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Hugo Black and Thomas Jefferson

ISSUE:  Summer 2003

Among high-ranking public officials in the United States during the 20th century, none was a more ardent admirer of Thomas Jefferson than Supreme Court Justice Hugo L. Black. Few, if any, looked to Jefferson for inspiration and guidance on important public issues to the extent that Black did, both as Senator and Justice. This Jeffersonian influence had two sources. One was Black’s origin and early life experiences; the other was his intense interest in reading and learning from history.

His origin was simple. He was born in Clay County, Alabama, in 1886. This was a land of yeoman farmers, the sort idealized by Jefferson. Situated in the east central part of the state, the county had not been part of the antebellum cotton plantation society that flourished in the Tennessee Valley to the north and the Black Belt to the south. Populist sentiment was strong in that region during his boyhood, challenging the dominance of the Democratic Party by Black Belt planters and Birmingham industrialists. Although not affluent, his father was a county-seat merchant, above average in economic status in that time and place. But Black knew what hardship was, saw it all around him, understood the struggles of many to survive and make ends meet. He grew up imbued with the democratic ideal and belief in the ability and right of the common people to control their own destiny. In short, the circumstances in which he was reared developed a mind receptive to the views of Thomas Jefferson.

That frame of mind was reinforced by his experiences thereafter. After a year in medical school, seeking to follow in the footsteps of his older brother who was a physician, Black decided that he preferred law. He enrolled in the University of Alabama Law School and graduated in 1906. He entered law practice in Birmingham and soon was appointed judge of the police court. There he was exposed to the full range of human travail, misconduct, and degradation. Then he became prosecuting attorney for that burgeoning industrial and metropolitan area. At the conclusion of service in the army during the World War, he returned to law practice in Birmingham. Over the next half dozen years he achieved distinction as one of the most effective courtroom attorneys in Alabama. His clients were mainly individuals suing large corporations—the power company, the railroads, and the steel, iron, and coal companies—for personal injuries or job-related grievances.

In 1926, having never run for statewide office, he launched a campaign for the United States Senate. His opponents included some of the state’s best-known and most influential political figures. But he won, after an effective hand-shaking campaign in every county. He took his seat in the Senate in January 1927, at the age of 40. He brought to Washington a keen awareness, stemming from his experiences with the criminal law and the representation of workers, of the power of government and big business over “plain people,” as he called them, and the need for safeguards against potential abuses of such power.

In Washington, Black was often misunderstood and underestimated. In some quarters he was viewed as nothing more than a political opportunist and unlettered countryman. What was not appreciated, then and for many years afterward, was that Black was an avid and profound reader of history.

That interest seems to have been initially inspired by a course in Greek history he took while in law school, setting in motion a lifetime of reading on Ancient Greece and Rome. Among his favorite authors were Thucydides, Tacitus, and Livy. Among his favorite works was The Greek Way by Edith Hamilton. He made it required reading for his law clerks. He believed that such books would be more helpful to his clerks than, for example, books on federal jurisdiction. Ranking along with Greece and Rome among Black’s reading interests were the English constitutional struggles of the 17th century and the formative period of the American Constitution. At the top of the list in the latter were writings by and about Thomas Jefferson. He had been introduced to them by his law professor at the University of Alabama. (As at many law schools in that time, there was only one professor.)

Black continued reading historical works in all those fields while a lawyer in Birmingham, but he intensified his reading after coming to the Senate. It was then that he began assembling his unique personal library. It ultimately consisted of several hundred volumes housed in the upstairs study of his 18th-century Alexandria home. He found the books he wanted to own mainly in used bookstores and by perusing catalogs from used book dealers. He could become enthusiastic over an obscure volume that few others had ever read or heard of, especially if it dealt with some long-ago struggle for human freedom. There is an easy parallel between Jefferson and Black in their intellectual interest in developing a sizeable and distinctive personal library.

Black was not a casual reader. He read and reread his books, assimilating them and making them part of himself. He always read with pencil in hand, underlining what he considered key passages and making occasional marginal notations. In those notations, one can see him sometimes arguing with and sometimes agreeing with the author. In the books he valued most, he constructed a handwritten index inside the back and front covers—a list of key words and page numbers—to enable him to get back quickly to important points in the book. The extent to which he marked, annotated, and indexed a book usually indicated the degree of significance he attached to it, but not necessarily that he agreed with what it said. Over the years he read and marked in that way dozens of books in the areas mentioned above, as well as in others.

Out of all this reading Black was deeply imbued with a sense that human nature had not basically changed in more than 2000 years. While circumstances and conditions were, of course, not the same through the centuries, he saw the problems of relationships between men and women, their relationship to governmental authority, and human reactions to the challenges and travails of life as fundamentally unchanging. Thus to him, reading history was instructive in understanding how people in his own day would react to and deal with their problems. He frequently noted in the margin parallels between what was happening then and what was happening around him now. He had an unusual knack for identifying similarities between the past and the present. In particular, he saw as a constant theme the struggle to maintain human liberty in the face of authoritative power, one that was never ending and about which we could learn much from hundreds of years of human experience. And for him, there was no better teacher about the relationship of government and the people than Thomas Jefferson.

It is probably accurate to say that Black read everything written by Jefferson himself, in addition to numerous books about the man and his views. Of Jefferson’s own writings in Black’s library, the one he had most heavily marked throughout—and personally indexed inside the covers, in his usual penciled style—was the four-volume set entitled Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson, edited by Thomas Jefferson Randolph and published in 1829. He once said, “None of my books do I prize more highly, and none have been read by me with more interest and sympathy, than those which contain every word that was ever uttered by that great American.” Other writings of Jefferson in his collection included the first three volumes of The Papers of Thomas Jefferson, edited by Julian Boyd, and The Life and Morals of Jesus of Nazareth.

Among his books about Jefferson that he had extensively marked and indexed were two by Claude Bowers—one of his favorite authors—Hamilton and Jefferson: The Struggle for Democracy in America and Jefferson in Power: The Death Struggle of the Federalists. He thought that they presented the conflicting views about American government—aristocracy against democracy—that were still very much alive in the 20th century, and they reinforced his view that on those matters Jefferson was right. Also marked and indexed by Black were the first two volumes of Dumas Malone’s comprehensive biography: Jefferson the Virginian and Jefferson and the Rights of Man.

The dozen books about Jefferson that Black owned also included James Truslow Adams, The Living Jefferson; Daniel Boorstin, The Lost World of Thomas Jefferson; John P. Foley, The Jeffersonian Cyclopedia; and Adrienne Koch, Jefferson and Madison: The Great Collaboration.

His favorite one-volume biography of Jefferson was probably Thomas E. Watson’s Life and Times of Thomas Jefferson, published in 1903. Watson, a Populist and congressman and United States senator from Georgia, was the author of several other historical works, and he had a style and point of view that strongly appealed to Black. His portrayal of the relationship between Jefferson and his boyhood friend, Dabney Carr, struck a chord with Black’s sentimental streak, an aspect of his personality that was more pronounced than generally recognized. He would sometimes read it aloud to his law clerks—he liked to read favorite passages orally with feeling and emphasis—and said that he never read this one without getting tears in his eyes. After Watson’s description of the similarity of those two friends, Black would read on:

Very beautiful was the love and trust which bound these two ambitious young men together. In their walks and exercises, their talks and their meditations, they went in company, the one with the other.

On the wooded mountainside they had made a rough seat under a noble tree; and to this retired spot they would bring their books for study and for thought. Here they would give loose rein to imagination as they discussed their plans for the present and their hopes for the future; and here they promised each other that when life’s hurly-burly was done, and there was no longer daylight in which any man could hope and plan and work, they should sleep the long sleep under the shadow of the great tree.

Reading through lines describing the mountaintop scene at Monticello and Jefferson’s dream of building a house there, Black continued in an emotion-filled voice, which I can still hear:

Some day he would build it; some day he would lead to its portals the fairest of brides; some day he would stand upon its classic portico, surrounded by those who loved him best, and look forth tranquilly upon the beauties of the world—a world in which he should have done his own part before he came back here for rest in the evening of life.

And when all was done, he would sleep beneath the giant oak, he and Dabney Carr, where they had communed together in the cloudless days when they were boys.

Like Jefferson at Monticello, Black created for himself and his family a little world of his own in his classical 18th-century townhouse and unusually large walled garden at 619 South Lee Street in Alexandria. There he spent the last 30 years of his life with his rose garden, clay-surfaced tennis court (the only acceptable style of court, in his view), and commodious upstairs book-lined study. Just as Monticello was a haven for Jefferson, this was a haven for Black. There, when not at the Supreme Court, he would be, reading and thinking in his study between sets of tennis, work with his roses, and sessions with family and friends.

Probably no public figure in his time was as familiar with the words and thoughts of Thomas Jefferson as was Hugo Black. Certainly none was better read in Jeffersoniana. Anyone around him for a time was likely to hear one or more references to Jefferson. They popped up frequently in conversation. Black’s sister-in-law, Virginia Durr, said that when she first came to know him in the 1920’s he often quoted Jefferson to her. Such references were common in his political stump speeches in Alabama and in floor debates throughout his ten years in the Senate. He was so familiar with Jefferson and Madison that in his mind it was as though he had actually been there with them in the nation’s formative years. “I know what they were thinking,” he would say. Hugo Jr. said that Jefferson was his father’s “Number 1, number 2, and number 3 hero.”

As a senator, Black invoked Jefferson in support of a variety of causes. Indeed, he seemed to be able to summon Jefferson on behalf of whatever cause he was pursuing, however unlikely the connection might seem to others. For example, in a 1934 speech in New York, advocating a national social security program—not a subject on which Jefferson’s views would be obvious—he concluded: “At last we are returning to the words written by Thomas Jefferson and adopted in the Declaration of Independence that It is the right of the people . . . to institute . . . government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness”.”

On other subjects the link to Jefferson was clearer. An example was in a 1937 major address over the Mutual Broadcasting System in support of President Franklin D. Roosevelt’s controversial “court packing” plan. If it had been enacted it would have enabled the president to appoint six additional justices to the Supreme Court, thereby hoping to create a court that would uphold the constitutionality of New Deal legislation. Jefferson, no friend of the federal judiciary, was an obvious ally in attacking the Court’s recent decisions. Black cited him twice for the proposition that, contrary to republican principles, five judges of the Supreme Court were absorbing to the judiciary, the only governmental authority not accountable to the people, all the legislative rights of the states and the federal government. He said, “Most of the framers believed in popular government by the people themselves. Like Jefferson they were not willing to trust lifetime judges with omnipotent powers over governmental policies.”

Early in his first term, in a floor discussion of an agricultural bill, Black said, ” . . . while I cannot quote the exact language, Mr. Jefferson in one of his letters stated that when the time came that he could be directed from Washington when to sow and when to reap and how much to plant and how much to reap, the days of the independence of the farmer would be at an end.”

Black often referred to Jefferson concerning freedom of speech and press. In a 1930 debate over measures to control obscene books, he said, “. . .I have an inherent opposition, I presume it comes perhaps from reading a great deal of Thomas Jefferson’s philosophy . . .against vesting in the hands of an individual judicial power on matters of supreme importance with reference to the dissemination of human knowledge.” In a 1936 exchange on the Senate floor, he said, “This country believes in the principle of a free press. Most of its people probably agree with Thomas Jefferson in the statement he made that if he had to choose between a free press and a free government he would choose a free press because a free press would bring about a free government.”

The extensive New Deal legislative program rested on the power given by the Constitution to Congress to regulate interstate commerce. Black, one of its most fervent supporters, cited Jefferson as believing that this congressional power over commerce was supreme, a plenary authority to govern in that field. Whereas observers and critics could raise questions over whether Jefferson would have favored many of the far-reaching federal regulatory measures being proposed in the New Deal program, given his views about state authority vis-à-vis the federal government, Black was apparently untroubled by such alleged inconsistencies. Neither were others in the administration and the Congress, then firmly in control of Democrats. Indeed, the Democratic Party claimed to be Jefferson’s heir, and it was at the height of the New Deal era that the great marble memorial to Thomas Jefferson on the Tidal Basin was constructed and dedicated.

At long last, in the summer of 1937, after more than four years in office, President Roosevelt had an opportunity to fill a vacancy on the Supreme Court. The choice of a new justice was uncommonly important, because the Court had been dividing 5—4 against the constitutionality of significant New Deal enactments, and retiring Justice Vandevanter was among the five. There were no leaks as to potential nominees, and the president moved quickly. Out of the blue, to the surprise of many and horror of others, he sent to the Senate the nomination of Hugo L. Black of Alabama. For most of the nation, all that was known of him was that he had been a decade in the Senate, one of the strongest and most partisan supporters of the Roosevelt administration. Although he was recognized in Alabama as an able lawyer, New Deal opponents viewed him as merely a politician with little to recommend him for a place on the highest court in the land. Their outcry was vociferous. He was despairingly referred to as a “former police court judge.” Few knew of his extensive reading and deep intellectual interest in history. But senatorial courtesy was a powerful factor, and he was promptly confirmed. He took his seat at the opening of the October Term 1937. It was the beginning of a judicial career that was to last for over 34 years and, contrary to the expectations of his critics and detractors, establish him as one of the leading 20th-century justices.

He took Jefferson with him to the Supreme Court. No other justice in his time was so imbued with the Sage of Monticello’s philosophy. Indeed, he can be viewed in effect as the third president’s 20th-century appointee on the Court. It was as though from beyond the grave that Founding Father had appointed him to that body to ensure the preservation of the separation of church and state and the freedom of speech and press, constitutional doctrines to which Black attached supreme importance. His colleagues were aware of this strong attachment to Jefferson. When an edition of Jefferson’s Democracy, edited by Saul Padover, was published in 1939, Justice Felix Frankfurter sent him a copy, which he inscribed: “For Hugo L. Black, a true apostle of Jefferson. . . .”

In 1947 in one of the leading First Amendment religion cases of his time, Everson v. Board of Education, Black wrote the Court’s majority opinion upholding the constitutionality of the use of public funds to transport students to parochial schools. He cited Jefferson four times, including his famous metaphor: “In the words of Jefferson the clause against the establishment of religion by law was intended to erect “a wall of separation between church and state”.”

It was in cases involving speech under the First Amendment that Black most often invoked Jefferson. His favorite and most often quoted passage was that famous statement in the First Inaugural Address in 1801: “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

He quoted those lines in at least three dissenting opinions in the 1950’s and 1960’s in cases where the Court upheld governmental action aimed at controlling communists. He quoted the passage in his Albert Einstein Memorial Address in New York in 1955, in the James Madison Lecture he gave at the N.Y.U. Law School in 1960, and in the Carpentier Lectures at Columbia University in 1968, entitled “A Constitutional Faith.” In the latter he cited Jefferson no less than five times. He asserted that Jefferson agreed with him that libel laws are unconstitutional. At another point he said, “I believe with Jefferson that it is time enough for government to step in to regulate people when they do something, not when they say something.”

In June 1971, the so-called Pentagon Papers case came before the Court. The government was seeking an injunction to prevent The New York Times and Washington Post from publishing a collection of official, classified documents relating to the Vietnam War. By per curiam opinion the Court held that publication could not be enjoined. Black wrote a concurring opinion which is perhaps his strongest expression of his view that freedom of the press under the First Amendment is absolute, placing heavy reliance on the understanding of the Founding Fathers. While he did not cite Jefferson by name—he cited very little—the opinion exudes the Jeffersonian spirit concerning press freedom, as Black saw it. Although not known at the time, this turned out to be his last utterance from the bench, and there could hardly have been a more fitting subject with which to wind up his long career on the Court.

Less than three months after delivering this ringing declaration, Justice Black died at the age of 83. He was buried in Arlington National Cemetery, alongside his first wife, Josephine. The site had been selected years earlier by Hugo Jr. who had found it especially suitable, as he said, because from that hillside position there was a clear view across the Potomac of the memorial to his father’s great hero, Thomas Jefferson. In the end, Anthony Lewis put it best when he wrote in The New York Times that Hugo Black was “an unreconstructed Jeffersonian.” That cannot be said of any other 20th-century justice of the United States Supreme Court.


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