Charles L. Black: His Heart and Mind

Georgetown Law Journal, Apr 2004 by Greenberg, Jack

Charles Black was one of the most influential constitutional scholars of our time. Few who admired his scholarship, however, knew him also as author of three books of poetry,1 scores of other published poems,2 as painter, trumpet and harmonica player, and musicologist. He wrote poems for and about friends. He performed his music in formal and informal settings. Many friends own one or more of his paintings, which often consisted of multicolored painted squares à la Mondrian. He was a student of Icelandic culture: he visited the country, learned to speak its language, and made many friends there. Although Charles almost accidentally3 undertook the study and teaching of admiralty law,4 racial justice, his principal interest, arose at an early age as a result of his passion for the music of Louis Armstrong.5 When he was a college freshman, Black, who was born and raised in Texas, heard Armstrong perform in Austin, at a concert that sparked his admiration and fueled his outrage at southern society's odious treatment of African-Americans. Charles has written of the moment when he was struck by the immense injustice of the relationship between blacks and whites in the southern society in which he lived:

He was the first genius I had ever seen. That may be a structurable part of the process that led me to the Brown case.... 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. . .

That October night, I was standing in the crowd with a "good old boy" from Austin High .... [H]e turned to me, shook his head as if clearing it-as I'm sure he was-of an unacceptable though vague thought, and pronounced the judgment of the time and place: "After all, he's nothing but a God damn nigger!"

The good old boy did not await, perhaps fearing, reply. He walked one way and I the other. Through many years now, I have felt that it was just then that I started walking toward the Brown case, where I belonged.6

The encounter with Armstrong and his music, to adapt a phrase from Brown v. Board of Education, affected his heart and mind in a way never to be undone.7

His passion for racial justice rose from this adolescent epiphany. He transformed it into an influential body of constitutional scholarship of the Fourteenth Amendment in which he explicated equal protection, state action, citizenship and, particularly, the Amendment's overriding purpose-erasing the race line from American life. He wrote towering scholarly articles and books. But his was not an academic ivory tower. He rolled up his sleeves and worked on real cases as a practicing advocate for his beliefs. For over thirty years, first on the Columbia Law School faculty and then at Yale, he was a regular and, when on leave from Yale, sometimes full-time unpaid lawyer for the NAACP Legal Defense Fund (LDF). Now that Charles will not suffer the embarrassment that he felt at its repetition, I feel free to repeat his quip, which he came to hate because it was recounted so often that it displaced serious discussion of his work. (I made no mention of it in Crusaders in the Courts, which describes much of Charles's work for the LDF.)8 He was often asked why he, as a white southerner, did work for the NAACP. Although I am white, but not a southerner, I frequently get a similar question. My reply ponderously refers to my family and its values. He made up a story that went something like this: "I heard that NAACP had hanging on the walls of its offices the keys to every white woman's bedroom. I decided that I should join that organization." That became often the only thing said about him when the press or television media described his relationship with the Legal Defense Fund. One of the documentaries made about Brown v. Board of Education depicts him only as making the statement, without a word of his contributions to the argument of the case.

His relationship with LDF was one of mutual admiration and intellectual support. LDF was enriched by his brilliance, constitutional insights and eloquence. In 1989, it held a reception in his honor and bestowed upon him its award for contribution to the cause of equal justice. I heard him many times refer to the award as the recognition that he valued above all others. He was not merely unpaid; at the outset of his career, he imperiled his status in the law school world of that day because he openly championed racial justice. Today it is not widely understood that in the early 1950s advocates for racial equality might suffer for their concern.9

Charles wrote important articles, books, and briefs about the issues in which he and LDF were involved; his LDF legal practice and scholarly writing stimulated and nourished each other. He attended staff meetings and larger conferences and met with lawyers involved in cases on a day-to-day basis. The point of departure for most of his influential writing was experience with doctrines as they worked in the world: the implementation of school desegregation; the state's hand in enforcing segregation in public accommodations; and the administration of the death penalty. His scholarship was informed by having, as he put it in other contexts, "worked in the fine grain." He did not deal with mere abstractions. I am reminded of the advice Charles gave his student, Benno Schmidt, later to become Dean of Columbia Law School and President of Yale University, on selecting a law review note topic: "The liability clause in bills of lading, young man. Bills of lading."10 In other words, do not deal with theory, at least at first. Address the practical matters of how things work.