65 Pages Posted: 10 May 2004
As a constitutional theorist, Charles Black had no use for history. To the originalist, Black said, the language of the Constitution "belongs in usufruct to the living." No other proponent of the "living" Constitution, however, has felt so deeply and written so feelingly about historical commitments, conflicts, and betrayals in the constitutional past and their consequences in the present. The presence of the past confronts - "haunts," "threatens," "nourishes," "compels" - Black and his forward-looking constitutional arguments. Its "ghosts" and its "grisly, undying corpses," as well as its "sacred memories," are active in them. This is no surprise: few other notable constitutional theorists have been white liberals from the South who grew up in and then fought against the social order of Jim Crow; fewer still have been poets.
It is a poet's voice, in pieces like The Lawfulness of the Segregation Decisions, that relies for its authority not on historical evidence but on personal and historical memory and imagination. Likewise, this essay (written for a Symposium in Black's memory) suggests, it was as a poet and friend of the New Critics, also southern writers at Yale, that Black found affirmation of - and perhaps inspiration for - his trademark interpretive theory. The New Critics on poetry, like Black on the Constitution, favored the practiced reader's direct conversation with the texts in the canon, attuned to internal structures and relations and to the ways the texts echo and engage one another across generations and centuries. Certainly, many readers of poetry but no other constitutional theorists share Black's confident interpretive precept that we can leave historical "stuff altogether alone" and simply, imaginatively read centuries-old texts like the Declaration or the Constitution and know just what their authors "were saying" and what they had in mind with their "phrasal echoes" and allusions.
From the 1980s onward, Black devoted his interpretive energies to three texts, the Declaration of Independence, the Ninth Amendment, and the citizenship and privileges or immunities clauses of the Fourteenth Amendment. The historian may bristle at Black's claims about direct access to what the authors had in mind, but in fact, Black's interpretations of these three texts are uncannily close to the accounts of many of our most perspicacious historians, those most steeped in the "scraps of collateral discourse" Black scorned. The convergence is uncanny because these are not familiar interpretations. They run against more than a century's worth of doctrinal understandings and constitutional common sense. So, the middle part of this essay distills Black's intertwined readings of his three old and "unredeemed" texts and compares them to the historians'. Showing how and why they converge reveals something more general about the interplay of history, memory, and imagination in the field of constitutional law and politics.
It was the constitutional right to a decent livelihood that Black aimed, above all, to rest on his new textual foundations. But Black's interpretive energies ran thin at this point. So, the final part of the essay takes inspiration from Black and uses history in his spirit, not as a constraint on the "living Constitution," but to "refresh the reader's memory" and to flush out the "grisly, undying corpse of states' rights" that stalked national efforts to enact a right to livelihood, as it did national efforts to enact racial justice. Constitutional history pursued in Black's fashion, with an eye for historical betrayals and broken constitutional promises and their consequences, offers no binding conclusions shorn of present normative judgments, but such history provides rich support, from a quarter Black would not have expected, for his claim of the "constitutional justice of livelihood."
Suggested Citation: Suggested Citation
Forbath, William E., Lincoln, the Declaration, and the 'Grisly, Undying Corpse of States' Rights': History, Memory, and Imagination in the Constitution of a Southern Liberal. U of Texas Law, Public Law Research Paper No. 65. Available at SSRN: https://ssrn.com/abstract=544283