Hugo Black

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Hugo Black
Associate Justice of the United States Supreme Court
In office August 19, 1937 – September 18, 1971
Nominated by	Franklin Delano Roosevelt
Preceded by	Willis Van Devanter
Succeeded by	Lewis Franklin Powell, Jr.
United States Senator from Alabama
In office March 4, 1927 – August 19, 1937
Preceded by	Oscar W. Underwood
Succeeded by	Dixie B. Graves
Born	February 27, 1886(1886-02-27) Harlan, Alabama
Died	September 25, 1971 (aged 85) Bethesda, Maryland
Political party	Democratic (Senate term)
Spouse	(1) Josephine Foster (deceased) (2) Elizabeth Seay DeMeritte (his death)

Hugo LaFayette Black (February 27, 1886–September 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. He was first of nine Roosevelt nominees to the Court,^[1] and with the exception of William O. Douglas, he outlasted them all.^[2]

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.

Contents 1 Early years 2 Ku Klux Klan membership 3 Senate career 4 Supreme Court career 5 Jurisprudence 5.1 Federalism 5.2 Civil Rights 5.3 First Amendment 5.4 Criminal procedure 5.5 Incorporation 5.6 Due process clause 5.7 Voting rights 6 Retirement and death 7 Quotes by Black 8 Quotes about Black 9 References 10 Additional reading 11 External links

[edit] Early years

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Hugo LaFayette Black was the youngest of the eight children of William Lafayette Black and Martha Toland Black. He was born on February 27, 1886, in a small wooden farmhouse in Ashland, Alabama, a poor, isolated rural Clay County town in the Appalachian foothills.

Because his brother Orlando had become a medical doctor, Hugo decided at first to follow in his footsteps. At age seventeen, he left school in Ashland and enrolled in the 1902–03 term at Birmingham Medical School. However, it was Orlando who suggested that Hugo should enroll at the University of Alabama School of Law. After graduating in June 1906, he moved back to Ashland and established a legal practice above a grocery. His legal practice was not a success, and a year and a half after it had opened, the entire building burned to the ground. Black then moved back to Birmingham in 1907 to continue his law practice, and came to specialize in labor law and personal injury cases.

Following his defense of an African American forced into a form of commercial slavery following incarceration, Black was befriended by A. O. Lane, a judge connected with the case. When Lane was elected to the Birmingham City Commission in 1911, he asked Black to serve as a police court judge, an experience that would be his only judicial experience prior to the Supreme Court. In 1912, Black resigned that seat in order to return to practicing law full-time. He was not done with public service; in 1914, he began a four-year term as the Jefferson County Prosecuting Attorney.

Three years later, during World War I, Black resigned in order to join the United States Army. He enrolled in the Officers Training School at Fort Oglethorpe, Georgia, eventually reaching the rank of captain. He served in the 81st Field Artillery Unit near Chattanooga, Tennessee, but never participated in armed combat. In September 1918, shortly before the war ended, he returned to his practice in Birmingham.^[3]

On February 23, 1921, he married Josephine Foster (1899-1951), with whom he would have three children: Hugo L. Black, II (b. 1922), an attorney; Sterling Foster (b. 1924), and Martha Josephine (b. 1933). His grandson, Hugo L. Black, III, would serve in the Florida House of Representatives and be an Assistant U.S. Attorney. The couple remained married until Josephine died after a long illness on December 6, 1951. In 1957, Black married Elizabeth Seay DeMeritte.

[edit] Ku Klux Klan membership

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.^{[citation needed]} In those years, there were as many as 85,000 members of the Ku Klux Klan in Alabama, where it was one of the state's important political forces along with the temperance movement and unions.^[4]

On August 11, 1921, Black received Klan money 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. 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. The jury ultimately acquitted Stephenson. "He was not beyond exploiting an emotional feeling based on race," his son Hugo Jr. wrote.^[5] Many scholars, such as Daniel L. Dreisbach, John T. McGreevy, and Philip Hamburger, believe that Hugo Black's later support for a separation of church and state was based on such an anti-Catholic animus.^[6]

Black became a member of the Robert E. Lee Klan No. 1, a branch of the Ku Klux Klan in Birmingham, in 1923.^[7] He claimed that he remained in the KKK only until 1925, and during that time attended no more than four meetings before his resignation. However, in 1926, he not only attended a State Convention of the KKK but addressed the delegates as well. He was also Kladd of his Klavern, meaning that he administered the initiation oath to new members (which upheld, among other things, "separation of church and state" and "white supremacy").^[8] The published version of the Hugo Black Symposium reports, "Some of those who knew [Black] offered additional reasons for his joining. Herman Beck, a leading Jewish merchant in Birmingham encouraged his young friend Black to become a Klansman so that he could help contain the trouble-making element just coming to the fore of the organization in Alabama."^[9]

Black's Klan membership was reported shortly after his appointment to the Supreme Court.^[10] His political allies argued that he joined the Klan simply out of necessity, and Black stuck with that story for the rest of his life.^[11] However, the low electoral importance of a Klan endorsement in 1926, coupled with Black's sometimes rebellious conduct within the Klan, show that political expediency does not explain Black's membership. The most plausible reason for the alliance was that both Black and the Klan strongly opposed the Catholic Church.^[12]

One persisting controversy is whether Franklin Delano Roosevelt knew of Black's Klan membership when he appointed him to the Supreme Court. It appears that he did. He wrote to a friend, "I’ve felt from the beginning of all this Klan talk that perhaps he did belong to the Klan--but that did not necessarily mean that he might not make a very great Judge on the Supreme Court--On verra!"^[13]

[edit] Senate career

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.^[14]

Senator Black gained a reputation as a tenacious investigator. In 1934, for example, he chaired the committee that looked into the contracts awarded to air mail carriers under Postmaster General Walter Folger Brown, an inquiry which led to the Air Mail Scandal. In order to correct what he termed abuses of "fraud and collusion" resulting from the Air Mail Act of 1930, he introduced the Black-McKellar Bill, later the Air Mail Act of 1934. The following year he participated in a Senate committee's investigation of lobbying practices. He publicly denounced the "highpowered, deceptive, telegram-fixing, letterframing, Washington-visiting" lobbyists, and advocated legislation requiring them to publicly register their names and salaries.^[15]

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 thirty hours.^{[citation needed]} 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.^{[citation needed]} 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.^{[citation needed]}

[edit] Supreme Court 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.^{[citation needed]} 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.^{[citation needed]}

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.^[7]

The next day the full Senate considered Black's nomination. Rumors relating to Black's involvement in the Ku Klux Klan surfaced, and Democratic Senators Royal S. Copeland and Edward R. Burke urged the Senate to defeat the nomination. However, no conclusive evidence of Black's involvement was available at the time, so after six hours of debate, the Senate voted 63-13 to confirm Black.^[7] He resigned from the Senate and was sworn in as an Associate Justice three days later. Alabama Governor Bibb Graves appointed his wife, Dixie B. Graves, to fill Black's vacated seat.

The next month, the Pittsburgh Post-Gazette investigated Black's KKK past.^{[citation needed]} Ray Sprigle won a Pulitzer Prize for his series of articles revealing Black's involvement in the Klan. Facing an inflamed public, Black delivered a nationally broadcast radio address in which he explained his decision to join and subsequently resign from the KKK.^[7] Despite this address, press criticism continued. However, the controversy soon subsided, in part because Justice Black quickly established a record sympathetic to African Americans and the civil rights movement.^{[citation needed]} Chambers v. Florida (1940), where he ruled in favor of African American defendants put most of those concerns to rest.

During his early years on the Supreme Court, Black helped reverse several earlier court decisions taking a narrow interpretation of federal power. Many New Deal laws that would have been struck down under earlier precedents were thus upheld.^{[citation needed]} In 1939 Black was joined on the Supreme Court by Felix Frankfurter and William O. Douglas. Douglas voted alongside Black in several cases, especially those involving the First Amendment, while Frankfurter soon became one of Black's ideological foes.^{[citation needed]}

In the mid-1940s, Justice Black became involved in a bitter dispute with Justice Robert H. Jackson as a result of Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers (1945).^{[citation needed]} In this case the Court ruled 5–4 in favor of the UMW; Black voted with the majority, while Jackson dissented. However, the coal company requested the Court rehear the case on the grounds that Justice Black should have recused himself, as the mine workers were represented by Black's law partner of 20 years earlier. Under the Supreme Court's rules, each Justice was entitled to determine the propriety of disqualifying himself.

Jackson agreed that the petition for rehearing should be denied, but refused to give "blind and unqualified approval" to Black's participation in the case.^{[citation needed]} Ultimately, when the Court unanimously denied the petition for rehearing, Justice Jackson released a short statement, in which Justice Frankfurter joined. The concurrence indicated that Jackson voted to deny the petition not because he approved of Black's participation in the case, but on the "limited grounds" that each Justice was entitled to determine for himself the propriety of recusal.^[16] At first the case attracted little public comment, however, after Chief Justice Harlan Stone died in 1946, rumors that President Harry S Truman would appoint Jackson as Stone's successor led several newspapers to investigate and report the Jewell Ridge controversy.^{[citation needed]} Black and Douglas allegedly leaked to newspapers that they would resign if Jackson were appointed Chief.^{[citation needed]} Truman ultimately chose Fred M. Vinson for the position.

Vinson's tenure as Chief Justice coincided with the Red Scare, a period of intense anti-communism in the United States.^{[citation needed]} In several cases the Supreme Court considered, and upheld, the validity of anticommunist laws passed during this era. For example, in American Communications Association v. Douds (1950), the Court upheld a law that required labor union officials to forswear membership in the Communist Party. Black dissented, claiming that the law violated the First Amendment's free speech clause. Similarly, in Dennis v. United States, 341 U.S. 494 (1951), the Court upheld the Smith Act, which made it a crime to "advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States." The law was often used to prosecute individuals for joining the Communist Party. Black again dissented, writing:

"Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society."^[17]

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.^{[citation needed]} Some members of Congress even attempted to restore school prayer by constitutional amendment, efforts which have continued to the present day.^[18]

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.^{[citation needed]} 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.^{[citation needed]} 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.)

[edit] Jurisprudence

This section does not cite any references or sources. (October 2007) Please help improve this section by adding citations to reliable sources. Unverifiable material may be challenged and removed.

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.^[19]

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.

[edit] Federalism

Like the other Justices appointed by President Roosevelt, Black held an expansive view of federal power, especially under the commerce clause.^{[citation needed]} 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.^{[citation needed]} 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.^[20]

Similarly, in Oregon v. Mitchell (1970), he delivered the opinion of the court holding that the federal government was not entitled to set the voting age for state elections.

In the law of federal jurisdiction, Black made a large contribution by authoring the majority opinion in Younger v. Harris. This case, decided during Black's last year on the Court, has given rise to what is now known as Younger abstention. According to this doctrine, an important principle of federalism called "comity"—that is, respect by federal courts for state courts—dictates that federal courts abstain from intervening in ongoing state proceedings, absent the most compelling circumstances.^{[citation needed]} The case is also famous for its discussion of what Black calls "Our Federalism," a discussion in which Black expatiates on

proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.^[21]

[edit] Civil Rights

Earlier in his career, first as an active member in the Ku Klux Klan and then as a senator who filibustered an anti-lynching bill,^[22] Black did not appear to be progressive on the issue of race. But during his tenure on the bench, Black established a record more 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.^{[citation needed]}

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. He stated that, while race-based internment was "constitutionally suspect", it was permissible during "circumstances of direst emergency and peril." The decision is roundly criticized today. Issuing a rare writ of coram nobis, a district court in 1984 vacated Korematsu’s conviction. “As a legal precedent is is now recognized as having very limited application. As historical precedent it stands as a constant caution...”^[23] In dissent Justice Frank Murphy accused the government of "fall[ing] into the ugly abyss of racism."

Black also tended to favor law and order over civil rights activism.^[24] This led him to read the Civil Rights Act narrowly. For example, he dissented in a case reversing convictions of sit-in protesters, arguing to limit the scope of the Civil Rights Act.^[25] In 1968 he said, “Unfortunately there are some who think that Negroes should have special privileges under the law.”^[26]

[edit] First Amendment

Black took an absolutist approach to First Amendment jurisprudence, as reflected by his famous aphorism, "No law means no law."^{[citation needed]} As a result, he often found himself in dissent, although he was usually joined by Justice William O. Douglas.^{[citation needed]} However, his interpretation of the establishment clause was (for the most part) shared by his colleagues, especially during the tenure of Chief Justice Warren.

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.^{[citation needed]} 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."^[27]

He rejected the idea that the government was entitled to punish "obscene" speech.^{[citation needed]} Likewise, he argued that defamation laws abridged the freedom of speech and were therefore unconstitutional.^{[citation needed]} Most members of the Supreme Court rejected both of these views;^{[citation needed]} Black's interpretation did attract the support of Justice Douglas.

However, he did not believe that individuals had the right to speak wherever they pleased. He delivered the majority opinion in Adderley v. Florida (1966), controversially upholding a trespassing conviction for protestors who demonstrated on government property. He also dissented from Tinker v. Des Moines (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in schools, writing,

While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.^[28]

Moreover, Black took a narrow view of what constituted "speech" under the First Amendment. For example, he did not believe that flag burning was speech; in Street v. New York (1969), he wrote: "It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense."^[29] 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."

[edit] Criminal procedure

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."^[30] But he later changed his mind and joined the majority in Mapp v. Ohio (1961), which applied it to state as well as federal criminal investigations. In his concurrence, he indicated that his support was based on the Fifth Amendment's guarantee of the right against self-incrimination, not on the Fourth Amendment's guarantee against unreasonable searches and seizures. He wrote, "I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence ... seized ... in violation of its commands."^[31]

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.

[edit] Incorporation

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.^{[citation needed]}

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."^[32]

This theory sparked an extended debate within the Court and the academic legal community.^{[citation needed]} 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.^{[citation needed]} 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.^{[citation needed]} 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.^{[citation needed]} 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.^{[citation needed]}

[edit] Due process clause

Justice Black was well-known for his rejection of the doctrine of substantive due process. Most Supreme Court Justices accepted the view that the due process clause encompassed not only procedural guarantees, but also "fundamental fairness" and fundamental rights. Thus, it was argued that due process included a "procedural" component as well as a "substantive component."^{[citation needed]}

Black, however, believed that this interpretation of the due process clause was unjustifiably broad. In his dissent to Griswold, he charged that the doctrine of substantive due process "takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination."^[19] Instead, Black advocated a much narrower interpretation of the clause. In his dissent to In re Winship, he analyzed the history of the term "due process of law", and concluded: "For me, the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions."^[33]

None of Black's colleagues shared this interpretation of the due process clause.^{[citation needed]} Harlan in particular was highly critical of it, indicating his "continued bafflement at my Brother Black's insistence that due process ... does not embody a concept of fundamental fairness" in his Winship concurrence.^[34] Since Black's death the Court has continued to apply the doctrine of substantive due process (most notably in Roe v. Wade, which proclaimed that abortion was a constitutionally protected right), and on the present Court, only Justices Antonin Scalia and Clarence Thomas are on record as explicitly and categorically rejecting it, as did Black.^{[citation needed]}

[edit] Voting rights

Black was one of the Supreme Court's foremost defenders of the "one man, one vote" principle.^{[citation needed]} 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."^[35] Likewise, he voted in favor of Reynolds v. Sims (1964), which extended the same requirement to state legislative districts on the basis of the equal protection clause.

At the same time, Black did not believe that the equal protection clause made poll taxes unconstitutional. Thus, he dissented from the Court's ruling in Harper v. Virginia Board of Elections (1966) invalidating the use of the poll tax as a qualification to vote. He criticized the Court for exceeding its "limited power to interpret the original meaning of the Equal Protection Clause" and for "giving that clause a new meaning which it believes represents a better governmental policy."^[36]

[edit] Retirement and death

This section does not cite any references or sources. (October 2007) Please help improve this section by adding citations to reliable sources. Unverifiable material may be challenged and removed.

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.

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.^[37] 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.^[38]

Justice Black is honored in an exhibit in the Bounds Law Library at the University of Alabama School of Law. A special Hugo Black collection is maintained by the library. ^[39]

Black served on the Supreme Court for thirty-four years, making him the fourth longest-serving Justice in Supreme Court history. He was the senior (longest serving) justice on the court for an unprecedented twenty-five years, from the death of Chief Justice Stone on April 22, 1946 to his own retirement on September 17, 1971. As the longest-serving associate justice, he was acting Chief Justice from Stone's death until Vinson took office on June 24, 1946 and from Vinson's death on September 8, 1953 until Warren took office on October 5, 1953. There was no interregnum between the Warren and Burger courts in 1969.

[edit] Quotes by Black

• "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.^[40]

[edit] Quotes about Black

• "Rarely cited by the Supreme Court today, Justice Black is generally viewed by the Court (as he was by Bickel) as too 'absolutist,' too unyielding, too unresponsive to other societal needs. But the Pentagon Papers case may, even now, best be recalled in Justice Black's opinion, the last he would write on the Court." Floyd Abrams.^[41]

[edit] References

[edit] Additional reading

• Ball, Howard. (1992). Of Power and Right : Hugo Black, William O. Douglas, and America's Constitutional Revolution. New York: Oxford University Press. ISBN 9780195046120, ISBN 0195046129.
• Ball, Howard. (1996). Hugo L. Black: Cold Steel Warrior. New York: Oxford University Press. ISBN 0195078144; ISBN 0-19-507814-4.
• Ball, Howard and Phillip J. Cooper. (1992) . Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution. New York: Oxford University Press.
• Ball, Howard. (1975). The Vision and the Dream of Justice Hugo L. Black: An Examination of a Judicial Philosophy. University, AL: University of Alabama Press.
• Black, Hugo L. (1968). A Constitutional Faith. New York, Knopf.
• Black, Hugo L and Elizabeth Black. (1985). Mr. Justice Black and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black. New York: Random House, 1985.
• Black, Hugo, Jr. (1975). My Father: A Remembrance. New York: Random House.
• Dunne, Gerald T. (1977). Hugo Black and the Judicial Revolution. New York: Simon Schuster.
• Frank, John Paul. (1949). Mr. Justice Black, the Man and His Opinions. New York: Alfred A. Knopf.
• Frank, John P., The Justices of the United States Supreme Court: Their Lives and Major Opinions (Leon Friedman and Fred L. Israel, editors) (Chelsea House Publishers: 1995) ISBN 0791013774, ISBN 978-0791013779
• Freyer, Tony Allen. (1990). Hugo L. Black and the Dilemma of American Liberalism. Glenview, IL: Scott, Foresman. ISBN 9780817311940.
• Freyer, Tony Allan, ed. (1990). Justice Hugo Black and Modern America. Tuscaloosa, AL: University of Alabama Press. ISBN 0817311947
• Hamilton, Virginia Van der Veer. (1972). Hugo Black: The Alabama Years. Baton Rouge: Louisiana State University Press.
• Hockett, Jeffrey D. (1996). New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurther, and Robert H. Jackson. Lanham, MD: Rowman & Littlefield Publishers. ISBN 0847682102 ISBN 9780847682102
• Magee, James J. (1980). Mr. Justice Black, Absolutist of the Court. Charlottesville: University Press of Virginia. ISBN 1-58838-144-7.
• Mendelson, Wallace. (1961). Justices Black and Frankfurter: Conflict in the Court. Chicago: University of Chicago Press.
• Newman, Roger K. (1994). Hugo Black: A Biography. New York: Pantheon Books. ISBN 0823217868; ISBN 978-0823217861; ISBN 0679431802.
• Silverstein, Mark. (1984). Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making. Ithaca: Cornell University Press.
• Simon, James F. (1989). The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in America. New York: Simon Schuster.
• Strickland, Stephen Parks, ed. (1967). Hugo Black and the Supreme Court: A Symposium. Indianapolis, Bobbs-Merrill.
• Suitts, Steve. (2005). Hugo Black of Alabama. Montgomery, AL: New South Books. ISBN 1-58838-144-7.
• Williams, Charlotte. (1950). Hugo L. Black: A Study in the Judicial Process. Baltimore, Johns Hopkins Press.
• Yarbrough, Tinsley E. (1989). Mr. Justice Black and His Critics. Durham, NC: Duke University Press.
• Yarbrough, Tinsley E. (1971). “Mr. Justice Black and Legal Positivism,” Virginia Law Review 57: 375.

[edit] External links

• Works by Hugo Black on Wikisource.
• "Black, Hugo Lafayette." Biographical Directory of the United States Congress.
• Goldman, Jeremy. "Hugo L. Black." Oyez Project.
• Supreme Court Historical Society. "Hugo L. Black."
• Pesaresi,Josephine Black. "Simple and Cheap." Preparations for her father's funeral.

United States Senate
Preceded by Oscar W. Underwood	United States Senator (Class 3) from Alabama March 4, 1927 – August 19, 1937 Served alongside: J. Thomas Heflin, John H. Bankhead II	Succeeded by Dixie B. Graves
Political offices
Preceded by David I. Walsh Massachusetts	Chairman of the Senate Education and Labor Committee 1937	Succeeded by Elbert D. Thomas Utah
Legal offices
Preceded by Willis Van Devanter	Associate Justice of the Supreme Court of the United States August 19, 1937 – September 17, 1971	Succeeded by Lewis Franklin Powell, Jr.

v • d • e United States Senators from Alabama Class 2: King • Lewis • Fitzpatrick • Clemens • C. Claiborne Clay • Warner • Goldthwaite • Morgan • Bankhead, Sr. • Comer • J. Heflin • Bankhead, Jr. • Swift • Sparkman • H. Heflin • Sessions Class 3: Walker • Kelly • Chambers • Pickens • McKinley • Moore • McKinley • C. Comer Clay • Bagby • King • Fitzpatrick • Spencer • Houston • Pryor • Pugh • Pettus • Johnston • White • Underwood • Black • Graves • Hill • J. Allen • M. Allen • Stewart • Denton • Shelby

Supreme Court of the United States

The Hughes Court Chief Justice: Charles Evans Hughes (1930–1941) 1937–1938: J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black 1938: J.C. McReynolds | L.D. Brandeis | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black | S.F. Reed 1939: J.C. McReynolds | P. Butler | H.F. Stone | O.J. Roberts | H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas 1940–1941: J.C. McReynolds | H.F. Stone | O.J. Roberts | H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy February-July 1941: H.F. Stone | O.J. Roberts | H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy | (vacancy) The Stone Court Chief Justice: Harlan Fiske Stone (1941–1946) 1941–1942: O.J. Roberts | H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy | J.F. Byrnes | R.H. Jackson 1943–1945: O.J. Roberts | H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy | R.H. Jackson | W.B. Rutledge 1945–1946: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy | R.H. Jackson | W.B. Rutledge | H.H. Burton The Vinson Court Chief Justice: Frederick Moore Vinson (1946–1953) 1946–1949: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | F. Murphy | R.H. Jackson | W.B. Rutledge | H.H. Burton 1949–1953: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | R.H. Jackson | H.H. Burton | T.C. Clark | S. Minton The Warren Court Chief Justice: Earl Warren (1953–1969) 1953–1954: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | R.H. Jackson | H.H. Burton | T.C. Clark | S. Minton 1955–1956: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | H.H. Burton | T.C. Clark | S. Minton | J.M. Harlan II 1956–1957: H. Black | S.F. Reed | F. Frankfurter | Wm. O. Douglas | H.H. Burton | T.C. Clark | J.M. Harlan II | Wm. J. Brennan 1957–1958: H. Black | F. Frankfurter | Wm. O. Douglas | H.H. Burton | T.C. Clark | J.M. Harlan II | Wm. J. Brennan | C.E. Whittaker 1958–1962: H. Black | F. Frankfurter | Wm. O. Douglas | T.C. Clark | J.M. Harlan II | Wm. J. Brennan | C.E. Whittaker | P. Stewart 1962–1965: H. Black | Wm. O. Douglas | T.C. Clark | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | A.J. Goldberg 1965–1967: H. Black | Wm. O. Douglas | T.C. Clark | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | A. Fortas 1967–1969: H. Black | Wm. O. Douglas | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | A. Fortas | T. Marshall The Burger Court Chief Justice: Warren Earl Burger (1969–1986) 1969-1970: H. Black | Wm. O. Douglas | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | T. Marshall 1970–1971: H. Black | Wm. O. Douglas | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | T. Marshall | H. Blackmun

Persondata
NAME	Black, Hugo
ALTERNATIVE NAMES	Black, Hugo LaFayette
SHORT DESCRIPTION	U.S. Supreme Court justice
DATE OF BIRTH	February 27, 1886
PLACE OF BIRTH	Harlan, Alabama, Wilcox County, Alabama, United States of America
DATE OF DEATH	September 25, 1971
PLACE OF DEATH	National Naval Medical Center, Bethesda, Maryland, United States of America