CHARLES BLACK: Elegy For A Heroic Lawyer

By EDWARD LAZARUS

Tuesday, May. 15, 2001

In a world where feet of clay are the norm, a genuine hero died last week. Charles Black was perhaps the most elegant legal mind of the modern era, and a man whose life affirmed the possibility of social progress.

[charles black]

Why Black Battled for Brown

Born in Austin, Texas in 1916, Black was schooled from an early age in the Jim Crow cosmology of "Negro" inferiority. It was Louis Armstrong who shattered that myth for him.

Black mused that his love of jazz somehow triggered his later devotion to the cause of racial equality. In any event, Black emerged as a leading member of the NAACP legal team for Brown v. Board of Education, and then became the most eloquent and effective defender of Earl Warren's nation-changing opinion.

Black was a master of dealing with Brown's critiques. Legal scholars suggested, for example, that the decision could not be justified by reference to any "neutral principle," even the principle of equality. Black responded with characteristic wit and irrefutable logic: "If a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated 'equally,' I think we ought to exercise one of the sovereign prerogatives of philosophers — that of laughter."

Much the same response is due the current generation of Brown minimizers — the political scientists who claim the decision accomplished nothing, and the legal critics who assail its reliance on dubious social science studies of segregation's psychological effects.

As Black well knew, you didn't need a study of children choosing between black and white dolls to recognize the claim of Brown's child plaintiffs "to their full measure of the chance to learn and grow . . . and be treated as entire citizens of the society into which they had been born."

And you didn't need a statistician (but only an observer of history) to realize that, even if the Brown Court never succeeded in effectively desegregating America's classrooms, it changed the moral compass of a nation and paved the way for the civil rights revolution that followed.

Black's contributions to law began with Brown, but did not end there. In the 1970s, he wrote what remains today the most salient and compelling attack on the death penalty, Capital Punishment: The Inevitability of Caprice and Mistake.

Long before DNA evidence confirmed his arguments, Black understood and articulated the insoluble practical obstacles that human nature and fallibility posed to any attempt at a fair and accurate administration of the death penalty.

Would that this generation of lawmakers had heeded Black's advice, and avoided the embarrassment, waste of time, and Constitutional travesty of trying a sexual scandal in the Senate.

Black and the Structural Constitution

Black also pioneered using a structural analysis of the Constitution — that is, an analysis focussing on the roles of the three branches of government as set out in the original Constitution, not just focussing on the Bill of Rights — as a valuable tool for defining the rights of individuals.

Wisely, Black was deeply skeptical of the enterprise of reading unenumerated substantive rights (such as the right to abortion) into the meaning of the due process clause. As a poet and English language wordsmith, Black realized such interpretations stretched both logic and the language of the Constitution beyond their natural bounds.

But using the fine art of logical reasoning, Black provided a devastating rejoinder to scholars and judges who would limit constitutional rights to those explicitly mentioned in the Constitution alone. As he showed beyond serious contradiction, the very nature and structure of our democracy promises, for instance, both a right to vote and a right to travel — despite the fact that there is no explicit textual mandate for either in the Constitution.

Remembering Black

In the politics of modern legal scholarship, Black occupied a fairly lonely no man's land. Though progressive to the bone, he had no truck with the boundless interpretive doctrines which most liberals, in the wake of Roe v. Wade, had begun to champion as gospel.

At the same time, his life's work, in every line of every page, refutes the sterile and ideologically-driven notion that the Constitution should somehow be interpreted solely by reference to the original intent of the Founding Fathers. Black did not shy from the teachings of history, morality, and experience — and many of us are still borrowing his courage.

Charlie Black was a man of outsized talent and personality. As one of the last of the generation with a direct connection to the Civil War, he learned the harmonica from an ex-slave — and became a world-class player. He painted stunning canvasses. Indeed, so far as I know, nothing Black did was ordinary. He was even known, on occasion, to eat breakfast cereal out of his son's football helmet.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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