Lincoln, the Declaration, and the "Grisly, Undying Corpse of States' Rights": History, Memory, and Imagination in the Constitution of a Southern Liberal

Georgetown Law Journal, Apr 2004 by Forbath, William E

INTRODUCTION

"The foundations of American human-rights law," wrote Charles Black on the first page of his last book, A New Birth of Freedom, "are in bad shape. They creak, they groan for rebuilding."1 Rebuilding constitutional foundations was his project; that is what prompted the eighty-year-old Black "to sit down . . . and write yet another book."2 He lamented that our substantive constitutional rights rest on such tenuous doctrinal footing. He worried that our hopes of extending and expanding substantive constitutional rights in the future might be needlessly hobbled because of the ill-suited textual ground on which such rights, under current law, must rest. "A period of no power," Black observed in a lecture in 1986, "is a period for the reformation of thought."3 It is a good time, Black declared, to "think large" about the constitutional bases on which to build anew, when the opportunity comes.4

When Americans next set about expanding the nation's constitutional "human rights law," our new rights-the right to a livelihood is the primary example Black takes up-should not rest on the present foundations of substantive due process or equal protection.5 There are better texts, Black proclaimed: the Declaration of Independence, the Ninth Amendment, and the Citizenship and Privileges or Immunities Clauses of the Fourteenth Amendment.6 "[C]onsign[ed] to [legal] oblivion," these "basic commitments" are rich with constitutional meaning and possibility; they offer far better ground on which to rebuild an "open-ended series of open-textured human rights."7 Their language has the right pitch and contours for substantive rights protection; due process, by contrast, points away from substance toward procedure, and equal protection toward even-handedness.

But history seemed to weigh heavily against Black's undertaking. And history, and "questions of time" and "memory," haunt this book.8 The three best texts dwell in legal oblivion. "[H]as time made these unredeemed commitments stale? Are we merely stirring the dust of an irrelevant and perhaps not serviceably accessible antiquity? Is it too late, because of abundant and well-reasoned precedent, to effect the change I have advocated here . . . ?"9

As a constitutional theorist, Charles Black had no use for history. His important work lay in the interpretive modalities of text and structure. With regard to historical interpretation, Black complained that constitutional lawyers and scholars got "drunk" on historical "evidences of 'intent.'" They ought to leave "the stuff altogether alone"10 and find constitutional meaning in the "words chosen ... to be the words of authority,"11 in the structures in which constitutional provisions are found, and in the relations they bear to one another. To the originalist, Black said that we take the language of the Constitution "as it comes to us. We are its inheritors; it 'belongs in usufruct to the living' . . . ."12 No other proponent of the "living" Constitution, however, has felt so deeply and written so feelingly about historical commitments, conflicts, and betrayals in the constitutional past and their meaning in the present. This is no paradox because in Black's constitutional universe, as in William Faulkner's fictional one, "the past is never dead. It's not even past."13 The presence of the past confronts-"haunts," "troubles," "nourishes"-him and his forward-looking constitutional arguments.14 Its "ghosts" and its "grisly, undying corpses,"15 as well as its "sacred memories,"16 are active in them. Nor is this surprising. Few other notable constitutional theorists have been white liberals from the South who grew up in and then fought against the social order of Jim Crow; fewer still-to my knowledge, no others-have been poets as well as scholars.

Black's past is not the past of historical "evidences" but of personal and historical memory and imagination. The past played no theoretical role in his constitutional scholarship, but the great strength of his writings on Brown v. Board of Education flowed, in important measure, from the rich personal memory of one "raised in the South, in a Texas city where the pattern of segregation was firmly fixed."17 They were also informed by the historical memory of one who grew up in that place and time and, therefore, could assert-as a matter of common knowledge among southerners, "white or colored," of his generation-that

it never occurred to anyone . . . to question [segregation's] meaning . . . . Segregation in the South comes down in apostolic succession from slavery and the Dred Scott case . . . . The South fought to keep slavery, and lost. Then it tried the Black Codes, and lost. Then it looked around for something else and found segregation.18

Memory, imaginatively evoked in concrete particulars and confident generalities, is the ground on which Black's argument regarding the social meaning of segregation stood. And when he came to distill the goal of his great article The Lawfulness of the Segregation Decisions, it was "to refresh the reader's memory."19