Happy Birthday, Hugo Black!

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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.

[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.