Commentary Magazine

Justice Black and the Absolute

“Due Process, to use the vernacular,” Justice Douglas has said in a formal lecture on the Bill of Rights, “is the wild card that can be put to such use as the judges choose.” A little more than a quarter of a century ago they chose, in the name of the due process clause of the Fourteenth Amendment,1 to strike down statutes that were intended to help us out of the Depression. One had the sense of an accelerating force out of control by the spring of 1936. On each of three successive Mondays the Supreme Court declared a statute unconstitutional, using for each a different reason and reserving due process for the last, a New York minimum wage law for women drawn with such care to appease the Court that even starvation wages were to be raised only if a reasonable wage level resulted.

Today the use of the due process clause to upset any economic regulation seems impossible. We know the exact moment when the new direction set in. Less than a year after the decision in the New York case a Washington State minimum wage act, much less well-drawn than the one in New York, was upheld. No new judge had considered the problem, no new learning was brought to it; between the two decisions Franklin Roosevelt had been overwhelmingly re-elected and proposed to pack the Court with new judges. It seems an unimportant nicety to point out that the Washington case apparently had already been informally decided before Roosevelt’s plan was announced. As the attack continued, the Court by the changed vote of one judge or at the most two (“A switch in time saves nine”) found that the power to enact broad welfare legislation existed in Congress as well as the states, and at a well-timed moment in the fight one extremely conservative judge retired. The Court-packing plan was beaten and the independence of the judiciary preserved by surrendering to the assailant.

To fill the vacancy Roosevelt appointed Senator Hugo Black, an outright New Dealer, which to Roosevelt’s opponents implied some unfitness to be a judge, as if it were unseemly to uphold the New Deal on the basis of a conviction older and deeper than the newly converted majority’s. A more serious question was raised when the nation learned, too late to do anything about it, that Black for a few years in the 20’s had been a member of the Ku Klux Klan in Alabama, a fact well known there but apparently denied in the Senate during the debate on confirmation. A white-robed Klansman among the black-robed judges—a doctored photograph in the newspapers made this newspaper rhetoric vivid and literal—was at the moment an overwhelming national scandal, which seen today in perspective seems irrelevant.

The brief membership, which if timely revealed might have prevented his Supreme Court career, has to be considered in the light not only of that career but also of his earlier career, which he may have been too proud to discuss when he made his unhappy radio address to the nation, for both careers are of a piece. A few years ago Justice Black wrote at length to demonstrate that no crime was committed by one lone Negro’s dancing quietly by himself while waiting for a bus and that to convict him of loitering for this and of disorderly conduct for arguing with the policeman who arrested him denied him due process of law. Fifty years ago as a young police court judge in Birmingham, Black in dismissing a disorderly conduct charge against twenty-two Negroes arrested at a dance told the arresting officer that he had no more right to break up their dance than any other. The Supreme Court judge who has so vigorously opposed the lawless enforcement of the law opposed it with equal vigor when he was a county prosecutor in 1915. Negroes arrested and held indefinitely, to increase the fees of their keepers and the costs that prisoners had to pay until they were tried, were either brought to trial quickly by Black or had their cases dismissed. A high percentage of confessions by the Negroes of a certain locality made him suspicious of the police there; on discovering that for a long time they had been using brutal torture he had a grand jury investigate, prepared an eloquent report that led to an independent citizens’ committee inquiry and the proposal to oust the guilty policemen. Characteristically, his report insisted that an arrested man, whether innocent or guilty, did not give up his “right to be treated as a human being. . . .”

Joining the Supreme Court while it was in a more or less graceful retreat from its constitutional excesses, Black wanted it in effect to admit clearly and forthwith that it was wrong about the Fourteenth Amendment and had been wrong for decades. Ideally, rate cases brought by utilities claiming that the state had set confiscatory rates should be neither affirmed nor reversed on their merits but dismissed to show that they were not even within the Court’s jurisdiction. Corporations, which brought most of the litigation under the Fourteenth Amendment, should be told that a human being was the only kind of “person” whom the Framers of the Amendment had in mind. Black was right in distrusting Roscoe Conkling’s plea on behalf of a railroad client in the 1880’s that the Framers—he had been one of them—shifted from “citizens” to “person” for the very purpose of using a word broad enough to cover both Negroes and corporations. Conkling fudged his facts; there seems to have been no conscious conspiracy for business such as he implied existed. But scholars have made the point that we should not, as Black does, stop here. The Framers, or some of them, were good enough lawyers to know that “due process” was growing beyond its original meaning to take in on the one hand such spiritual concerns as freedom of speech and on the other such practical ones as business and corporations; and if the Framers could think of corporations as entitled to due process, they could also easily think of them as persons.

Black has never convinced the Court on his tactical point about corporations. (He himself has ignored it in rescuing a newspaper corporation from punishment for an editorial.) But he has apparently established his major point, that due process has nothing to do with state regulation of business. The victory was won in the 40’s but has just been restated formally by Black. This past term the Court has sustained a state statute prohibiting the general practice of debt adjustment, the business of taking control of a hard-pressed debtor’s funds and trying to settle with his creditors. It might well be deemed a harmful business, subject to abuse; but what Black said in his majority opinion was that the state could act foolishly or wisely, under one economic theory or another, it was no concern of the Court’s either to approve or disapprove. Only the most conservative of the judges felt the need to assert that the statute might actually be rational; all the other members of an individualistic court given to the exact expression of their views were silent.



Due process of law, whatever else it covers, has always signified to the Court, just as it does to laymen, procedural safeguards. What they are, the Court has never told us precisely. Those that have been enumerated by it come chiefly from the Bill of Rights. As the Bill of Rights was adopted to bind only the federal government and not the states, the Court in construing the Fourteenth Amendment has felt free to pick and choose among the rights; only fundamental ones—those “implicit in the concept of ordered liberty,” essential to “civilized decency,” to “fundamental liberty and justice”—have been absorbed into due process. By this method self-incrimination and double jeopardy have apparently not been absorbed, certainly not fully, indictment by grand jury not at all, but unreasonable searches and seizures and right to counsel have been. The First Amendment rights—freedom of religion, press, assembly, petition, although matters of substance rather than of procedure—seem to have been fully carried over into due process.

No one in our time has so pushed the Court to make the Bill of Rights applicable to the states or to expand the provisions of the Bill of Rights itself as has Hugo Black. His passion for freedom, his faith in it as an everyday guide stand out in Irving Dilliard’s excellent collection of Black’s opinions on civil rights and liberties.2 By arranging them chronologically and including Black’s James Madison Lecture as well as his public interview on absolutes at an American Jewish Congress dinner, Mr. Dilliard has enabled us to see Black’s philosophy of freedom emerging fully articulated relatively early, and yet having even now the potentiality of startling consequences.



The majority of the Court, particularly when influenced by Felix Frankfurter, has been haunted by the possibility that it may now, in the field of civil rights, be imposing its own views of freedom, its very prejudices, on legislatures, as formerly its predecessors imposed theirs in the field of economics. It is a troublesome doubt, for all who judge like to believe that they are governed by objective standards; even literary critics are reluctant to accept Remy de Gourmont’s view that it is the function of the critic to erect his prejudices into laws. For a profound student of the Court like Frankfurter, aware of past abuse of judicial power, the only hope is in self-restraint, humility. “Mr. Justice Frankfurter is deeply humilitarian,” Professor Wallace Mendelson has observed. “Plainly this is an acquired characteristic. . . .”

For Black, the Frankfurter technique leads not only to uncertainty but to the very vice it purports to cure. No matter how one words the standards judges should apply, the actual method of selecting what is essential to due process is bound to be personal; the greater the judges’ self-restraint the more they are legislating and in the end nullifying the Bill of Rights. It is implicit in Black’s logic that all of the provisions of the Bill must be treated as part of due process, and he believes that what logic demands history has happily performed: the entire Bill of Rights was incorporated (presumably through the privileges and immunities clause) into the Fourteenth Amendment by its Framers.

In an elaborate appendix to a 1947 dissenting opinion, Black made what may well be the fullest investigation into the adoption of the Fourteenth Amendment that has been made by a Supreme Court judge, for judges usually do not look so much to history as to what their predecessors have said is history. He found that Congressman Bingham, whom Black likes to call the Madison of the first section of the Fourteenth Amendment, mentioned the Bill of Rights frequently in debate, and that Howard of Michigan in introducing the Amendment in the Senate clearly stated that it protected the personal rights set forth in the first eight Amendments. These views of a proponent are entitled, it seems to me, to a greater weight than is usually accorded them, and yet as Frankfurter said, “What was submitted for ratification was his proposal not his speech.” The proposal was so unclear that state legislatures do not seem to have been aware that it was being made; nearly half of the ratifying states were then instituting criminal prosecutions without a grand jury and never changed so as to conform to this requirement of the Bill of Rights. Most of the public discussion of the Fourteenth Amendment was about its major purpose, the protection of Negroes and the reconstruction of the South. In this clamor little else could be heard. If Black is right, it can almost be said that the Fourteenth Amendment was adopted by a conspiracy—one, however, not on behalf of corporate power but of the Bill of Rights.

Black’s doctrine of wholesale incorporation has not been accepted by the Court, but I believe that it has influenced decisions. There seems to be a recent tendency to apply all of the features of a right enumerated in the Bill in their full rigor against a state when the right is found to be part of due process. We saw how absolute a prohibition can be when Black demonstrated that New York’s experiment with a vaguely deistic prayer of less than two dozen words was an establishment of officially approved religious doctrine forbidden by the First Amendment.

Professor Edmond Cahn in his public interview of Black used as a text the sentence from the James Madison Lecture that might be taken as the judge’s credo: “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 ‘absolutes.’” We can agree with Black’s characteristic argument from history in every field except the one that is most important, freedom of the press.

An excellent case has been made by a liberal scholar that the Framers’ bold words on freedom of the press when the First Amendment was adopted meant much less to them then than they do to us now.3 That freedom was placed beyond the reach of the government; Congress, unlike the Parliament in England, could not abridge it in the slightest. But what was given this absolute protection was a relatively narrow freedom, the right to publish without previous restraint or licensing such as had prevailed in England until 1694; one would still be subject to prosecution for seditious libel, as fairly moderate disparagement of the government was called. The most that the Framers seem to have had in mind was the right to plead truth as a defense and to have it passed on by a jury. It was only when Madison and Jefferson and their allies were fighting the Sedition Act aimed against their party that they first urged that a broader definition of freedom was embodied in the First Amendment. They may not have been absolutely and impartially committed to this new contention, for in Jefferson’s administration some men were indicted for a seditious libel on him and his Congress, and the indictment was pending in Madison’s administration until dismissed by the Supreme Court, not as an invasion of freedom of the press but because there could only be statutory and not common law federal crimes.

Jefferson’s and Madison’s more liberal views have prevailed to such an extent that we are likely to think that their own dabbling in seditious libel was not in good faith. We should realize rather that they and their allies in the course of their political struggles enlarged constitutional freedom. What Professor Levy has said so well of them has some application to Justice Black today. “They were addressing the future, not the past. Their insistence that they were simply clarifying the past’s original understanding reflected an Anglo-American habit of going forward while facing backwards: rights that should exist are established on the fictitious pretense that they have ever existed. . . .” It is a noble fiction that when sincerely believed can help create for the future the Golden Age it sees in the past. But it is a future that has not yet come into being.

The views which Black holds with such intensity he seems to have enjoyed stating in his New York interview with provocative simplicity, as if he were speaking off the cuff rather than from his depth of historical learning. But the very casualness with which he asserts his claims for the absolute can jolt us into realizing that we have been accepting, merely because they are old, restrictions on freedom that are inconsistent with it. His most startling, most shocking, theory is the unconstitutionality of our libel law. That Congress has enacted no law on private libel in its entire existence may well be a sign that, as early commentators thought, it cannot under the First Amendment. What is forbidden Congress seems equally to be forbidden the states (even if we think of only the First Amendment and not the entire Bill of Rights as being made applicable to the states by the Fourteenth). This is in essence Black’s point. But if we infer nothing from the inaction of Congress and if we assume, as I believe we must, that freedom is less than absolute, still many of the peculiar features of present libel law must go if freedom of the press is to have any real meaning.

Freedom, we like to say, does not give one the right to harm others by lying about them. But the law of libel—which derives largely from Star Chamber, that part of the English tradition least compatible with freedom—in a number of ways goes much farther than to give compensation for actual damage from lies:

  1. The plaintiff does not have to prove that what has been written about him is false. Instead, the burden of proving truth is on the defendant and he is limited to the use of legally acceptable evidence, which often means that he must produce in court the eyewitnesses to the events he has written about. It is not enough for him to show that he has acted with the greatest care and has used only reliable sources; he will still be liable, for this is one field of law in which there can be liability without fault in anyone, unless we accept the Star Chamber view that unlicensed writing is itself a fault.
  2. Punitive damages, a frankly penal sum in excess of actual damage, can be awarded if the defendant acted maliciously, which may mean no more than that in a jury’s opinion he did. So much of the ancient hostility to the press survives in our libel law that if a defendant pleads the defense of truth and fails to establish it, his failure is a circumstance from which the jury may infer malice. Punitive damages paid to the plaintiff are possibly an even more oppressive form of punishment than a fine paid to the state would be. They are a criminal sanction imposed without the traditional safeguards of the criminal law. The jury in many states need not be unanimous in its verdict, nor need it find the defendant guilty beyond a reasonable doubt.
  3. Even a verdict nominally limited to plaintiffs actual damages can in reality include a penal amount. For the plaintiff need not offer any evidence of the damage he has suffered; the jury can infer the amount from the circumstances of the case.

The judge-made rule of judicial impunity recognizes the deterrent effect of libel suits. If what a judge says or writes in a case is relevant, it can be false, scurrilous, malicious, but the judge cannot be held liable. Surely the basis for this rule is not that judges demand the right to defame, but that they need this absolute freedom of speech if they are to speak freely.

A wholesome dread of the law’s uncertainties, a wholesome ignorance of how really illiberal the law of libel is, perhaps explain why more damage to freedom has not been done by it. The huge verdicts of the last few years give to the law a new potential for harm, particularly in areas in which a pattern of repetition may be established. A scandal sheet, living by defamation, changing its victims constantly, presumably can pay the cost. A Northern newspaper or magazine circulating in the South may find it prohibitively expensive to publish the truth as it sees it or to advertise the political views of others if Southern juries are to continue to bring in half-million dollar verdicts. In a normal world a balance of rights—an approach that Black despises—would suggest that where a subject of public importance is involved a plaintiff should recover in a libel suit only if he proves that the statement about him was false and the defendant careless or otherwise at fault, and his recovery should be limited to the actual damages established by competent evidence. If abnormal verdicts persist, the temptation may become strong to find that the First Amendment has to be read as literally as Black says it should be.4



Black speaks in terms of absolutes, but when we compare the actual issues in a case with Black’s opinion—Irving Dilliard’s valuable prefatory notes and his skillful editing of the opinions make it easy for us to do this—we are struck by how much stronger the doctrine often is than the occasion actually demands. If freedom wins, he writes to assure it the largest victory. If he is in dissent but also at times when he concurs, the wrong to freedom reminds him of the grossest ancient wrongs—the anti-Masonic madness of the 1830’s, the Alien and Sedition laws, Protestant persecution of Catholics, Catholic attainder of Protestants (Black follows Macaulay in his views of the wickedness of James II’s brief ascendancy in Ireland, not Lecky, who finds Macaulay’s picturesque, horrifying details exaggerations). In the long run Black’s method may well be fruitful, but in a given case it sometimes seems weak. He seems to see no difference between the folly of discharging a subway conductor for refusing to state whether he is a Communist and the Taft-Hartley Act requirement that a union official swear that he is not one. (Even so good a friend of free speech as Zechariah Chafee has said, “The Taft-Hartley oath was intended to remedy serious evils of industrial relations, such as strikes for political or revolutionary purposes.”)

Since Black’s fundamental tactic has been to get us to accept as old what are really new views, he does not speak of the growth of the law and does not admit that he has any part in making it, as judges who have been teachers are so fond of doing. At the most he admits to helping restore the law to its original purpose. Mere reason may tell us that this is an absurd doctrinaire attitude, but it has been amazingly successful as a judicial method, and the vulgar test of success is not a bad one to apply in a field that has so few demonstrable rules as constitutional law.

Black’s method is successful because if one is to explicate a text well, one must have faith in the task, in the value of the text itself. It is perhaps no more absurd for Black to look for ultimate wisdom in an 18th-century document, the creation of an anxious period that had its own problems to solve, than it is for us to find profound insights about ourselves in the plays Shakespeare threw together hastily. It is part of our romantic heritage that we have more faith in poets as lawmakers than in lawmakers as poets. To say, as we do, that the Constitution is what the judges say it is may not so much deny its existence as assert that as Shakespeare has been enriched by Coleridge and his other great critics, so it has been enriched by its interpreters. If in our few best moments we are able to read Shakespeare as if he were a sacred text, finding among the ambiguities of poetry some of our few certainties about life, it should be possible for us to believe that a judge can read the Constitution, his sacred text, as if it were Shakespeare and find in it his vision of the absolute.

It is certainly not a dangerous vision today. So many forces in the courts, in government and society, so much of what we call moderation and prudence and the art of the possible, so much even of liberalism itself, make against freedom that no force on its side can be extreme. Hugo Black’s stand through the years for absolute freedom may help assure us an indispensable minimum.




1 The relevant passage of the Fourteenth Amendment is the second sentence of Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

2 One Man's Stand for Freedom; Mr. Justice Black and the Bill of Rights, Knopf, 504 pp., $6.95.

3 Legacy of Suppression: Freedom of Speech and Press in Early American History, by Leonard W. Levy, Belknap Press, 353 pp., $6.50.

4 I do not pretend to write impartially on libel, for as a lawyer I have been concerned with it chiefly from the point of view of publishers and authors.

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