matters simply are not justiciable, because they belong to the House alone.

Anyway, that’s my opinion, and that’s why I think it was a waste of time to even write this blog, and bitterly resent being bludgeoned into doing so. Instead we should have been talking about the real politics in action in the shutdown, how shutdown tactics might be adapted in the future, the role of delusion and wish-fulfillment in the process, and things of that ilk. Hopefully we’ll get around to that important stuff next time.


[1] Hugo Black was a Supreme Court Justice during the Warren Court. This version is from Brainy Quote at http://www.brainyquote.com/quotes/quotes/h/hugoblack110604.html Normally I try to refer people to a better source than this, because Brainy Quote doesn’t even pretend to tell us where its material comes from. But Brainy Quote is accessible, which counts for something, and it seems to be more or less correct in the language. If you want to fuss around for a bit, you can find the original in an article written about an interview Justice Black gave to CBS back in 1968. See The Supreme Court Historical Society, Black, Hugo Black: A Memorial Portrait (1982, 2008), p. 120 – 159, available at http://www.supremecourthistory.org/wp-content/themes/supremecourthistory/inc/schs_publications-1982.pdf “But they [most Americans] think they know it [the Constitution]. 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.”  See Memorial Portrait at p. 148.

[2] If you want a bare bones biography of Hugo Black, you can get it from the Federal Judicial Center at http://www.fjc.gov/servlet/nGetInfo?jid=181&cid=0&ctype=sc&instate=na If you want to know more, take a look at the Wikipedia write-up, at http://en.wikipedia.org/wiki/Hugo_Black For his judicial philosophy, read Black, The Bill of Rights, a piece he  did for Vol. 35 of the NYU Law Journal (April, 1960); it’s reprinted at http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm#N_2_

[3] There’s a serviceable explanation in Wikipedia. You can find at http://en.wikipedia.org/wiki/Hastert_Rule

[4] See The Daily Beast, Clift, Denny Hastert Disses the ‘Hastert Rule’: It ‘Never Really Existed’ (October 3, 2013) (Italics added) at http://www.thedailybeast.com/articles/2013/10/03/denny-hastert-disses-the-hastert-rule-it-never-really-existed.html

[5] See U.S. Constitution, Art. I, Sec. 5, cl. 2. You can get a reliable transcript of this and other key documents from the National Archives, at http://www.archives.gov/exhibits/charters/

[6] Today that’s Senate Document 103-8. You too can have a copy. Just download it from http://www.senate.gov/artandhistory/history/resources/pdf/SDoc103-8.pdf Or you can buy it online. As usual, there are lots of people out there who are willing to sell you information that’s otherwise available for free.

[7] That’s pursuant to Rule 13 of the House Rules. Want to read Rule 13 or any of the others? Good luck. You can find the current rules in House Res. 5, 113th Cong., 1st Sess. (2013), available at http://docs.house.gov/billsthisweek/20121231/BILLS-113-HRes5ih_xml.pdf

[8] See Congressional Research Service, Schneider, House and Senate Rules of Procedure: A Comparison (updated 2008), p. CRS-3, available at http://www.senate.gov/reference/resources/pdf/RL30945.pdf

[9] See Baker v. Carr, 369 U.S. 186 (1962). See also Nixon v. United States, 506 U.S. 224 (1993).