Ku Klux IconRobert B. Propst September/October 1998 While a student at the University of Alabama in 1952, I interned with a national public accounting firm in Atlanta. On my way to work I sometimes passed what was probably the first "adult" store I had ever seen. I remember a large sign out front with quotes from opinions of U. S. Supreme Court associate justice Hugo L. Black. In recent years my office has been in the Hugo L. Black U.S. Courthouse in Birmingham, Alabama. The foyer walls have bronze plaques, also containing quotes from Justice Black.
I have often wondered what made Justice Black tick. I realize that he is an icon to many in law, the media, and academia, but my study of his career and his judicial reasoning raises questions about the First Amendment jurisprudence that he is significantly credited with establishing. "Expedience" is a continuous theme in his career.
The Pre-Court Years
After he became a lawyer in Birmingham, Alabama, Black joined the Ku Klux Klan. In the early 1920s he represented a preacher charged with murdering a Catholic priest who had married the defendant's daughter to a Puerto Rican. Black appealed to both the religious and racial prejudices of the jury (he gave the Klan members on the jury the Klan sign), which acquitted the defendant. He had similar success in less notorious but similar cases.
In 1924, when U.S. senator Oscar W. Underwood from Alabama denounced the Ku Klux Klan, he knew that he could not retain his seat in 1926. John F. Kennedy's book Profiles in Courage recognizes Underwood's courage. Kennedy's book quotes another writer: "Had Senator Underwood played the game in Alabama in accord with the sound political rule of seeming to say something without doing so, there would have been no real opposition to his remaining in the Senate for the balance of his life." Black did not denounce the Klan, but joined it instead and was given a lifetime membership. He gave a letter of resignation to be disclosed when convenient. The oath he took included a promise to "preserve by any and all justifiable means and methods . . . white supremacy" (Roger K. Newman, Hugo Black, A Biography, pp. 91, 92). He made open appeals to its members and received its support when he ran for and was elected to the U.S. Senate, taking Underwood's position in 1926. During the campaign he addressed nearly all the 148 Klan Klaverns in Alabama (Ibid., p. 104). His total votes received closely paralleled the total Alabama Klan membership (Ibid., p. 115). He acknowledged that he owed his victory to the Klan. To a Klan gathering he stated: "I desire to impress upon you as representatives of the real Anglo-Saxon sentiment that must and will control the destinies of the stars and stripes, that I want your counsel" (Ibid., p. 116). Statements made by him during his campaign would today likely disqualify him from being principal at Wedowee, Alabama, High School.
In 1931 Black told an Alabama audience: "Our country is Christian. . . . The great Webster spoke right when he said that Christianity is the common law of the United States" (Ibid., p. 146). He told another Alabama audience that the real cause of the Civil War was not slavery but states' rights and that the South should be proud of its history (Ibid.).
As a U.S. senator, he filibustered against anti-lynching bills proposed in the U.S. Congress (Gerald T. Dunne, Hugo Black and the Judicial Revolution, p. 48). Newspapers accused him of ignoring the Fourth Amendment during Senate investigations. He led President Roosevelt's fight to "pack" the Supreme Court. Most constitutional scholars have condemned this effort, which was defeated. Roosevelt recognized his effort by nominating him to the Supreme Court of the United States. He initially denied that he had been a member of the Klan, or evaded the issue, and was confirmed and appointed as a Supreme Court justice. He later justified his Klan membership by saying, "I was joining every organization in sight. . . . I wanted to know as many possible jurors as I could" (Ibid., pp. 97, 98).
The Court Years
As a Supreme Court justice, Black voted to uphold the constitutionality of the internment of Japanese citizens, later saying, "They all look alike" (Ibid., p.318). He voted to uphold the constitutionality of poll taxes and voted to hold Section 5 of the Voting Rights Act of 1965 unconstitutional. He dissented in Griswold, precursor of and precedent for Roe v. Wade. Rather than decide Brown v. Board of Education on an obvious and immediate equal protection basis, he joined in a social engineering decision that led opposing forces to believe that they could continue to deny or delay this clear constitutional entitlement. Ironically, his icon status was enhanced because the very Alabama people whose support he sought in 1926 treated him as a traitor after 1954.
I reference Black's background, his votes in the Senate, and some of his opinions on the Supreme Court to demonstrate that his icon status is primarily attributable to his First Amendment jurisprudence. He is credited by members of the press, the entertainment media, and by his other supporters with leading the fight in this area. That's what my building celebrates.
Black became the leading exponent of the doctrine of total "incorporation" of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. When he began espousing the total incorporation doctrine, two Stanford University law professors wrote law review articles suggesting that he had manipulated and manufactured history in order to sell the doctrine. They said that he had been "willing to distort history, as well as the language of the framers, in order to read into the Constitution provisions [he thought] ought to be there" (Dunne, p. 263). His view of judicial activism during his Court-packing period was entirely different from his view as a member of the Court.
Black had an "absolutist" free speech philosophy. He early on joined the free-spirited Justice Douglas in a view that even obscenity was protected by the First Amendment (U.S. v. Roth). The total Court initially rejected this position, but Black and others gradually eroded the Court's position to the point that "adult" bookstores, magazines, movies, and pornography have grown exponentially. His popularity with the press and entertainment media was firmly established.
One of his biographers stated, "A more formally irreligious man would have been hard to find" (Newman, p. 521). He set out to bring about a total separation of religion and government. He was aided in this by his total incorporation theory (as opposed to the earlier "ordered liberty" approach previously taken by the Court). His position on religion was consistent with his anti-Catholic stance taken during his Ku Klux Klan days. It was also consistent with his recommending to others that they read the writings of atheist Bertrand Russell, who felt that all religions are untrue and harmful