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Hugo Black's legacy: Man of the century, or political apathy?
By Robert S. Sargent, Jr.
The always-interesting columnist for the Village Voice, Nat Hentoff, in his latest book, The Nat Hentoff Reader, nominates Justice Hugo Black as "My Man of the Century" because, "The one justice who passionately kept trying to persuade his colleagues that the entire Bill of Rights be incorporated into state laws was Hugo Black."
As we know, the Bill of Rights was deliberately left out of the original Constitution. As Alexander Hamilton wrote in The Federalist Papers (No. 84), "I...affirm that bills of rights...are not only unnecessary...but would even be dangerous. They would contain various exceptions to powers, which are not granted; and on this very account, would afford colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
When the Bill of Rights amended the Constitution in 1791, Hamilton's explanation for excluding them was incorporated in the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. In other words, just because we have told you (the federal government) a few rights you can't intrude upon doesn't mean you can intrude upon any others. The people through their state legislators shall decide what rights they retain, not the federal government.
In 1868, in order to protect ex-slaves, the 14th Amendment did apply certain rights that the states couldn't intrude upon: "Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Somehow Hugo Black, in his dissent in Adamson v. California (1947) found this to mean that all the rights enumerated in the Bill of Rights applied to the states: "My study of the historical events that culminated in the Fourteenth Amendment...persuades me that one of the chief objects that the provisions of the Amendment's first section were intended to accomplish was to make the Bill of Rights applicable to the states." One must ask, if this was one of the "chief objects," why didn't they put it in the text? (For a scholarly, devastating refutation of this interpretation of "the original purpose," see Raoul Berger's book on the 14th Amendment, "Government by Judiciary.")
This concept of "Incorporation Theory" goes against the idea of federalism envisioned in the Constitution. Now that Justice Black's dissent is accepted jurisprudence, state laws can be reviewed in federal court, which means that the Supreme Court now decides what our rights are. The 9th Amendment in its original sense is now irrelevant.
James Madison, in the Federalist No. 45, wrote: "The powers reserved to the several states will extend to all the objects which concern the lives, liberties and properties of the people," (those concerns protected by the 9th Amendment). It is my belief that when the people, through their state legislatures, decide these "concerns," they are much more likely to be interested in the political process than when a distant body of nine Justices usurps these powers.
About the time the Supreme Court started reviewing state laws for Bill of Rights conformity, participation in politics started declining. The percentage of the voting age population who bother to vote has been declining since the '60s (figures are from the Federal Election Commission). In presidential elections the figures are: 1960 - 63%; 1972 - 55%; 1984 - 54%; 1996 - 49%. The congressional elections are worse: 1962 - 47%; 1974 - 38%; 1986 - 36%; 1998 - 36%. I can't believe this is a coincidence.
While applying the Bill of Rights to the states sounds positive, the consequences, on balance, have been negative. It can be argued that Hugo Black and his legacy are largely responsible for the indifference towards politics today. "Rights" arouse passion in people, and deciding those rights through their state legislatures encourages participation in the political process. I believe that when moral issues such as abortion, gay rights, women's rights and so on are decided democratically, both sides of the issues accept the results (vowing to work harder next time). When the process is taken away from them, the people feel left out of the process. This leads to passionate fringe groups often resorting to violence as the only way to make their voice be heard, and political apathy by the general populace.
Robert S. Sargent, Jr. can be reached at email@example.com.
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