Review of “Noise Wars: Compulsory Media and Our Loss of Autonomy” by Robert Freedman

On our sister blog, Rhapsody in Books, we recently reviewed the first two books of the Chaos Walking Trilogy, in which the author, journalist Patrick Ness, asks what would happen if there was no escape from noise, not even from the thoughts of others. His speculations on the resulting dystopia are fascinating.

Robert Freedman looks at our contemporary society and suggests that digital media almost takes us down that same road. As Freedman suggests,

At an accelerating pace, audio and video media are becoming ubiquitous on planes, trains, buses, cabs, street corners, building lobbies, elevators, offices, stores, bars, restaurants, hospitals, doctors’ offices, banks, gyms, coin laundries, even restrooms — in short, every setting in which we conduct the business of our lives.”

His book attempts to show how digital media are so much more invasive than print media, how they have been utilized to take advantage of captive audiences, and where the movement for and against audience captivity is heading.

Freedman observes:

It’s because of its invasive nature that industry insiders refer to audiences of strategically located digital media as ‘captives.’ . . . The massive investment in captive-audience platforms isn’t being made on the hope that audiences will consume this unsolicited messaging; it’s being made with the understanding that the audiences are held hostage to it, and are thus going to consume the messaging whether they want to or not.

As George Schweitzer, marketing chief for CBS, a big captive-audience player, has said, ‘We’re looking for places we can be intrusive,’ where ‘you can’t turn us off.’”

Freedman touches upon, but does not discuss in detail, the legal issues presented by subjecting captive audiences to media intrusion. [After all, this is not a legal treatise.] The leading case involving the rights of the “captives” was decided in 1952. The District of Columbia Public Utilities Commission began to pipe in commercial radio on a publicly funded commuter streetcars in Washington D.C. A regular passenger complained, alleging that the intrusive radio broadcasts infringed his Fifth Amendment “liberty” without due process of law. Justice Harold Burton, speaking for the majority, ruled:

This position wrongly assumes that the Fifth Amendment secures to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. However complete his right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance.”

Justice Harold Hitz Burton

The “rights of others” he referred to were the rights of others to listen to the radio programs. The Public Utilities Commission had made a finding that the radio broadcasts would benefit the public. Moreover, the Court found that the passengers had given their tacit consent to be subjected to the broadcasts by choosing to ride on the streetcars.

Justices Frankfurter and Douglas saw the matter differently. Justice Felix Frankfurter was so incensed by being subjected to programs he did not choose that he recused himself from the case because, as he wrote: “My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it.” Note that he perceived himself as a “victim” of the practice.

Justice William O. Douglas scathingly dissented from the majority position. His dissent was eloquent, but (as is somewhat typical of his opinions) not well grounded in constitutional language. He reasoned that the “liberty” protected by the Fifth Amendment included a right to “privacy,” a word that does not appear in the Constitution. He pointed out:

The government may use the radio (or television) on public vehicles for many purposes. Today, it may use it for a cultural end. Tomorrow, it may use it for political purposes. So far as the right of privacy is concerned, the purpose makes no difference. The music selected by one bureaucrat may be as offensive to some as it is soothing to others. The news commentator chosen to report on the events of the day may give overtones to the news that please the bureau head, but which rile the streetcar captive audience. The political philosophy which one radio speaker exudes may be thought by the official who makes up the streetcar programs to be best for the welfare of the people. But the man who listens to it on his way to work in the morning and on his way home at night may think it marks the destruction of the Republic.”

He further reasoned, “One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes . . . But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen.” Public Utilities Comm’n. v. Pollak [343 U.S. 451 (1952)] .

Justice William O. Douglas

Although Justice Douglas did not establish a right of privacy in this case, the concept would come to fruition a decade later in the case of Griswold v. Connecticut, where the Court struck down a state statute that prohibited the dissemination of contraception devices.

An important aspect of the Pollak case is that even if the plaintiff had been successful in establishing a Fifth Amendment right of “privacy,” that right would have been protected only against governmental intrusion. The Public Utilities Commission was deemed to be an instrumentality of the federal government, hence covered by the Fifth Amendment. The case could not have established a right to freedom from intrusion from private parties.

Captive audience issues were raised in a different context in an earlier case, Kovacs v. Cooper, 336 U.S. 77 (1949). There the Supreme Court ruled against a different type of captive-audience media: the use of a sound truck to spread “loud and raucous” audio content. In this case, the court affirmed the constitutionality of a city ordinance against that medium because, unlike print media, it made it impossible for people to choose whether or not they consumed it. In other words, unlike the passengers on the streetcars, the recipients of the audio content weren’t even given the opportunity to provide their tacit consent.

The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it,” the Court said in its decision. “In his home or on the street, he is practically helpless to escape this interference with his privacy by loudspeakers except through the protection of the municipality.”

Nor, said the Court, is such a restriction an infringement on free speech, because the restriction wasn’t on content but rather the mode of transmission:

We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets. . . . It is an extravagant extension of due process to say that, because of it, a city cannot forbid talking on the streets through a loudspeaker in a loud and raucous tone. . . . Opportunity to gain the public’s ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets. The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself.”

The procedural context of this case was quite different from that of the Pollak case. Here, the Court upheld the power of a municipality to outlaw the expression of opinions through loud speakers. There seems no reason to think the Court would not have allowed the DC Public Utilities Commission to do the same in the Pollak case. The text of this decision, which looks at a whole range of captive-audience issues, is reproduced in its entirety in the appendices.

Looking at the two cases together, the good news is that the government has the power to regulate the form information dissemination is to take. Thus, it can protect us from private intrusions on our privacy without infringing on the intruders’ First Amendment right of free speech. The bad news is that we are dependent on the government to erect protections against intrusions of privacy. We have no independent constitutional right to “liberty” that extends its protection to private intrusions on our privacy; moreover, our “liberty” is somewhat limited against governmental intrusion. (How these precedents will mesh with the expanded notion of privacy that was established in Griswold for private sexual behavior remains to be seen.) And certainly we must ask ourselves the questions posed by the eminent legal scholar Charles Black:

What are the freedoms, franchises, autonomies, integrities, the diminishment of which cheapens the worth of our citizenship and our humanity?” Secondly, since the forbidding of deprivation must really forbid that which really deprives: “What actions make unavailable our enjoyment of freedom?” And thirdly, given the multiform, complex, and novel interventions of government in affairs: “What relations of sponsorship between government and the ‘private’ encroacher on freedom, ought to be looked on as amounting to a wrongful incidence on individual man, of the power of the Entirety?” Charles L. Black, Jr., “The Plight of the Captive Auditor,” Columbia Law Review, 166 (1953)

Freedman’s conclusion does not seem unreasonable:

Really, the only effective rule for accommodating people of different needs and sensitivity is common courtesy borne out of empathy. [He delineates specific actions that can be taken to show respect for the noise sensitivity of others.] There has been a rash of articles in the major media in the last couple of years, many coming in the wake of disturbing acts of random violence, suggesting that empathy is on the wane. That’s for others to decide, but in a world in which we can’t take for granted courteous use of highly intrusive media, it’s at least worth advocating for the appropriate use of consumer advisories.”

Lest it sound insignificant, Charles Black put the matter into perspective:

I think this practice raises issues of high principle. I say this at the start because the toughest obstacle in dealing with the subject in a vein of earnestness is the often-encountered feeling that the whole matter is rather trivial–a bit of a fuss about nothing. I suggest that this feeling, where present, may be in its origin associative rather than logical–that it fallaciously evaluates the interests invaded by forced listening in terms of the incontrovertible triviality and trashiness of much of the stuff the captive audience has to listen to. To drag this association into the open is to rob it of its force. Subjecting a man, willy-nilly and day after day, to intellectual forced-feeding on trivial fare is not itself a trivial matter; to insist, by the effective gesture of coercion, that a man’s right to dispose of his own faculties stops short of the interest of another in forcing him to endure paid-up banality, is not itself banal, but rather a sinister symbol of relative weighting of the independence of the mind and the lust to make a buck.”

Freedman’s concerns are real and legitimate. However, we would be much more concerned about audio intrusion than visual intrusion because it is less avoidable. [In fact, we note the somewhat humorous fact that music automatically begins to play when you access the page featuring this book on the publishers' website!] We would point out that one’s personal space is more likely to be violated by loud cell phone users or just loud fellow passengers sitting directly behind you in a plane or on a train than by intrusive captive audience advertising. And for such occasions, Freedman’s plea for “common courtesy” is well taken.

You can learn more on this topic at the author’s website (where no music plays, thankfully), here.

December 29, 1808 – Birthday of President Andrew Johnson

Andrew Johnson (December 29, 1808 – July 31, 1875) was the 17th President of the United States (1865–69), succeeding to the Presidency upon the assassination of Abraham Lincoln. He was the first U.S. President to be impeached.

Who was Johnson? Johnson was a former tailor’s apprentice, who rose to prominence as a politician in prewar Tennessee. In 1861, he became the only senator from a seceding state to declare his loyalty to the Union. In 1864 he was nominated as vice president to symbolize the Union’s desire for postwar unity.

Lincoln rarely met with Johnson after the election, and Johnson played no active role in his administration. Lincoln had many assassination threats, and it is an interesting question as to how responsible he was in letting the Party select such a man. As historian Eric Foner describes Johnson:

“…the assassination of Lincoln brought into the White House a man who lacked the personal qualities and political sagacity to provide the nation with enlightened leadership when it was most needed. Johnson was a lonely, stubborn man with few confidants, who seemed to develop his policies without consulting anyone, and then stuck to them inflexibly in the face of any and all criticism. He lacked Lincoln’s ability to conciliate his foes and his capacity for growth… Unlike Lincoln, Johnson had no real standing in the Republican Party and no sensitivity to the nuances of northern public opinion. Moreover…Johnson held deeply racist views regarding blacks, and proved unable to envision their playing any role in the South’s Reconstruction, except as a dependent laboring class returning to work. … Taken together, Johnson’s beliefs, prejudices, and personality traits were a recipe for disaster at a time when an unprecedented national crisis put a premium on the capacity to think in new and creative ways.”
(Eric Foner, “Forever Free: The Story of Emancipation & Reconstruction”)

Johnson is consistently ranked by historians as being among the worst U.S. presidents. Among his many dubious achievements, he vetoed the first Civil Rights Act, calling it discriminatory toward whites. There were two attempts to remove President Andrew Johnson from office, but both failed.

October 16, 1859 – John Brown and His Followers Seize Harpers Ferry

On October 16, 1859, abolitionist John Brown (a white man known for his violent opposition to slavery) and twenty-one armed followers seized the United States Armory and Arsenal at Harpers Ferry, Virginia (now West Virginia). The would-be revolutionaries, including three free blacks, one freed slave, and one fugitive slave, hoped to incite a rebellion of freed slaves and overturn the institution of slavery by force.

John Brown as a younger man

The small band was no match for the U.S. Marines however, and on October 18, under Colonel Robert E. Lee, the Marines stormed the armory, freed the hostages, and arrested Brown and his men.

Brown was tried for treason by the state of Virginia, but stated that he believed he was doing “God’s work” in trying to end slavery.

On November 2, 1859, his last speech, given in court, averred:

This court acknowledges, as I suppose, the validity of the law of God. I see a book kissed here which I suppose to be the Bible, or at least the New Testament. That teaches me that all things whatsoever I would that men should do to me, I should do even so to them. It teaches me, further, to ‘remember them that are in bonds, as bound with them.’ I endeavored to act up to that instruction. I say, I am yet too young to understand that God is any respecter of persons. I believe that to have interfered as I have done, as I have always freely admitted I have done in behalf of His despised poor, was not wrong, but right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I submit; so let it be done!”

The jury trial ended in Brown’s conviction and death sentence. Brown was executed December 2, 1859.

If you are familiar with Lincoln’s speeches, you may have noticed the similarities between Brown’s last speech and Lincoln’s second inaugural address, when Lincoln declaimed:

If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

In point of fact, many of those opposed to slavery voiced the same ideas at this time in history. Harbingers of Lincoln’s speeches can be found throughout the period. In general, however, Lincoln managed to express the sentiments better than others. (See, for example, some of the many analyses of Lincoln’s first inaugural speech, in which he changed Secretary of State Seward’s proposed words to sound more felicitious.)

One other connection between Brown and Lincoln was more unfortunate. John Wilkes Booth hated both men passionately; he came up to Harper’s Ferry in 1859 to witness Brown’s execution and help ensure there would be no attempts to rescue him by supporters. On April 14, 1865, he saw to the execution of Lincoln himself.

June 4, 1923 – The Supreme Court Decides Meyer v. Nebraska

In Meyer v. Nebraska, 262 U.S. 390 (1923), the U.S. Supreme Court held that a 1919 Nebraska law prohibiting the teaching of foreign languages to school children before high school violated the Due Process clause of the Fourteenth Amendment. This case is 14th on the list of most frequently cited U.S. Supreme Court cases.

Robert T. Meyer, the Plaintiff, an instructor in Zion Parochial School, was tried and convicted in the District Court for Hamilton County, Nebraska, for violating a state statute that forbade teaching “any subject to any person in any language other than the English language” by reading in German to a ten-year-old child. The statute further prohibited teaching foreign languages per se to any pupil who had not yet “attained and successfully passed the eighth grade.” The statute had been enacted during the First World War, ostensibly as an act of the police power of the state during “an emergency.”

The Nebraska Supreme Court affirmed the lower court, finding the statute to be a valid exercise of a state’s police power. The State Supreme Court wrote: “To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country.”

Justice James C. McReynolds

Meyer appealed to the U.S. Supreme Court, which invalidated the statute as applied. Justice James C. McReynolds, articulated the principal issue before the Court thusly:

The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

He commented, “While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” This specific enumeration was one of the first and most articulate explications of just what liberties were protected by the general language of the Amendment.

Was teaching or learning a foreign language one of these liberties? And if so, could it be abridged by the state’s exercise of its police power? McReynolds wrote:

That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution — a desirable end cannot be promoted by prohibited means.”

He added: “We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State.”

Further, Justice McReynolds denied that any “emergency” still prevailed that would justify the proscription of teaching a child some language besides English: “no adequate reason therefor in time of peace and domestic tranquility has been shown.”

Justices Oliver Wendell Holmes and George Sutherland dissented, finding a valid exercise of the police power. Justice Holmes wrote: “We all agree, I take it, that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this, but I cannot bring my mind to believe that, in some circumstances, and circumstances existing, it is said, in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the state where a child would hear only Polish or French or German spoken at home, I am not prepared to say that it is unreasonable to provide that, in his early years, he shall hear and speak only English at school. But, if it is reasonable, it is not an undue restriction of the liberty either of teacher or scholar. No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is “whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.” [Citations omitted.] I think I appreciate the objection to the law, but it appears to me to present a question upon which men reasonably might differ, and therefore I am unable to say that the Constitution of the United States prevents the experiment’s being tried.”

Curiously, Justice Holmes agreed with the majority in a companion case insofar as it held a provision of an Ohio statute directed solely at the German language was unconstitutional.

The Far Reaching Impact of This Case

Meyer, along with Pierce v. Society of Sisters (1925), is often cited as one of the first instances in which the U.S. Supreme Court asserted the doctrine of substantive due process in the area of civil liberties. Justice Kennedy has speculated that both of those cases might have been decided under different rationales today: “Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion.” (United States v. Caroline Products Co., providing a rationale for substantive due process for civil liberties, was not decided until 1938. See our analysis of that famous case here. )

Current Supreme Court practice avoids reliance on the Due Process Clause where a more specific provision (such as the First Amendment) is applicable. Famed Yale constitutional scholar Charles Black would agree with the McReynolds enumeration of rights, but would assert those rights under the “privileges and immunities” clause rather than the due process clause of the Fourteenth Amendment.

Meyer has received notoriety far beyond its limited holding. The laundry list of rights covered by the 14th Amendment first articulated by McReynolds served as the basis for later cases to expand that list through analogy. For example, the Court found a limited right to privacy that included the right to access to contraceptives in Griswold V. Connecticut.

The right to marry, specifically mentioned by Justice McReynolds, has been cited frequently by advocates of gay rights to be a basic human right, available to all people, regardless of sexual preference.

This case is also is often cited in matters involving the movement for bilingualism in the schools and courts, given the vast numbers of Spanish-speaking immigrants now living in the United States.

More recently, the principle of Meyer has been used to augment decisions based on First Amendment rights, ruling that the suppression of books by a school board deemed “anti-American” violates the Constitutional right not to have prescribed “what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” (“Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom.” Board of Education v. Pico, 457 U.S. 873, 1982)

As Laurence Tribe notes in American Constitutional Law (2nd Ed, p. 1318):

Both Meyer v. Nebraska and Pierce v. Society of Sisters (268 U.S. 510 in 1925) [Justice McReynolds was the author of the majority opinions in both cases] nearly always cited in tandem, have remained durable and fertile sources of constitutional doctrine concerning the nature of liberty, the respective rights of social institutions, and the limits of governmental power to homogenize the beliefs and attitudes of the populace. The cardinal principle animating the Court’s decisions, despite the expected bow to liberty of contract, was that the state had no power to ‘standardize its children’ or ‘foster a homogeneous people’ by completely foreclosing the opportunity of individuals and groups to heed the music of different drummers.”

July 24, 1914 – Birthday of Kenneth Bancroft Clark, and The Black Doll Study

Kenneth Clark was a psychologist, educator, and social reformer who dedicated his life to the cause of racial justice. At Howard University, he led demonstrations against segregation in Washington, D.C. He also met his future wife, fellow psychology student Mamie Phipps, who became his key collaborator. They moved to New York to attend Columbia University, where, in 1940, Clark became the first African American to receive a doctorate in psychology from that institution. Two years later, Clark became the first black permanent professor at City College of New York, where he remained until his retirement in 1975.

According to Columbia University’s “Notable New Yorkers,” “Kenneth and Mamie Clark conducted many studies on the effects of racism on child development, finding that segregation was psychologically damaging to both black and white children. In one famous study, they found that black children as young as 3 years old preferred white dolls to black dolls. This study was cited by the U.S. Supreme Court in the landmark 1954 decision Brown v. Board of Education, which declared segregated education unconstitutional. Clark also traveled the country, serving as an expert witness for the NAACP in its legal struggles against segregation in the 1950s.”

Clark authored many books on the effects of prejudice on children. He and his wife founded a clinic for child development in Harlem, and in the sixties, Clark helped establish the Harlem Youth Opportunities Unlimited, a project that influenced President Lyndon Johnson’s War on Poverty program. Kenneth Clark died at his home in 2005.

Fifty years after psychologist Kenneth Clark conducted his doll test, a 17-year-old filmmaker redid the social experiment and learned that not much has changed. DiversityInc. Magazine reported that in 2005, Kiri Davis, a high-school teen, sat with 21 black kids in New York and found that 16 of them liked the white doll better. Watch this amazing video recommended by Zetta Elliott to see what happened in this study:

And it is still not easy to get ethnic dolls that are not just tan counterparts to white dolls. A couple of companies have made a start. Positive-Identity not only has a couple of black dolls, but three baby dolls of note: an African baby, a dual-heritage baby, and an East Asian baby.

Dolls Like Me has some beautiful multicultural dolls, books, and gifts. The dolls from Jambo Kids represent a range of cultures: Asian, African, African American, Hispanic, North American, and Russian.

April 14, 1873 – The Supreme Court Decided The Slaughterhouse Cases

The Background

Slaughter-House Cases, 83 U.S. 36 (1873) (a consolidation of three law suits) was the first test of the relatively new Fourteenth Amendment to the Constitution (ratified in 1870). This opinion is viewed as pivotal since it narrowly construed Section 1 of the Fourteenth Amendment to protect only “privileges or immunities” conferred by virtue of citizenship of the United States but not those conferred through state citizenship, a distinction that persists to this day. Moreover, some constitutional scholars (e.g. the eminent Charles L. Black of Yale) blame the opinion for setting back the cause of human and civil rights by eviscerating an important clause of the Fourteenth Amendment and forcing the Supreme Court to make some strained interpretations of other clauses in order to effect rational justice and promulgate ordered liberty.

The Fourteenth Amendment, Section 1, reads in full: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

The cases were brought by the butchers of New Orleans to invalidate a Louisiana statute that: limited the places in which animals could be slaughtered for food; granted a monopoly to a single private company to manage and operate slaughterhouses; and required butchers to pay a fee to that company to engage in their trade of slaughtering animals and preparing meat for human consumption. Of the 300-some suits that were originally filed, three were consolidated and made it to the U.S. Supreme Court.

The butchers contended that the statute violated the Thirteenth Amendment by imposing “involuntary servitude” on them, and violated the Fourteenth Amendment by abridging “privileges and immunities,” denying “equal protection of the laws,” and depriving them of “liberty and property without due process of law.” The cases were disposed in a single opinion by Justice Samuel F. Miller, writing for a majority of 5-4.

The State of Louisiana argued that the rationale for the statute was to protect public health by confining a noxious activity to limited places, but most modern economists would view it as legalized monopoly created by a corrupt legislature to benefit a few well connected cronies of legislators.

The Opinion

Justice Miller pointed out that the statute did not prevent butchers from plying their trade: “It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place.”

Justice Samuel F. Miller

Miller saw the legislation as an exercise of the “police power” of the state, a power that was “incapable of any very exact definition or limitation,” but under which “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State.”

The plaintiffs contended that the state exceeded its power by conferring the police power on a private company. The Court rejected that argument, saying, “If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate.” In other words, states had the power to designate individuals to enrich themselves by performing functions of the state– unless of course that that power was circumscribed by one of the then new (13th through 15th) amendments.

The Court’s reasoning, rather than its somewhat limited holding, accounts for the historical significance of these cases.

The Court dismissed the plaintiffs’ Thirteenth Amendment argument [“involuntary servitude”] on a sound historical analysis. The Thirteenth Amendment was directed at abolishing slavery and practices close to slavery, and certainly did not insulate New Orleans’ butchers from limited regulation of their trade.

The Court also paid short shrift to the plaintiffs’ due process and equal protection arguments brought under the Fourteenth Amendment.

The due process language had been around since the Fifth Amendment [where it applies to the federal government, not to the states] and “it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.”

As to the equal protection clause, Miller opined, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”

Much of the opinion was devoted to the analysis of the “privileges and immunities” clause. Miller noted that the 14th Amendment distinguished between citizenship of a state and citizenship of the United States. He then observed that the amendment expressly applied only to the privileges and immunities arising from citizenship in the United States. From this he concluded that the amendment did not prevent states from abridging privileges and immunities arising from citizenship of the state as opposed to citizenship of the United States.

The distinction was crucial because Miller opined that the privileges and immunities arising from state citizenship were the really important ones, but they were not protected by the amendment! The state privileges were “more tedious than difficult to enumerate.” They were “all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.”

But if these essential rights were not protected from state encroachment, what rights were protected? Miller listed a few: “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions…free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.” Others included “the care and protection of the Federal government over…life, liberty, and property when on the high seas or within the jurisdiction of a foreign government….The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus….The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State…[and the right to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”

But the rights asserted by the plaintiff butcher in these cases did not fit within those national rights, and hence were unprotected by the amendment. Miller’s concern seems to have been that to hold otherwise, the Supreme Court would find itself “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”

The Dissent

The famous dissent by Justice Stephen Field began by saying that the Louisiana statute went well beyond what was necessary to protect the citizens from the unhealthy aspects of operating slaughterhouses, and thus was not merely an exercise of the state’s police power. Characterizing the true content of the statute, he said, “The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions…. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld.”

Justice Stephen J. Field

He went on to say, “The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment, the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it.”

Justice Field pointed out that “The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.” He cogently argued that the amendment would have been meaningless if it protected only the purely national rights described by the majority, which under the Supremacy Clause of Article VI were beyond the power of the states to abridge anyway.

Conclusion

The precedential history of the Slaughterhouse Cases is replete with irony.

First, despite Justice Miller’s concern that a different interpretation would render the Court a “perpetual censor” of state legislation, the Court voluntarily took on such a role thirty-two years later through its “substantive due process” doctrine. (Cf. Lochner v. New York, 198 U.S. 45 (1905) and numerous other substantive due process cases.) That role was abandoned, but only as far as economic regulation in 1937 with West Coast Hotel v. Parrish, 300 U.S. 379. (See our analysis of Lochner and our analysis of West Coast Hotel.) The Court continued to apply substantive due process to the right to use contraceptives, but its rationales were often hard to justify. For example, in Griswold, the contraceptives case, it spoke of “emanations” and “penumbras” of the amendment rather than simple guaranteed “privileges and immunities.”

Second, by effectively nullifying the Privileges and Immunities Clause, federal power to protect civil liberties was limited. Liberals were forced to turn to other legal theories to protect civil rights. The Warren Court of the 1950 and 1960s turned to another 14th Amendment provision: the Due Process Clause. This allowed the Court to avoid the precedent of Slaughterhouse Cases.

I think Justice Miller’s court would have been appalled if it knew its rationale would become a shield for Jim Crow legislation. As to the very purpose of the 14th Amendment, the opinion states, “The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion … developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government were laws which imposed upon the colored race onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.”

A final irony of Slaughterhouse cases is that a movement appears to be under foot to reenergize the “privileges and immunities” clause. An unusual coalition of liberals and conservatives consider the clause to be a means of enhancing civil rights [liberals] and limiting gun control [conservatives].

Review of “A New Birth of Freedom” by Charles L. Black, Jr.

Professor Black, the former constitutional scholar, attempted, in this restatement of much of his life’s work, to put the jurisprudence of human rights on firm legal ground.

Black looked to three sources for human rights: the Declaration of Independence, the Ninth Amendment, and the “privileges and immunities” clause of the Fourteenth Amendment.

The Declaration declares “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Article 1 of the Fourteenth Amendment says “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

Black considers the Declaration of Independence to be not only a source of law, but “law” itself. Why not? After all, it is the founding document that “established” the United States.

But even if the Declaration is not considered “law,” the ninth and fourteenth amendments are most certainly law, national law, which Article VI of the Constitution, provides is the supreme law of the land, superior to anything enacted by any of the “several states.”

The ninth amendment, though rarely cited in Supreme Court opinions, as indicated above states that the failure of the constitution to enumerate certain “rights” shall “not be construed to deny or disparage others retained by the people.” But what are those unenumerated rights? Black proposes, how about those mentioned in the Declaration, which was passed only thirteen years before the Ninth Amendment?

And because the Ninth Amendment applies only to the Federal Government, the Fourteenth Amendment is needed to protect citizens from the actions of the states, which, Black points out, are the principal abridgers of human rights.

Although the 14th Amendment has acted as a check on actions by the states to limit human rights, the jurisprudence surrounding it has been faulty. The federal courts have relied on the “due process” clause of the amendment to find various state actions unconstitutional. This is all well and good where the state action was an unfair procedure (process), but that clause’s language simply does not seem to cover an unfair or otherwise constitutionally inappropriate substantive provision.

Professor Charles L. Black

Black contends that reliance on the due process clause to invalidate overreaching by state governments has resulted in some poor decisions and fuzzy analysis. Instead, he points to the privileges and immunities clause, augmented by the 9th Amendment and a reference to the Declaration of Independence, as a better guide to the human right jurisprudence.

Black further argues that those three sources of human rights not only protect against state infringement, but also impose on Congress an affirmative constitutional duty to see that all citizens have a decent chance to “pursue happiness.” He says, “There is then nothing exotic to the Constitution in the proposition that a constitutional justice of livelihood should be recognized….” He wants our national debate about the elimination of poverty to shift from a matter of compassion to one of a constitutional right. In his words, “The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness.”

Black believes that “the pursuit of happiness” should be adopted as a fundamental right, created by the Declaration of Independence, incorporated in the Constitution and imposed on the federal government through the Ninth Amendment, and imposed on the states through the privileges and immunities clause of the Fourteenth Amendment. The simple insight of the right to pursue happiness would reach out to every field of human rights. “It would make plain the wrong in every kind of discrimination hurtful to women. It goes to the essence of the wrongs done by the law and outside the law to those having homosexual preferences. It could clarify the ultimate grounds of the banning of racial discrimination against blacks and other racial minorities.” Moreover, we need not fear that such an extension of such rights would go “too far.” After all, the law effectively limits the right of free speech and religion. An analysis similar to that which prohibits yelling “fire” in a crowded theater (limiting speech) and prohibits ritual animal sacrifice (limiting religion) would keep pursuit of happiness jurisprudence within reasonable bounds.

Black dedicated the book to Abraham Lincoln, who also looked to the Declaration of Independence as a source of “law” when he referred to it in the Gettysburg Address. Black thinks perspicaciously and writes perspicuously, especially for a man in his 80’s. This exceptionally good book is highly recommended.

June 12, 1967 – The Supreme Court Decided Loving v. Virginia

Loving v. Virginia, 388 U.S. 1 (1967) was a landmark civil rights case in which the United States Supreme Court declared Virginia’s anti-miscegenation statutes unconstitutional, overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States. Chief Justice Earl Warren, writing for the Court, declared that statutes preventing marriage solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

At the time of this decision, Virginia was one of 16 states prohibiting and punishing marriages on the basis of racial classification. According to one Virginia statute, a “white person” was absolutely prohibited from marrying anyone other than another “white person.” The license-issuing official had to be satisfied that applicants’ statements as to their race were correct, and certificates of “racial composition” had to be kept by both state and local registrars.

In June, 1958, two Virginia residents, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. Shortly thereafter, they returned to Virginia and took up residence. In October 1958 a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. Apparently the irony of their married name did not occur to their accusers.

The Lovings were convicted and sentenced to one year in jail; however, the trial judge suspended the sentence for 25 years on the condition that the Lovings leave the State. Intuiting the mind of the Creator, the judge wrote: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”

After their convictions, the Lovings took up residence in the District of Columbia. In 1964, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote in protest to Attorney General Robert F. Kennedy. Kennedy referred the matter to the American Civil Liberties Union.

The ACLU filed a motion on the Lovings’ behalf to vacate the judgment and set aside the sentence on the ground that the statute, the “Racial Integrity Act of 1924,” violated the Fourteenth Amendment. Before the motion was decided, the Lovings also filed a class action in federal court to have the Virginia statutory scheme declared unconstitutional. This began a series of procedures and appeals that ultimately reached the Supreme Court.

In the Supreme Court, the State of Virginia argued that the Equal Protection Clause of the Fourteenth Amendment meant only that punishment must be applied equally to different racial classifications. It cited discussions in Congress at the time the Amendment was adopted to indicate that the framers would have condoned the statutes. The State said further that even if the Clause were applicable, the Court should defer to the wisdom of the state legislature.

The Court rejected the State’s argument about the inapplicability of the Equal Protection Clause. It reasoned that even though the amendment may not have been thought to proscribe a ban on miscegenation at the time it was passed, it had taken on a “broader, organic purpose.”

Justice Earl Warren

Justice Warren ruled, “The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.” He further held “There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ … At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny….”

In addition, and somewhat gratuitously, Justice Warren found that the Virginia statures also violated the Amendment’s Due Process Clause. He came to the uncontroversial conclusion that the freedom to marry was a “liberty” protected by the Due Process Clause, but he said nothing about how the “dueness” of the process by which it was denied. His ostensible due process argument was pure equal protection:

“To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” [Emphasis added.]

Warren’s equal protection argument was cogent, even inspiring. However, his due process argument was unnecessary, and opened the court to the charge of judicial legislating through the substantive due process doctrine that had fallen into disrepute.

Mildred and Richard Loving went on to have three children: Donald, Peggy and Sidney Loving. Richard Loving died at age 41 in 1975, when a drunken driver struck their car. Mildred Loving lost her right eye in the same accident.

Mildred Loving died of pneumonia on May 2, 2008, in Milford, Virginia, at age 68. Her daughter Peggy Fortune said “I want [people] to remember her as being strong and brave yet humble—and believ[ing] in love.”

June 7, 1965 – The U.S. Supreme Court Decides Griswold v. Connecticut

Griswold v. Connecticut (381 U.S. 479, 1965) is the landmark case in which the U.S. Supreme Court ruled that marital contraception was a private matter.

In Griswold v. Connecticut, Justice William O. Douglas, writing for the Court, famously (and somewhat opaquely) held that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. … Various guarantees create zones of privacy” [citations omitted].

The case invalidated a Connecticut statute that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” Although the law was passed in 1879, it was almost never enforced and had evaded judicial review until Griswold.

In Griswold, appellants filed suit after they were fined for giving “information, instruction, and medical advice to married persons as to the means of preventing conception” in violation of the Connecticut statute.

The Court seemed predisposed to find the statute unconstitutional, but struggled for a rationale. None of the rights specifically delineated in the Constitution had been infringed, and the Court had long ago vitiated the principle of “substantive due process” regarding economic regulation, where it had invalidated laws solely on their “wisdom, need, and propriety.” Nevertheless, Justice Douglas found that some rights not specifically listed in the Constitution and in the Bill of Rights were created by implication.

Justice William O. Douglas

The Court contended that the express guarantees of the Bill of Rights were not meaningful unless those rights had “penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” In other words, it can be rather difficult pursuing “life, liberty and property” without a little privacy, especially when it comes to regulating ones’ own sex life and family-planning strategy.

Justice Douglas wrote:

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Although in Griswold, Douglas recognized a “right of privacy,” his ruling was limited to finding the right to use contraceptives or advise on their use. [Court opinions must perforce apply only to the case on which they are ruling.] Furthermore, his language provided very little guidance on the boundaries or extent of the penumbras.

However, his rationale could be used to expand the right indefinitely, at least to the extent that any other statute “operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”

The vote was 7-2 in favor of penumbras.

Justice Arthur Goldberg wrote a concurring opinion in which he said that he did not accept the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight amendments; rather, he believed that the Ninth Amendment justified the Court’s ruling. (The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.)

Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment “because the enactment violates basic values ‘implicit in the concept of ordered liberty.’” That is, Justice Harlan does not believe the protections of the Fourteenth Amendment are necessarily restricted to the first eight amendments but may go beyond them (for example, to Common Law). Justice Byron White also wrote a concurrence based on the due process clause.

Two Justices, Potter Stewart, and Hugo Black, filed dissents.

Justice Stewart wrote:

In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law. We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the “guide” in this case. With that much, I agree. There is no claim that this law, duly enacted by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining “the wisdom, need, and propriety” of state laws. Compare Lochner v. New York, 198 U.S. 45, with Ferguson v. Skrupa, 372 U.S. 726. As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. The Court also quotes the Ninth Amendment, and my Brother GOLDBERG’s concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.”

“If,” Justice Stewart added, “the law before us does not reflect he standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”

Justice Black agreed with Justice Stewart.

Since Griswold, the Supreme Court has cited the right to privacy in other rulings, most notably in Roe v. Wade, 410 U.S. 113 (1973). For the most part, the Court made these later rulings on the basis of Justice Harlan’s substantive due process rationale. The Griswold line of cases remains controversial, and has drawn accusations of “judicial activism” by many conservatives. Although the Court explicitly declined to apply the rationale of Lochner v. New York (an economic substantive due process case), and claimed it did “not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions,” it did sit as a super-legislature to overturn a statute that prohibited the use of contraceptives. Griswold is considered the first modern Supreme Court substantive due process case.

Brown v. Board of Education: The Unwitting Contribution of Louis Armstrong

In 1954, a white professor of constitutional law, Charles L. Black, Jr. helped Thurgood Marshall of the NAACP Legal Defense and Educational Fund Inc. to write the legal brief for Linda Brown, a 10-year-old student in Topeka, Kansas, whose historic case, Brown v. Board of Education, decided May 17, 1954, became the Supreme Court’s definitive judgment on segregation in American education.

Charles Lund Black Jr. was born on Sept. 22, 1915, in racist Austin, Texas, one of three children of a prominent lawyer. In 1931, as a 16-year-old freshman studying Greek classics at the University of Texas at Austin, he happened to hear Louis Armstrong play. He later wrote in the Yale Law Journal, “He was the first genius I had ever seen. … It is impossible to overstate the significance of a sixteen-year-old southern boy’s seeing genius, for the first time, in a black. We literally never saw a black then in any but a servant’s capacity. It was just then that I started toward the Brown case where I belonged.” (Armstrong himself, according to jazz critic Nat Hentoff, wrote in a September, 1941 letter: “I’d like to recall one of my most inspiring moments. I was playing a concert date in a Miami auditorium. I walked on stage and there I saw something I’d never seen. I saw thousands of people, colored and white, on the main floor. Not segregated in one row of whites and another row of Negroes. Just all together – naturally. I thought I was in the wrong state. When you see things like that, you know you’re going forward.”)

Louis Armstrong in 1934

Professor Black taught generations of law students, first at Columbia from 1947 to 1956, then at Yale for 30 years, and then at Columbia from 1986 until his health began to fail prior to his death in 2001. Black was the first Henry R. Luce professor of jurisprudence at Yale, and in 1975 he became the Sterling professor of law, the highest academic rank at Yale. He also wrote more than 20 books and many articles on constitutional law, admiralty law, capital punishment, the role of the judiciary and other legal subjects, including Impeachment: A Handbook, that was widely praised in 1974, when President Richard M. Nixon resigned in the Watergate scandal, and also when reissued during the 1999 proceedings against President Bill Clinton. His last book, A New Birth of Freedom (1997), re-examined the Declaration of Independence and the Ninth and 14th Amendments to the Constitution as a basis for unwritten human rights.

Professor Charles Black

[Sources for this post came from Columbia University, The New York Times (5/08/01), and The Wall Street Journal (1/15/09).]