The topic of the moment in American politics is “originalism,” on public display at the Amy Coney Barrett hearings. For those of us who grew up in the “Christ-haunted” South, the arguments for originalism sound extremely familiar. And I think there’s a reason why.
The Complicated Hugo Black
Many years ago, when originalism was first gaining traction in conservative circles, I happened to be reading Roger Newman’s excellent biography of famed New Deal Senator and then Supreme Court Justice Hugo Black. I wanted to know more about Black, who came from my home state of Alabama and for whom the federal courthouse in my hometown of Birmingham is named.
Black is correctly lauded by liberals for his extraordinary record in defense of civil liberties, especially First Amendment rights. His best opinion might have been his very last, in the 1971 New York Times Co. v. United States case, which in plain, forceful language denied the Nixon administration from preventing the publication of the Pentagon Papers.
But, like most people, Hugo Black was complicated, and his record was not without serious blemish. His Korematsu v. United States majority opinion in 1944, which upheld the internment of Japanese-Americans, is appalling and indefensible today (and should have been in 1944).
Before that, Black had become a member of the Ku Klux Klan in Birmingham in the 1920s, after successfully defending a Methodist minister who gunned down a Catholic priest at the priest’s home for marrying the minister’s daughter to a Puerto Rican Catholic. The funds for Black’s hiring came from a Klan fundraising campaign. Black’s Klan affiliation nearly derailed his nomination to the Court in 1937; he used a national radio address to allay fears (and skirt the truth). The vote was close, but Black squeaked through; and the opposition was incensed.
The Original Originalist
So, who was Hugo Black? Was he a legendary champion of individual rights, or a political opportunist and racist? The answer is, yes to both. And he was also the Original Originalist.
In his last decade on the Court, I learned with surprise from Newman’s book, Black was increasingly out-of-step with some of his other liberal colleagues. He did not believe in a “living Constitution.” Instead, as he stated in his dissent in the famous “penumbras” right-to-privacy Griswold case in 1965,
The Constitution makers knew the need for change, and provided for it [with amendments]… That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.
Paradoxically, liberal Justice Hugo Black, in the 1960s, pioneered at the Supreme Court level the concept of discerning the original intent of the Founding Fathers and adhering to that intent.
Original Recipe: The Good Book
But where did this concept originate? Reading Newman’s biography of Black years ago, it hit me.
Black gravitated away from the Protestant church in his later years, after growing up Baptist under the influence of a deeply devout mother. Perhaps he distanced himself from the church because Southern white Protestants moved in a completely different political direction on race from Black. In any event, the inerrantist Biblical philosophy of fundamentalism held no direct sway over his later life.
But Black had another text that became sacred to him: the U.S. Constitution. Instead of carrying, say, a pocket Gideon’s Bible with him, Black was famed for always having a pocket copy of the Constitution with him, at the ready. In fact, that’s how he was buried, in 1971. You can even buy a pocket U.S. Constitution with Black’s name on it, online!
I don’t think it’s much of a stretch to contend that Hugo Black exchanged the Holy Bible for the U.S. Constitution, retaining the inerrantist interpretation style from his Southern religious roots. Divine inspiration, secularized, becomes the wisdom of the Founding Fathers. The canon, secularized, becomes the Constitution and (for Black, at least) the amendments.
And what about where the two, divine law and human law, intersect in American life? Black, intriguingly, was a key popularizer of Thomas Jefferson’s “wall of separation” with regard to church and state. Instead of straddling that wall, Black essentially hopped from one side to the other over the course of his life. The one-time Baptist boy became reviled in his native state for being the judge who “took prayer out of our schools.”
Reports of Irony’s Death are Greatly Exaggerated
These are some of the key roots of originalism in American jurisprudence, and at the highest level of our judiciary. There is deep irony that at the moment we have a devout Catholic originalist tapping into ideas pioneered by an anti-Catholic defender of a priest’s horrible murder. And that the thoughts of an aging liberal on the Court would eventually inspire a conservative takeover of that same court.
But the irony is never deeper than when you realize that Amy Coney Barrett, who cannot remember all five freedoms in the First Amendment, owes her constitutional law philosophy to perhaps the greatest champion of the First Amendment in U.S. legal history.