Abstract
The speech struck some of America’s legal cognoscenti as quaintly naïve, at best. The date was February 17, 1960. The speaker was US Supreme Court Justice Hugo Lafayette Black Jr., and the occasion was New York University School of Law’s James Madison Lecture. There were, Justice Black proclaimed to a packed hall, “absolutes” in the Bill of Rights, “put there by men who knew what words meant, and [who] meant their prohibitions to be absolutes.” This was especially the case, Black emphatically insisted, with the First Amendment. Its words were “plain” and “easily understood.” No law means no law.1
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Notes
Justice Black’s lecture was later published in the NYU Law Review. See Hugo L. Black, “The Bill of Rights”, New York University Law Review 35 (1960): 865–881.
Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill Company, 1962), 86.
Mark Silverstein, Constitutional Faiths: Felix Frankfurter, Hugo Black and the Process of Judicial Decision Making (Ithaca, NY: Cornell University Press, 1984).
Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago, IL: University of Chicago Press, 2004)
Joseph Alsop and Turner Catledge, The 168 Days (New York: Doubleday, Doran & Co., 1938), 301
Howard Ball, Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996), 93
William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 186.
Tony A. Freyer, Hugo L. Black and the Dilemma of American Liberalism, 2nd ed. (New York: Pearson Longman, 2008), 43.
Indeed, we would argue that certain and specific “regime principles” informed and shaped Justice Black’s understanding of freedom of speech and its role in a democracy. As Mark Graber has written, regime politics scholars suggest that Supreme Court decision making is “politically constructed.” They do not assert that it is politically determined. This still leaves a great deal of room for the justices to shape the contours of constitutional doctrine. Mark A. Graber, “Constructing Judicial Review”, Annual Review of Political Science 8 (2005): 427.
Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948; reprint New York: Lawbook Exchange, 2011), 23
On Meiklejohn’s claim that “private” speech is entitled to less protection, see Gerald Gunther and Kathleen M. Sullivan, Constitutional Law, 13th Edition (Westbury, NY: The Foundation Press, 1997), 1027.
See, for example, Justice Black’s comments in a letter to Justice Roberts regarding Hague v. CIO, 307 U.S. 496 (1939) (striking down a parade permit regulation because it granted officials too much discretion), quoted in Tinsley E. Yarbrough, Mr. Justice Black and His Critics (Durham, NC: Duke University Press, 1988), 177.
Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 370–371.
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of1798 to the War on Terrorism (New York: W. W. Norton, 2004), 334.
Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 164–165.
See Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, MA: Harvard University Press, 2000), 76–93.
For a brief account of the case, and Barenblatt’s own statement about it, see Peter H. Irons, The Courage of Their Convictions (New York: Free Press, 1988), 81–104.
Black retired from the Court on September 17, 1971, and died a week later. Yarbrough, Mr. Justice Black, 159–185, discusses the claims of scholars that Black was inconsistent over the course of his career, going from an absolutist position to a more restrictive one in the 1960s. See also, Andrew Martin and Kevin Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999”, Political Analysis 10 (2002): 134–153.
See Yarbrough, Mr. Justice Black, 159–185 and Sylvia Snowiss, “The Legacy of Justice Black”, Supreme Court Review 1973 (1973): 237.
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© 2015 Helen J. Knowles and Steven B. Lichtman
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Paris, M., McMahon, K.J. (2015). Absolutism and Democracy: Hugo L. Black’s Free Speech Jurisprudence. In: Knowles, H.J., Lichtman, S.B. (eds) Judging Free Speech. Palgrave Macmillan, New York. https://doi.org/10.1007/978-1-137-41262-1_4
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