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Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law with Some Notes on Teaching of Thayer's Subject

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Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law with Some Notes on Teaching of Thayer's Subject Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 1982 Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject O. W. Wollensak Paul R. Baier Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the Law Commons Repository Citation Wollensak, O. W. and Baier, Paul R., "Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject" (1982). Journal Articles. 372. https://digitalcommons.law.lsu.edu/faculty_scholarship/372 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. HUGO LAFAYETTE BLACK AND JOHN MARSHALL HARLAN: TWO FACES OF CONSTITUTIONAL LAW-WITH SOME NOTES ON THE TEACHING OF THAYER'S SUBJECT Bv 0. W. WoLLENSAK* I. It was a great surprise last semester when Supreme Court Justices Hugo Black and John Marshall Harlan visited the LSU Law Center for what turned out to be a heated dialogue on color video tape. The program was hosted by LSU's media mastermind, Professor Paul Baier,** who apparently has given up suing hospitals, see Baier v. Woman's Hospital, 1 and turned to producing television shows, his latest entitled "Hugo Lafayette Black and John Marshall Harlan: Two Faces of Constitutional Law."2 Professor Baier believes that constitutional law includes • Editor's note: Professor Baier is following Karl Llewellyn in using a pseudo­ nym. Llewellyn's was "Teufelsdrockh," which means "devil's print" in German. See THE KARL LLE WELLYN PAPERS: A GumE TO THE COLLECTION 93 (R. M. Ellinwood & W. L. Twining eds. 1970). Llewellyn wrote as Teufelsdr0ckh whenever he wanted to toss out a quasi-heretical piece. Professor Baier's nom de plume derives from 0. W. Holmes, Jr., one of Baier's intellectual heroes, and from "Wollensak," the machine on which he plays the recordings of the oral argument in Supreme Court cases in his constitutional law classes. At the 1980 meeting of the Association of American Law Schools in Phoenix, Professor Baier presented a demonstration of the use of these recordings in teaching, and in speaking of the equipment necessary to play the tapes in class, Mr. Baier picked up his trusty Wollensak 2520 and introduced it to the crowd, saying: "This is my associate, Professor W ollensak, whose circle of constitu­ tional acquaintances is wide indeed." **Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State Uni­ versity. A.B., University of Cincinnati; J.D., Harvard. Member of the Louisiana Bar and the Bar of the Supreme Court of the United States. Judicial Fellow, United States Supreme Court, 1975-1976. Producer of Court Reports, a National Archives film history of the Supreme Court of the United States. 1. A case that, unfortunately for Mrs. Baier, neatly coupled the miracle of childbirth with the knotty medico-legal question of husband access to the delivery room. For further details, see Appendix A, infra, note 1. Because the annotations to this article constitute an extensive commentary on the materials and methods of teaching constitutional Jaw, they are set forth sepa­ rately as Appendix A, infra. 1 2 SOUTHERN UNIVERSITY LAW REVIEW [Vol. 9 men: I suppose this is obvious, but our methods have not recognized the fact. Ours is a government of laws, we say proudly, not of men. And so our students study hundreds of cases, case a�ter case, the very embodiment of constitutional law. Never mmd . the men who make it. I believe our ideals have gotten m the way of teaching truth: Ours is a government of laws and of men.8 The Black-Harlan dialogue was Professor Baier's way of fo­ cusing student attention on the persons who make the law. "I have always believed that if you can get a judge's philosophy out in the open, you can better understand his cases," he says. II. Baier got the idea for his Black-Harlan dialogue while watching Steve Allen's "Meeting of Minds," A PBS television program that allows the viewer to see and hear noted histori­ cal figures talking about their lives and sharing ideas. Anyone who has seen this program knows it teaches history in a very lively fashion; it also tends to improve the minds of the listen­ ers-in. Doubtless, Henry Adams, whose job it was to teach his­ tory at Harvard College back in 1870, would have welcomed these illuminating conversations to his classroom.• But TV was a technology unknown to man, and Steve Allen was not yet sucking his thumb. A few years ago Norman Redlich's ingenious "Black­ Harlan Dialogue" appeared in print.5 The article, which Pro­ fessor Redlich openly acknowledged as an unconventional form of legal scholarship,8 is really the script for a short play featuring Justices Black and Harlan, who are engrossed in a meeting of minds of their own. Scene I depicts a country lane in Heaven in late Spring 1975. The Justices are out for their daily "constitutional," as it were. Each has a marked-up copy of the Constitution which he managed to take with him on the long journey in 1971. As they stroll along, Black and Harlan talk about life and law-argue would be a better word-through three engaging scenes, with Professor Redlich adding a few citations in the notes for the reader's guidance. One excerpt fromProfessor Redlich's article7 is enough to demonstrate �ot only is it refreshing reading, but, more im­ . portant here, it is also powerful teaching. 1982] BLACK AND HARLAN 3 BLACK: You may think I twisted history to try to get the Bill of Rights into the fourteenth amendment, but at least my view roots the Court's authority over the states in specific con­ stitutional provisions. Under your theory each case would be decided according to the concept of fundamental fairness shared by a majority of Justices. It would all depend on what would shock a particular judge's conscience. HARLAN: I don't think that's fair, Hugo. Ever since Adam­ son, you have constantly poked fun at those of us who believed that due process involves a careful process of inclusion and ex­ clusion. We were no less dedicated to basic human rights than you were. We simply did not believe that the Bill of Rights, word for word, is what the due process clause is all about. Where the Constitution says that life, liberty and property cannot be taken without due process of law, it calls upon us to interpret that language in terms of evolving principles of American justice. BLACK: I never doubted your sincerity, John. It's just that those words don't mean anything to me-even when I hear them up here. And that's why your system, which I'm afraid is prevailing, gives so much power to the courts. Depending on their own whims or shifting political pressures, judges will now be able to expand or contract individual rights. HARLAN: Hugo, I rather doubt that my views have pre­ vailed. However, even under your approach, judges have to make the individual value judgments you attribute to my sys­ tem. I'm sure you thought that if the first section of the four­ teenth amendment could be read as incorporating the entire Bill of Rights, judges would have to decide cases involving in­ dividual rights and liberties within the context of specific con­ stitutional provisions and not on the basis of personal judg­ ments. However, as I said in Griswold, personal judgments are involved in all important constitutional questions, whether they concern a specific provision of the Bill of Rights or the due process clause of the fourteenth amendment. As long as America is a changing society, there is simply no way our con­ stitutional system can be frozen into the kind of rigid pattern you were trying to develop in the '50's and '60's. Consequently, your system wouldn't protect individual liberty any more than mine. BLACK: I can't guarantee that it would. But my system gives to the American people the rights that are set forth in the Con­ stitution rather than the rights that a majority of judges think they should have at any particular moment of history. And I 9 4 SOUTHERN UNIVERSITY LAW REVIEW [Vol. have more faith in the text of the Constitution than in the changing values of a majority of judges. III. Reading Norman Redlich's Black-Harlan Dialogue co�­ vinced Mr. Baier to make a production of his own, only this time he proposed lifting the Justices off the printed page and having them come to class "live and in person," so to spe�k, for his students to see and hear. "A casebook," says Baier, "can be a dull thing and the case method of instruction lifeless. "8 Only the other day law teachers were challenged anew to do something, and not just to complain, about student bore­ dom in the second and third years of law school.8 The words are those of Derek Bok, seventh Dean of the Harvard Law School, now President of Harvard University: The great weakness of legal education is that Langdell's vision is the only substantial insight we have ever had. As a result, the law school experience tends to grow repetitive, and interest declines steadily throughout the last two years .
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