Happy Birthday, Hugo Black!
MarkD:
Quote from: politicallefty on March 03, 2024, 04:00:59 AM
One of the truly greats that has served this country and our Constitution. To go from a member of the KKK to part of the unanimous Brown decision to the absolutist position in Alexander v. Holmes County Board of Education is something extraordinary.
Apart from that, I think his truly great decisions were:
-Everson v. Board of Education
-Engel v. Vitale
-Gideon v. Wainwright
-Wesberry v. Sanders
-McCollum v. Board of Education
His Establishment Clause jurisprudence remains second to no one.
Do you really approve of Black's conclusion in Everson? Or do you only approve of the doctrinal statements he made in the opinion about what the Establishment Clause means?
As you know, I disapprove of Black's opinion and conclusion in Engel and Wesberry. I think you and I will agree to disapprove of his dissenting opinion in Katz v. United States. But I know you disapprove of his dissenting opinion in Griswold v. Connecticut, whereas I think that one is one of the most enlightening and educational judicial opinions I have ever read! The sixth footnote in that opinion is one of the most informative and important things I've ever seen, and the fifth and sixteenth footnotes, quoting from Judge Hand and Justice Holmes respectively, also are very significant. I am going to emphasize that quotation of Holmes's dissenting opinion in Baldwin v. Missouri quite heavily in the book I am writing: "Rewrite the Fourteenth Amendment."
The only thing I have seen in that dissenting opinion I can admit was a mistake is that he made a statement about the Ninth Amendment that makes it seem as if the Ninth and Tenth Amendments have identical purposes. The purposes of those two amendments are parallel, not identical. The other dissenter in Griswold, Justice Stewart, made the same mistake. But in every other way, those two dissenting opinions are pretty much perfect.
politicallefty:
Quote from: MarkD on March 10, 2024, 11:36:55 AM
Do you really approve of Black's conclusion in Everson? Or do you only approve of the doctrinal statements he made in the opinion about what the Establishment Clause means?
As you know, I disapprove of Black's opinion and conclusion in Engel and Wesberry. I think you and I will agree to disapprove of his dissenting opinion in Katz v. United States. But I know you disapprove of his dissenting opinion in Griswold v. Connecticut, whereas I think that one is one of the most enlightening and educational judicial opinions I have ever read! The sixth footnote in that opinion is one of the most informative and important things I've ever seen, and the fifth and sixteenth footnotes, quoting from Judge Hand and Justice Holmes respectively, also are very significant. I am going to emphasize that quotation of Holmes's dissenting opinion in Baldwin v. Missouri quite heavily in the book I am writing: "Rewrite the Fourteenth Amendment."
The only thing I have seen in that dissenting opinion I can admit was a mistake is that he made a statement about the Ninth Amendment that makes it seem as if the Ninth and Tenth Amendments have identical purposes. The purposes of those two amendments are parallel, not identical. The other dissenter in Griswold, Justice Stewart, made the same mistake. But in every other way, those two dissenting opinions are pretty much perfect.
I admit I hadn't given much thought to the specific circumstances of the case in Everson, but I do feel his statements on the Establishment Clause are some of the greatest ever written by a Supreme Court Justice (not just in that case, but in decisions beyond it). Public schools are also a very significant distinction when it comes to the First Amendment.
I know we've spoken about Engel before, but I don't recall your issue with Wesberry. A lot of people erroneously think that was an Equal Protection Clause, but it actually wasn't. While Justice Black did join the "one man, one vote" line of jurisprudence, his opinion in Wesberry was based off a completely separate rationale (his view of originalism).
I do indeed agree with you that Justice Black was wrong in his Katz dissent. I think he made a major mistake that some critics of textualism actually make in that he conflated textualism with literalism. I do find it interesting how he was in the majority in Mapp, though he did also write a rather novel concurrence in that case. As I've said before, I firmly believe textualism should be the paramount mode of interpretation, above all else. However, it doesn't mean there shouldn't be other modes of interpretation in the larger whole. I don't think the exclusionary rule has much textual basis, but the text of the 4th Amendment is left with little meaning without it. The text must have meaning.
If the Ninth and Tenth Amendments are either identical in purpose or parallel, I think that makes them redundant insofar as the rights of the people. The Founders certainly did nothing of the sort with the Bill of Rights.
MarkD:
The conclusion Black and four of his colleagues came to in Everson was that state and local governments may subsidize the bus transportation of children going to and from their private schools, not just to public schools. Black's reasoning was simply that the subsidy was not direct financial aid used for religious instruction, it was merely about children's safety, which isn't religious.
In Wesberry, Black thought he had abundant evidence that the Founding Fathers wanted all of the people with each respective state to have equal representation. Black included quotations from several of the Founders, but my problem with those quotations was that only ONE quotation actually proved the specific point. All of the rest of the quotations proved nothing other than the fact that the Founders wanted the House of Reps to be elected by the citizenry. The only quotation that did address the concept of equal representation WITHIN each state came from the little-known James Wilson. That doesn't prove that the prevailing view of most of the Founders wanted the exact same thing. I have also objected to two other things in the line of subsequent cases that extended Wesberry. 1) Black claimed the Constitution requires a principle of "one man, one vote," but the Court eventually said, in the subsequent cases, that the states must use population data and ensure equal numbers of people, not voters in each district. There are significant differences between the amount of voter turnout in districts that have almost exactly equal numbers of people. "One man, one vote" was a dishonest slogan. 2) The subsequent cases proved that the Court was becoming excessively and unreasonably strict about having "equal" numbers of people in each district. The Court ended up rejecting the age-old legal adage de minimus non curat lex, "the law does not concern itself with trifling or insignificant matters." In Wesberry, Black had said, "as nearly as is practible," each state must ensure equal representation of the people in each district. Justice William Brennan, in the subsequent cases, became obsessed with the concept that states must "make a good-faith effort" to put equal amounts of population in each district. Justice Byron White wrote some excellent dissents pointing out how unreasonable and overly strict the Court's requirements had become.
I don't understand why the treatment of public schoolchildren is of any more importance regarding Establishment Clause jurisprudence than everyone else. Surely that clause would not have been included in the Bill of Rights if schoolchildren were the primary reason for adopting it.
The parallel purposes of the Ninth and Tenth Amendments do not make those two amendments redundant. Both amendments were supposed to restrain the powers of the federal government to its enumerated powers as listed in the Constitution. But it's the Ninth which protects the people from an overextended federal government while the Tenth protects the states from the same thing. That is the traditional interpretation of those amendments. That's the original understanding, the original meaning, of those amendments. (And it eventually surprised the hell out of me that Bork did not agree with that interpretation.)
politicallefty:
Quote from: MarkD on March 14, 2024, 06:15:39 AM
The conclusion Black and four of his colleagues came to in Everson was that state and local governments may subsidize the bus transportation of children going to and from their private schools, not just to public schools. Black's reasoning was simply that the subsidy was not direct financial aid used for religious instruction, it was merely about children's safety, which isn't religious.
In Wesberry, Black thought he had abundant evidence that the Founding Fathers wanted all of the people with each respective state to have equal representation. Black included quotations from several of the Founders, but my problem with those quotations was that only ONE quotation actually proved the specific point. All of the rest of the quotations proved nothing other than the fact that the Founders wanted the House of Reps to be elected by the citizenry. The only quotation that did address the concept of equal representation WITHIN each state came from the little-known James Wilson. That doesn't prove that the prevailing view of most of the Founders wanted the exact same thing. I have also objected to two other things in the line of subsequent cases that extended Wesberry. 1) Black claimed the Constitution requires a principle of "one man, one vote," but the Court eventually said, in the subsequent cases, that the states must use population data and ensure equal numbers of people, not voters in each district. There are significant differences between the amount of voter turnout in districts that have almost exactly equal numbers of people. "One man, one vote" was a dishonest slogan. 2) The subsequent cases proved that the Court was becoming excessively and unreasonably strict about having "equal" numbers of people in each district. The Court ended up rejecting the age-old legal adage de minimus non curat lex, "the law does not concern itself with trifling or insignificant matters." In Wesberry, Black had said, "as nearly as is practible," each state must ensure equal representation of the people in each district. Justice William Brennan, in the subsequent cases, became obsessed with the concept that states must "make a good-faith effort" to put equal amounts of population in each district. Justice Byron White wrote some excellent dissents pointing out how unreasonable and overly strict the Court's requirements had become.
I don't understand why the treatment of public schoolchildren is of any more importance regarding Establishment Clause jurisprudence than everyone else. Surely that clause would not have been included in the Bill of Rights if schoolchildren were the primary reason for adopting it.
The parallel purposes of the Ninth and Tenth Amendments do not make those two amendments redundant. Both amendments were supposed to restrain the powers of the federal government to its enumerated powers as listed in the Constitution. But it's the Ninth which protects the people from an overextended federal government while the Tenth protects the states from the same thing. That is the traditional interpretation of those amendments. That's the original understanding, the original meaning, of those amendments. (And it eventually surprised the hell out of me that Bork did not agree with that interpretation.)
Oh, I know what Everson was about. However, I have to say I was a little rusty as to the breakdown and what the Justices thought. The central holding of the case with respect to the meaning of the Establishment Clause was the most important part. Looking over the dissent, I'd forgotten how much the Justices agreed with respect to the overall meaning of the Establishment Clause. I also think it's somewhat odd when you look the jurisprudence of both Justices Black and Douglas once you get to the 1960s.
I will admit that I do think the Court may have gone somewhat too far with its standard under Wesberry, but I think the fundamental holding was sound. The malapportionment situation in many states was beyond obscene. I don't think "one man, one vote" should be taken to a literal conclusion, as strange as that may sound. Apportionment under the Constitution is determined by overall population. A Member of Congress represents all people within their particular district, not just the voters or those eligible to vote. Each voter in a district casts their vote for someone representing the same number of individuals. Allowing for districts to be two or three times larger than others defeats the purpose of the House of Representatives. I would go further and say the House is too small, but I'm inclined to say the Constitution leaves that issue to Congress.
The issue of schoolchildren with respect to the First Amendment is one of the most important. Children are required to go to school under the law. I'm not saying the First Amendment or the Establishment Clause are any less relevant in other places. My point was merely that the Establishment Clause ultimately has to be balanced with the Free Exercise Clause and I'd argue that the places of greatest contention between those two are in prison and in the military.
I don't see how you can say that the Ninth and Tenth Amendments aren't redundant under your interpretation. If the states can abrogate the Ninth Amendment, the Tenth just repeats what was already said (though with the addition that the federal government is constrained to its enumerated powers). The Tenth Amendment constrains the federal government; the Ninth Amendment constrains all government.
MarkD:
Just regarding the last paragraph: ...
As we've discussed before, I think the Barron v. Baltimore (1833) decision was correct, and nothing in any of the first ten amendments was intended to restrain the states, including the Ninth. To the Founders, the "rights retained by the people" had a reciprocal relationship to the powers enumerated in the Constitution. So when cases arise in which someone is challenging a federal law, arguing that this law violates rights that I and the rest of the populace retain per the Ninth Amendment, the duty of federal judges will not be to make up conceptions of unenumerated rights, but to interpret the enumerated powers of the federal government. Thinking that the Ninth can be, and is, just as pertinent in determining the constitutionality of state and local laws puts one into two possible ways of legal reasoning:
1) federal judges will potentially strive to interpret the enumerated powers of state governments per each respective state constitution, which presents a problem of jurisdiction, because expounding on the meaning of each respective state constitution isn't within federal jurisdiction,
2) federal judges will possibly just make up, subjectively, conceptions of what are "rights retained by the people" without interpreting any provisions of any constitutions at all; this is so subjective that inevitably federal judges will be using their own values to decide what state and local governments will be "allowed" to do.
Hugo Black was absolutely, staunchly against federal judges making subjective decisions as if they were serving on courts of common law. To him, none of the federal courts, tasked with interpreting federal statutes and the US Constitution, were courts of common law. And if federal judges were, somehow, permitted to make subjective decisions about the "rights retained by the people," it was clearly reminiscent of the conservative Justices who rendered all those pro-laissez-faire decisions in the Lochner era, which was disgusting to him. Those conservative Justices of the early 20th Century who struck down minimum wage laws and price control laws were probably thinking that the Ninth Amendment justified their reasoning too. Black hated it, and he therefore found it far more persuasive, historically, to respect the time-honored, original interpretation of the Ninth, which had come down through the ages: the purpose of the Ninth was to limit the powers of the federal government to nothing more than its constitutionally-delegated powers. "[E]very student of history knows" that that was the originally understood meaning of the Ninth.
It's also important to understand the evolution of writing that lead to the Ninth. In Federalist Paper #84, Hamilton argued that a Bill of Rights does not need to be, and should not be, adopted.
Quote
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and, on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.
(This was quoted by Justice Goldberg in his concurring opinion to Griswold v. Conn.)
This is not a very persuasive argument for why a BoR should not have been adopted, and we should be grateful that Hamilton's view about this did not prevail. But that is not the main point I am driving at. This argument by Hamilton, and some other Federalists, weak as it was, prompted the delegates to the Virginia Ratifying Convention of 1788 to propose a way to rebut the point. The VA convention proposed an amendment to the US Constitution which read:
Quote
That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted for greater caution.
Madison got elected to the US House that year - 1788 - and so served during 1789-1790, and played a crucial role in drafting and pushing for the proposing of several amendments which were to constitute a BoR. He took the proposal drafted at the VA convention, and reworded it as:
Quote
The exception here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted for greater caution.
Then, in June 1789, Madison stood up in the House and discussed his many proposals for amendments that could make up the Bill of Rights, and near the end of his speech he said:
Quote
It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [his version of the eventual Ninth as quoted right above].
(That was also quoted by Justice Goldberg.)
Madison's various proposals for amendments were sent to a congressional committee which reworded many of them, and the Ninth was changed by that committee to what we know it to be now.
Ever since the first time I read the various opinions written by six of the Justices in the Griswold case, I have thought that what Black and Stewart wrote in their dissents was much more persuasive than what Goldberg wrote in his concurrence. But I didn't stop there, just reading those Supreme Court opinions. I read a few additional books, such as Kennedy and Alderman's "In Our Defense," Schwartz's "The New Right and the Constitution," and Ely's famous "Democracy and Distrust." After reading these sources, I realized that Black and Stewart were correct and Goldberg was incorrect.
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