Constitutional Absolutes in
a Holmesian World
JUSTICE BLACK FAILED. Despite the force of his repeated admonition that the First Amendment says “Congress shall make no law,” not that it shall refrain from making some laws; despite the verbal congruence between his absolutism and that of founding-era constitutionalists including James Madison; despite the fact that Black's colleagues increasingly came to adopt his speech-protective outcomes as their own and even, arguably, at times to go beyond the master himself; despite all of this, Hugo Black failed, both as a formal matter and in terms of the working presuppositions of First Amendment doctrine. Black pushed the Court toward an increasingly sensitive appreciation of the constitutional value of free expression; but that is, in a sense, precisely what he did not want to do—to encourage the justices to see the First Amendment as an invitation, or even a command, for the Court to assign an appropriate value to expression. For Black, the First Amendment was a denial of power to all parts of government, including the Court, to engage in any such evaluation. But the Court and the legal profession generally, wedded as they were and are to the assumptions Holmes built into free speech law at its modern inception, have been able to make sense of this only as a hyperbolic way of insisting that the value of expression generally ought to be assigned a high value in the constitutional calculus.
This has been true, for the most part, even of sympathetic readers of Justice Black's absolutism. In a 1961 article discussing Justice Black's contribution to First Amendment law, Professor Charles L. Black, Jr., a leading academic lawyer and a strong proponent of vigorous First Amendment protection for speech, wrote that
taken literally, Mr. Justice Black is wrong. No right, however defined, ever turns
out to be really “absolute,” if you think about it long enough. Take torture.