Happy Birthday, Hugo Black!
politicallefty:
I cannot speak for everyone, but I can say when I learned about the Constitution and the Bill of Rights in school, it was always the Tenth Amendment that restrained the federal government to its enumerated powers. I don't remember much about the Ninth Amendment when I was in K-12 school. I would argue that most judges, including the Justices of the Supreme Court, would struggle to elucidate its meaning with any good level of clarity when asked. I do not disagree that it is the most difficult part of the Constitution to fully understand.
I cannot say that I read the Constitution in the same manner as you do. Madison spoke of rights that belong to the people independent of anything explicit in the Constitution. I'm also quite sure his words were spoken without knowledge of what would be the Tenth Amendment. The Ninth Amendment should be read with great importance. Those that argue for states' rights would just as soon have that amendment erased in support of the 10th.
The Lochner era was based on the idea of substantive due process, a concept that is unfortunately found in most jurisprudence now. Substantive due process belongs in the waste bin of history. Keep in mind that Justice Douglas didn't want to touch substantive due process in his Griswold opinion. He was very much aware of what that jurisprudence brought about.
MarkD:
A lot of people just avoid talking about the 9th, probably because it is so ambiguous. I don't think I ever heard about the 9th in K-12 nor in college.
It's so ambiguous that it clearly has meant different things to many different scholars. Bork not only described the 9th as an inkblot, he also said, in Tempting, that the purpose of the 9th was to maintain the relevance and pertinence of the Bills of Rights in each respective state constitution. I have always been baffled at why Bork didn't accept the traditional interpretation of the 9th, as I've been describing it here in Atlas, since Bork has obviously seen that interpretation in a few places. John Hart Ely did acknowledge the traditional interpretation - he called it the "received" interpretation, which means that it's the interpretation which has been widely accepted as true and authoritative - but he nonetheless rejected it because of the redundancy problem. Ely suggested the 9th should be the federal government's Equal Protection Clause, thus justifying Bolling v. Sharpe (since he agrees with critics of Bolling that the "5th Amendment's equal protection inferred from due process" "is gibberish, both historically and syntactically.") Then there was Justice Goldberg's argument, in Griswold, that the 9th justifies giving the Due Process Clauses substantive meaning.
And I used to misinterpret the 9th when I was young. I wanted the 9th to be justification for overturning Bowers v. Hardwick, but that was before I researched the history of why the 9th was adopted. It is quite unfortunate that the congressional committee worded the 9th the way they did, instead of using the wording adopted by the Virginia Ratifying Convention, but I think it's most likely they chose the wording that they did in order to sound more populist, and to make it easier for the public to accept it and support ratification. The committee might have thought that the proposal by the Virginia Ratifying Convention was a bit more confusing. Prof. Bernard Schwartz is obviously aware of all the history lying behind the 9th, as I have been discussing here, but he thinks that since the congressional committee DID change the wording of what became the 9th, the meaning of it was changed as well - and he doesn't give a damn about "original intent." Schwartz, however, endorses the idea that Supreme Court Justices may legitimately use their own subjective views of justice to define unenumerated rights - so long as it does not revive Lochner-like doctrine.
I could probably write a book about what all was wrong with Douglas's opinion in Griswold, but that would not be consistent with this thread.
MarkD:
There's one more thing about John Hart Ely's rejection of the traditional interpretation of the 9th that I should mention. In addition to rejecting the traditional interpretation on the grounds of the 9th and the 10th being effectively redundant, he also argues that when our Founding Fathers talked about the relationship between "rights" and "powers," they mistakenly assumed that the relationship is and can only be reciprocal. Ely says that today we would regard the relationship between the rights of the people and the powers of the federal government as not being reciprocal, "but that rights can cut across, or trump, powers (as in a regulation of the interstate shipment of books might be thought of as a regulation of interstate commerce, but violates the First Amendment and so must fall)."
That seems to be a very agreeable way of engaging in legal reasoning, but the problem becomes that if there are UNenumerated rights which will be used to trump the enumerated powers of Congress, then Congress will never be able to know what laws they can or cannot pass, and the enumeration of powers was ultimately pointless. And since Ely did purport to be against the judiciary rendering utterly subjective decisions about what are libertarian-oriented unenumerated rights, then he ultimately did not mean to suggest that an endless array of such rights should be invoked to strike down federal laws. Instead he wanted the 9th to be the federal government's Equal Protection Clause, as I noted above, so that his methodology of using the 9th would only be limited to striking down discriminatory federal laws, even though such laws were within Congress's list of enumerated powers. Hence, if Congress passed a law about interstate shipment of this or that, but the law was explicitly about making it more difficult for black shippers of goods than white shippers, than the racially-discriminatory content of that law would be deemed a violation of the 9th Amendment, in Ely's version of how to interpret the 9th. As healthy as I think he wass trying to be to come up with a fairly narrow interpretation of the 9th, what he was doing to being iconoclastic in his rejection of the traditional interpretation, he went very far afield of the original intent of the 9th, and the SCOTUS has never employed the 9th the way he said they should.
dead0man:
what do we think of these parts of his Senate career?
Quote
In 1935, during the Great Depression, Black became chairman of the Senate Committee on Education and Labor, a position he would hold for the remainder of his Senate career. On August 8, 1935, Black, who was chairman of the senate committee investigating lobbying activities, went on NBC's National Radio Forum. The national audience was shocked to hear Black speak of a $5 million electric industry lobbying campaign attempt to defeat the Wheeler–Rayburn bill, known as the Public Utility Holding Company Act of 1935 that had passed in July. The act directed the Securities and Exchange Commission to close down the country's corrupt electric holding companies. Black gave a dramatic speech on this four-decade-long political battle.[21]
Critics of Black's lobbying committee in leading newspapers, such as the Washington Post and Chicago Tribune, described his investigative methods as both "inquisitorial" and "terroristic" and charged that his goal was to intimidate and silence anti-New Dealers. Most controversially, Black, with the full backing of the Roosevelt administration, to get FCC to order Western Union and other telegraph companies to provide access to copies to several million telegrams sent during the period of February 1 to September 1, 1935. Committee and FCC staffers examined the telegrams at the rate of several thousand per day. The committee's goal was to uncover content that had bearing on lobbying, which it defined very broadly to include just about any political commentary. People who had their private telegrams examined included every member of Congress as well as leaders of anti-New Deal organizations. When Black's investigation of these telegrams became public knowledge, there was a major outcry in the press. On March 11, 1936, Chief Justice Alfred A. Wheat of the Supreme Court of the District of Columbia (later renamed the District Court of D.C.) granted an injunction prohibiting the committee from any further examination of more telegrams on the grounds that they secured though against unreasonable search and seizure: "This subpoena goes way beyond any legitimate exercise of the right of subpoena duces tecum."[22]
Black was an ardent supporter of President Franklin D. Roosevelt and the New Deal.[4]: 91 In particular, he was an outspoken advocate of the Judiciary Reorganization Bill of 1937, popularly known as the court-packing bill, FDR's unsuccessful plan to expand the number of seats on the Supreme Court.[4]: 90–91
During his Senate career, Black consistently opposed the passage of anti-lynching legislation, as did all of the white Democrats of the Solid South.[24] In 1935 Black led a filibuster of the Wagner-Costigan anti-lynching bill.[25] The Pittsburgh Post Gazette reported that when a motion to end the filibuster was defeated, "[t]he southerners—headed by Tom Connally of Texas and Hugo Black of Alabama—grinned at each other and shook hands.
Navigation
[0] Message Index
[*] Previous page