Comment: Charles Black and Human Rights

As a student in law school, I was vaguely both Charles Black's student and research assistant. Black, with Bruce Ackerman, took over Robert Cover's course on the Constitution and the Welfare State after Cover suffered a heart attack midway through the semester. And for part of a summer, I did some quantitative research off-site for Black at the request of his real research assistant, Philip Bobbitt.

But my strongest connection to Black has been through his written words. I am sure that I am not alone in putting The Lawfulness of the Segregation Cases1 on my top-ten list of best law review articles. And Black's down-to-earth, commonsensical defense of judicial review in The People and the Court2 remains-despite decades of fancy theory-to my mind the most persuasive justification ever offered. Charles Black, I believe, will be one of the very few scholars of the Twentieth Century whose work will continue to be read several generations into the twenty-first.

The works to which I have referred-and many others-are written in a Lincolnian style, and I am not surprised that Lincoln was a hero to Black. Black's writing sprang from deeply held values and idealism, but they are clearly situated in and speak to the real world. The words of Lincoln and Black share a powerful mix of pragmatism, commitment, and poetry.

Lincoln and Black are also linked in their recognition that slavery and the problem of race discrimination have been a-perhaps the-central feature in American history and constitutional law. Lincoln was born after the Declaration of Independence was written and the Constitution was adopted, and he died before the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted. But he was-as Black noted at length3-the bridge between these times, as marked forever in the Gettysburg Address. If Lincoln's project was to redeem the Declaration, then Black's project was to redeem Lincoln's: He was, we might say, "dedicated . . . to the unfinished work which [Lincoln had] . . . so nobly advanced."4

Black's books provide the architectural drawings for the bridge that Professor Forbath's paper begins to construct. Forbath helps us recover an almost forgotten period in American constitutional discourse-one that occurred primarily in the political arena, and not the courts, so it is frequently overlooked by constitutional law scholars. His account is rich and persuasive: The New Dealers and civil rights activists advocated for social rights not just as statutory rights but as the base of a just constitutional structure. This discourse fails, according to Forbath, largely due to entrenched Southern white power in Congress-the failure is, I am sure Black would have noted, the political equivalent of the Slaughter-Homes Cases5 decided about a century before.

Crucial to Forbath's and Black's accounts is the concept of citizenship. The Fourteenth Amendment begins with a definition of United States and state citizenship6-thereby removing the stain of Chief Justice Taney's opinion in Dred Scott7-and goes on to declare that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."8

There is much to this account. The Civil War Amendments are best understood as establishing a robust notion of U.S. citizenship. The Civil War and the legal revolution that followed it were not just about ending slavery; they were about establishing a citizenship regime-a charmed circle within which all persons were created equal and endowed with equal rights.9 Of course, this was more promise than performance: It took African-Americans, Indians, women, and others many decades to enjoy the full rights of citizenship.

Black argued across many of his writings that from the possession of citizenship alone, broad rights and guarantees followed. In Structure and Relationship-perhaps his most influential work-Black suggested that Congress has power directly under the Citizenship Clause of the Fourteenth Amendment to legislate against private race discrimination.10 He urged Congress to include reference to the Clause in its preambles to the civil rights statutes of the day, arguing that it provides at the least a better rhetorical justification for legislation than the Commerce Clause.11 More broadly, he suggested that the civil rights movement and the Second Reconstruction be conceptualized as the fulfillment of the ideals embedded in the Civil War Amendments. In the words of the day, the idea was to end the "second-class citizenship" of African-Americans and other traditionally oppressed minorities. At his boldest, Black sought to use the idea of citizenship to answer the challenge of Black Power advocates. Black understood their frustration and anger, but he parted company with activists who sought to mobilize people with the cry of "brotherhood." For Black, the idea of "citizenship" could do the work:

["Brotherhood"] suggested that the public demand was that some men have a duty to feel toward and to treat other men as brothers. This, I submit, is an over-reaching, a basic defect in theory, a radically wrong symbolism. . . . Brotherly love may stand somewhere in the shadow of time, waiting. There is not very much the law can do about that. But fellow-citizenship is for now, for the day before yesterday.12