you're reading...

A Constitutional Faith, Hugo Lafayette Black


A Constitutional Faith, Hugo Lafayette Black

A Constitutional Faith is a short 66-page book composed of snippets of three lectures given by Associate Justice Hugo Lafayette Black during his address to Columbia University as part of the James S. Carpentier Lecture series. In these lectures Black outlines his judicial philosophy and addresses criticisms that have been laid against him. He asserts his deep respect for the Constitution and his oath to uphold it. He looks to the Constitution’s history and the literal meaning of its words to ascertain the boundaries of the three branches of federal government. He deplores justices who have tried to either shy away from the powers that have been ascribed to them or who try to cross the boundaries set forth by the Constitution by broadening their own powers under the guise of judicial interpretation. By looking at the meaning of the due process clause of the Fifth and Fourteenth Amendment, and the First Amendment’s protection of freedom of speech, press and assembly, Black shows how the Court has broadened its powers by adding its own personal economic, political, and social views of what is “reasonable” in assessing the constitutionality of statutes.

The due process clause of the Fifth and Fourteenth Amendment state that “No person shall be deprived of life, liberty or property without due process of the law”. The due process clause’s origins can be traced back to Chapter Thirty-nine of the Magna Carta, which reads “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of this land”. Simply stated Chapter Thirty-nine ensures that all individuals are trialled in the same manner under the law of the land. The law of the land requires that all individuals have access to “independent and unprejudiced courts…[that use] established and nondiscriminatory procedures”. As Black points out, the term law of the land is “universally acknowledged” to be synonymous with our Constitution’s due process. Black argues that the Court has strayed away from the original meaning and purpose of the due process clause. The Court, he argues, has been reading the due process clause too expansively and “loosely”.  Instead of trying to determine whether someone has been afforded due process in accordance with the Constitution, justices have been relying too much on their own political, economic and social beliefs to determine what due process ought to entail instead of what it actually entails. For example, in Lochner vs. New York the Court invalidated a New York statute limiting the number of hours that a person can work at a bakery.  The Court’s reasoning was that the statute violated the employers and employees due process because it interfered with their freedom of contract. It is important to note that there is no explicit guarantee of freedom of contract within the Constitution. Instead, Black argues that the justices were bringing in their own economic philosophies into their interpretation of what due process should entail, a power that the Constitution does not grant the judiciary. Black’s argument mirrors Justice Holmes’ dissent in Lochner which warns fellow justices that “A constitution is not intended to embody a particular economic theory and the accident of our finding certain opinion natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution”. Lochner is one of many cases that Black evokes to demonstrate how the Court has expanded its power by relying on its own views of what due process should be instead of what the history of the term and the words of the Constitution entails it to actually mean.

Rochin v. California is another case that Black refers to in order to demonstrate how the Court has expanded its powers through its interpretation of due process. The case involves police officers pumping a suspect’s stomach to find drugs that he had swallowed. The officers then submitted the traces of these drugs as evidence against the suspect. In writing for the majority of the Court, Justice Frankfurter stated that the defendant’s due process rights had been violated. Frankfurter described due process as representing “those canons of decency and fairness which express the notions of justice of English speaking peoples” and “principles that are so rooted in the traditions and conscience of our people as to be ranked as fundamental”. He reasoned that the police officers’ conduct was so contrary to the notions of justice that it “shocked the conscience of even those with hardened sensibilities”.  With this line of reasoning a new test was born – the “shocks the conscience test”. Instead of asking whether someone has been afforded equal protection under the law of the land, or due process by looking at the words of the Constitution and its historical context, justices are now looking within themselves to determine their own ‘feelings’ about a certain statute or conduct. If they feel that a statute or conduct violates the norms of society and “shocks the conscience”, they then deem it to violate the due process clause.  Another problem with relying on interpretations that require justices to determine whether they find something “unreasonable”, “arbitrary”, “capricious”, or “contrary to a fundamental sense of civilized justice” is that what appears “shocking” or “unreasonable” to one person might not be shocking to another. Black argues that while being a justice does require a component of interpretation, this interpretation should be limited as much as possible to the words of the Constitution and its history. Interpretations of the due process clause that use tests such as the shocks the conscience test, only encourage justices to use their own personal sentiments about economic, political, and social issues to interpret whether something is constitutional.

The last segment of A Constitutional Faith is dedicated to the First Amendment. Black focuses on freedom of speech, press and assembly. Black believes that the First Amendment commands an absolute freedom of speech and press. He rejects the balancing act that justices have tried to use to strike a balance between government and individual interests. These only result in what he calls “halfway ground protections”. He is against all libel and censorship laws. Referring to Justice Douglas’s dissent in Roth v. United States, Black points out that the public has the intellectual ability to accept or reject any belief without the aid of government laws. Particularly, censorship of speech against the government runs contrary to the history and spirit of the Constitution. Such censorship should be avoided entirely. The founders knew that that a fundamental part of democracy was the freedom of people to speak against their elected officials and their policies. As Black says, “The lesson of history is crystal clear that the decline of really free political debate is one of the first signs of deterioration in an otherwise free state”. This is why Black also criticizes justices for having formed a “clear and present danger test”. This test is an analyzing tool that allows the Court along with Congress to suppress speech that both branches of government determine to be a threat to the government and public safety. For example, speech that is likely to entice violence against the government can be suppressed under this balancing act. According to Black, the problem with this type of balancing act is that it gives too much power to justices in interpreting whether certain speech is potentially dangerous. Instead of simply looking to the command of the Constitution in determining whether Congress has passed a law that “abridges freedom of speech”, justices have now taken on the role of selectively choosing which speech Congress is allowed to abridge based on the circumstances of the situation. Black argues that this selective picking is “akin to saying that the First Amendment and Bill of Rights can’t be applied unless the Supreme Court thinks it is reasonable to do so”. This is similar to justices invoking their notions of reasonableness when it comes to due process cases mentioned earlier on. The Constitution clearly states in its “plain language” that censorship of speech is not allowed. There are no constitutional exceptions to this rule.

Some argue that Black’s defense of absolute protection of speech disregards circumstances where the government needs to suppress some speech in order to ensure the safety of its citizens. In response to these criticisms Black is quick to draw the distinction between speech versus conduct. He argues that the government does have a right to do something about the latter, but that the prior is protected by our Constitution and is a fundamental part of our democracy. Black argues that the government can take action when speech becomes mixed with and inseparable from illegal conduct. For example, Black says that the government does have a right to regulate picketing and marches. While the words spoken and the signs held during these activities are protected under the First Amendment, the act of patrolling a physical space which is intrinsically tied with picketing and marching, is not protected under the First Amendment.  Looking at the words of the Constitution, Black argues that the Constitution only prohibits the government from passing laws that infringe upon people’s freedom of speech, press, and assembly. The government, he argues, does not have any obligation to provide a public space for these demonstrations. The government is only required to provide a means for people to express their grievances, and these grievances are to be “addressed to the government, not to the public”. Of course a state government can choose to provide a public place for demonstrations, so long as it provides access to these spaces in a nondiscriminatory manner. For example, in Cox v. Louisiana the Court struck down Louisiana’s law barring students advocating for racial equality from marching, because Louisiana had allowed union organizations to protest. Louisiana had failed to provide blanket treatment of different groups with different opinions and instead discriminated against one group whose freedom of speech and assembly it did not agree with.

A Constitutional Faith is another reminder of the difficulties that arise with analyzing the Constitution. There are numerous ways to approach and interpret this historical and profound document. Black chooses to focus on the literal meaning of the words of the Constitution and the historical context in which it was written. With the due process clause, Black argues that the Court has deviated from the original meaning and purpose of the term, which was to simply ensure that all individuals are treated equally under the law of the land. Instead of determining whether someone has been afforded due process in accordance with the Constitution’s words and its history, justices are now adding other components to their assessment of whether due process has been achieved, such as the “reasonableness” of statutes. The problem with adding these additional components is that justices no longer use the Constitution as their primary reference point to determine whether due process was afforded. Rather, they turn to their own beliefs of what constitutes reasonableness in today’s society. Black sees this method of interpretation as a clear violation of the oath taken by justices to abide by and defend the Constitution as it is written. Black also discusses the First Amendment and shows how personal attitudes of what is reasonable are also slipping into the interpretation of this amendment. He argues that all speech regardless of how inappropriate or dangerous it might seem, is protected under the First Amendment.  Balancing tests like the “clear and present danger test” and laws that prohibit libel are merely equivalent to half extensions of the protections that are guaranteed under the Constitution. However, Black is clear to draw the distinction between speech and conduct. When speech is mixed with conduct that is not protected under the Constitution such as picketing, the government is allowed to regulate the non-constitutionally protected activity. The government can regulate the activity so long as it intervenes in a nondiscriminatory manner and treats all groups with the same set of rules. Aside from showing how the Court has strayed away from the literal meaning and historical interpretation of the Constitution in regards to due process and the First Amendment, A Constitutional Faith is a reminder to the reader of the role that the Constitution has ascribed to the judiciary and the limit of the judiciary’s powers. The role of the judiciary is to uphold the Constitution as it is written. Reading anything of course requires interpretation. This interpretation comes with great responsibility and justices should not broaden their own powers under the guise of interpretation, even if this expansion of power is the result of pressure from the public. As Black notes, “There is a tendency now among some to look to the judiciary to make all the major policy decisions of our society with the belief that the Supreme Court will reach a faster and more desirable resolution of our problems than the legislative or executive branches of the government”. The problem with this however, is that the judiciary has been given the power to interpret laws, not to make them. It was not the founders’ intentions to give unlimited power to a small group of unelected justices. Instead, the public should look to their elected representatives to change laws and amend the Constitution if they feel the need to.




  1. Pingback: Another Facebook response……Police road blocks | subjectivereasoning - June 1, 2013

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: