The Supreme Court: The Limits That Create Liberty & The Liberty That Creates Limits

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oaths for union leaders under the Taft-Hartley Act, Black tartly informed his colleagues that "the First Amendment forbids compromise." When the Court upheld the 1951 conviction of Communist leaders for teaching and advocating violent overthrow of the Government—thereby upholding the Smith Act, heir to World War I's Sedition Act—Black protested that the decision "waters down the First Amendment so that it amounts to little more than an admonition to Congress." He was trying to save principles, not Communists.

In sharp reaction to "the present period of fear," Black built his theory of "absolutes"—a this-far, no farther attitude toward both Frankfurter's balancing test and what Black has called the Court's "accordion-like" view of the Constitution.

Black tirelessly translated 18th century admonitions into 20th century contexts. Faced with a law stripping an ex-Communist alien of social security benefits, Black called it a new version of the old bill of attainder, forbidden in Article 1. Black insisted that the framers did all necessary balancing when they wrote the Constitution. When the First Amendment says "Congress shall make no law," he argued, "no law means no law."

So fervent is Black's present belief in the "firstness" of the First Amendment, "the heart of our Government," that he says absolute freedom of speech even permits the publication of pornography, no matter how "hard-core." If obscenity is now considered a special kind of nonspeech for which people can be arrested, what is to prevent some demagogue from calling his critics "obscene" and arresting them? That, says Black, citing his well-thumbed Tacitus, is just what happened in Rome under Caesar Augustus. Moreover, the Supreme Court's current obscenity doctrine forces it to read every allegedly hard-core work to see how shocking it is, a task for which Black finds his brethren ill suited and unable to set "reasonably fixed and certain standards."

Politics & Principles. If a search for national standards is what basically haunts Black and his brethren, the frequently fiat-like results have obviously upset many Americans. Totally apart from the Birchers, with their campaign to "impeach Earl Warren," the critics of at least some decisions include such highly respectable friends of the Court as Harvard's famed Law Professor Paul Freund, who sees in its drumfire decisions "a tendency to make broad principles do service for specific problems that demand differentiation, a tendency toward overbroadness that is not an augury of enduring work."

It is equally obvious, though, that most Americans revere the Court, however little they understand it. Unlike 1937, the Court is now riding a national tide rather than trying to turn it. A recent Gallup poll shows a 3-to-2 national majority supporting reapportionment. Once again Dissenter Black has triumphed, for it was he who argued against Frankfurter back in 1946, when the Court rejected a reapportionment case as too "political."

Responsive & Responsible. Though he disagrees with the Court's formula, Professor Freund, too, sees reapportionment as one of the great steps toward "responsive Government" that the Court is obliged to take when