people from alabama are fiercely proud of their famous sons and daughters. the sidewalk in front of the alabama theatre is covered with stars of the semi-famous and almost famous—but we love them all, because they’re ours. i bet all of alabama watched the last american idol—not because it was any good, but because of the big “205” on ruben studdard’s belly.
so growing up, why had i never heard of justice hugo black, the most powerful man ever to stride out of our coal-soaked soil?
sure, the courthouse is named after him. the truth is, hugo black was a little too big for alabama. hell, his ideas were a little too big for the supreme court he sat on.
hugo black was a monster for the first amendment—i can’t think of it another way. for the thirty-four years he sat on the court—a lifetime—he was the only justice who would firmly state “congress shall make no law means congress shall make no law.” you can almost hear the “goddamn” in there.
i suspect hugo black was quite popular in alabama until 1954—when he was suddenly and quickly disowned, never allowed to return to the fold. brown v. board of education wasn’t just a landmark for civil rights: following its lead, the supreme court always voted unanimously on desegregation cases for another twenty years.
it probably didn’t help that the justice was in the majority for naacp v. alabama, which told the state to go to hell when they were trying to intimidate members of that august group.
and hugo black lead that unanimity. so i doubt the folks back home understood him anymore—the senator who had run with kluxer support. what they couldn’t understand is what justice black did—and what not enough people understand.
his power was limitless. if he could just convince enough of his fellows to follow his lead, he could derail the power of presidents. he did just that, in 1952, to president truman. and somewhere in there he read a copy of the constitution, and seemed seized by a fervor to make it apply to every citizen—regardless of color or how much money was in their pocket.
or what kind of trouble they were in. ten years after brown he’d tell every police officer in the nation to wise up, or lose the evidence: mapp v. ohio threw out evidence unconstitutionally obtained. then gideon v. wainwright ensured all persons had access to a lawyer, whether or not they had money.
baker v. carr ensured that each person was worth one vote. can you imagine that this was even an issue? what was america like then? we have problems now, but—some folks’ votes counted more? what were they doing?
one of my favorite cases is heart of atlanta motel v. u.s. that one says you can’t discriminate in motels and hotels to black folks. it was a good case; imagine trying to drive a few hours and not being able to go get something to eat in a restaurant. or use the bathroom anywhere. or have a hotel to sleep in. the court broke the back of one of the more dehumanizing aspects of jim crow that year.
just a couple years later americans gained some of their most precious rights: miranda. glancing through a list of the cases he sat on, argued on, and believed in, gives me chills. the man had problems: he had faults. yet these cases define us as citizens. they gave us freedom and justice.
today is his birthday. not the one he was born on, mind you, but the real one—the day he was appointed by president roosevelt, all those decades ago.
just a few months before he died, the last case he worked on was new york times v. u.s., perhaps the most significant challenge to a president since they’d told truman “no” twenty years before. see, there was this little fellow, named dick nixon, and he had these secret papers . . . which he didn’t want the puny little folks to see. they weren’t for the public, just a group of secretive republican fatcats running a war no one wanted and no one liked.
sound familiar? so the rich men didn’t want the times and the washington post to run the stories, and stopped them from doing so.
justice black was infuriated that the papers weren’t allowed to print what it wanted, when it wanted. the court handed down a little per curiam decision that essentially said “let the paper publish.”
justice black wrote separately. only justice douglas, with his fiery liberarian streak, would join such violent words of freedom. the very history of america and of our rights was too powerful, too honest for the other justices to join. they flinched at their very freedom.
what he wrote is of magnificent import to all citizens today. edits and emphases mine:
I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.
In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech.
In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: ‘The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’
The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly.
Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: ‘Congress shall make no law . . . abridging the freedom . . . of the press . . . .’ Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.
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.
And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
And the Government argues in its brief that in spite of the First Amendment, ‘the authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander- in-Chief.’
In other words, we are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously farreaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.
To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.
This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes—great man and great Chief Justice that he was—when the Court held a man could not be punished for attending a meeting run by Communists.
‘The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.’
magnificent. happy birthday, mr. justice hugo black—we need you now, sir.
Wow David…you make me miss Dr. Wall’s classes!
Who, BTW, I saw at LACEY’s WEDDING…along with all our other profs- all asked about you…
very good. you should send one to fox news and the president