Charles L. Black Jr. Memorial Colloquium

On April 11, the Law Center hosted the third of three colloquia commemorating the life and work of the late Charles L. Black Jr., the Yale and Columbia law professor renowned not only for his teaching but for his influential work in myriad areas of constitutional law, including the winning brief in Brown v. Board of Education.The first two colloquia, held at Columbia and Yale, focused on Black’s legacy in equality law and structural interpretation. Georgetown’s panel discussed his thought on state action and positive rights.
     University of Texas Professor William Forbath opened the colloquium with discussion of Black’s last book, A New Birth of Freedom: Human Rights, Named and Unnamed (1997), which he said attempted to put substantive constitutional rights on a new foundation: not upon the rights to due process or equal protection, but upon the Declaration of Independence, the Ninth Amendment, and the citizenship and privileges immunities clauses of the 14th Amendment.
     Responding were Harry Scheiber, a law professor at the University of California at Berkeley, and Georgetown Law Professor Alex Aleinikoff. Scheiber addressed the role of historicism in Black’s legal formalism.Aleinikoff concentrated on citizenship in Black’s work and in Forbath’s account of it, saying that Black’s use of the term “human rights” does not square with his citizenship-focused theory of constitutional rights, as “human rights” generally refers more to the international than to the national sphere. He concluded that “the rights tradition of the U.S. Constitution has just about run out, at least from a progressive perspective.”
     Following this session, Law Center Professors Gary Peller and Mark Tushnet delivered a paper on “State Action and a New Birth of Freedom,” with Professors Susan Low Bloch, Charles Lawrence, and Robin West speaking in response. Other speakers included Seth Waxman, former solicitor general of the United States. Papers presented at the colloquia are forthcoming in a Georgetown Law Journal symposium issue in honor of Black.