By: The Fusionist
On April 27, 1947, the Baltimore Sun profiled Horace Edgar Flack, “a placid, unassuming, kindly doctor” – meaning he had a Ph.D. from Johns Hopkins in political science. As head of the Department of Legislative Reference for both Baltimore and for the entire state of Maryland, Flack helped draft bills for the lawmakers and gave them information about similar legislation in Maryland and in other states. Flack had been described as “a walking encyclopedia” – “If you want a bill drawn up on any subject, he can oblige in about fifteen minutes, provided the matter is not too complicated. If it is complicated, it takes a few minutes longer.” Flack was so indispensable that “[w]hen he leaves the Department of Legislative Reference for even a matter of minutes, the business of lawmaking all but comes to a standstill.” His staff credited him with drafting eighty percent of the state’s laws since he took the job thirty years before.
(Insert libertarian joke about taking Flack on a long, relaxing Caribbean cruise)
Flack and his wife shuttled between Baltimore and – when the legislature was in session – Annapolis. In both places, Flack’s office desk was “[n]ever piled higher than six inches with a remarkable assortment of papers[.]” The desk “is all but buried by the end of a legislative session.” Yet Flack could “put his hand into the heap and come up with any desired document with unerring accuracy.”
No wonder state politicians were anxious as Flack, who had been born in 1879, neared the mandatory retirement age: “The thought of his impending retirement two years hence causes shudders among Maryland officials, who are sure there will never be another like him.”
The readers of this laudatory article wouldn’t know of the old civil servant’s family difficulties as his daughter became estranged from her soldier-husband – a war hero who had perhaps been spending more time in French territory than was compatible with maintaining family life. Not to mention that within two months of the article, Horace Flack was going to become even better known to members of the legal establishment throughout the country. This time, he would not be known as a facilitator of new state laws, but as a potential obstacle to them. A scholarly paper he published as a young man, arguing that the states had to obey the Bill of Rights, was about to get drawn into a debate over the relationship between state power and individual liberties.
These were heady times for a man the Baltimore Sun said “has been called…‘the greatest man that ever came out of the hillbilly country of North Carolina.’” Now, Flack had never fully “come out” of rural Rutherford County in the southwest of the Tarheel state. Horace owned the ancestral farm (formerly co-owned with his late brother Roswell, a physician) and visited the farm when he could screw Tom Wolfe. What Horace had left behind in North Carolina was a fairly shocking family secret which went back half a century.
While Horace Flack was growing up, his family were small farmers and not often well-rewarded for their exhausting labor. Horace’s father Millard reportedly told a nephew “you can continue to raise cotton if that is what you want to do, but I never expect to plant another cotton seed as long as I live.”
Millard Flack certainly did not plan for his son Horace to be a farmer. Making what must have been a considerable sacrifice, Millard sent Horace to Wake Forest College (now Wake Forest University) in Winston-Salem, NC. (Horace’s brother Roswell also pursued higher learning at this time).
Horace’s uncle, Mills Flack, was more enthusiastic about the farming life, but did not like the economic decline of small family farms like his, a phenomenon for which he blamed sinister plutocratic forces (“Shylocks”). Mills Flack served in the North Carolina legislature in the 1890s, during a brief interval during which agrarian Populist radicals like himself combined their votes with the votes of black Republicans to displace the Democrats and set up a Populist/Republican “Fusion” government.
At Wake Forest, Horace joined the Euzelian literary society, one of two such societies to which students were required to belong. The literary societies, rather than the faculty, punished student misconduct such as “trampling the grass…spitting on floors of chapel and classrooms and halls, and library, or keeping firearms, or throwing water from the windows.”
The Euzelian society and its counterpart, the Philomathesian society, conducted regular debates. The topic in February 1900 was “Resolved: That England was not justified in making war upon the Boers.” Flack took the negative, apparently meaning that he argued England was justified in fighting against the white farmers who ran the Boer Republics in South Africa (I haven’t read Flack’s paper but it’s in Wake Forest’s archives).
Speaking of giant power-hungry entities trying to absorb white farmers…the Democratic Party in 1900 resolved to completely destroy the Fusion coalition and establish a political monopoly. The Democrats did this by proposing a state constitutional amendment to disenfranchise large numbers of black voters, without whom nothing stood in the way of a solid Democratic majority. Democrats harped on White Supremacy, and the disenfranchisement amendment passed, securing one-party Democratic rule for several decades. In the wake of the excitement of the White Supremacist agitation in Rutherford County, there was a murder and a lynching, and Horace Flack’s uncle Mills Flack was at the center of it.
Mills Flack had a dispute (over peaches) with a black sharecropper or tenant, Avery Mills, and the tenant’s wife, Raney. Avery Mills threw a rock, Mills Flack shot Avery Mills and tried to take Avery Mills’ gun, and Avery Mills fatally shot Mills Flack. A lynch mob making up about a quarter of the local population (by the widow Raney Mills’ estimate) took Avery Mills out of police custody and killed him. The only person convicted in the affair was Raney Mills, who was promptly pardoned. Mills’ family tradition says there were warrants out for two of the alleged lynchers – sons of Mills Flack, and therefore cousins of Horace Flack. According to tradition, the cousins hid out for a time until the authorities seem to have lost interest and dropped the matter. Some of the lynchers seem to have had second thoughts when they realized that Mills Flack had fired the first shot, but by then the deed was done.
Young Horace left North Carolina, leaving his family’s scandal behind. He went north, but not beyond the Mason-Dixon Line. He became a graduate student at Johns Hopkins in Baltimore, Maryland, studying political science. The political science department at the time was one man, Westel Woodbury Willoughby. Professor Willoughby suggested a couple research projects for Flack to work on.
The first project, published in 1906, was about the recent Spanish-American war. Flack was skeptical about the American justification for the war, which had been based in part on alleged atrocities the Spaniards committed in fighting a Cuban rebellion. Flack said that the Northern forces committed atrocities against the South during the Civil War, and European powers wouldn’t have been justified in interfering on such grounds. “War is bad at its best, and when it assumes its worst form, General Sherman’s definition [of war as hell] does not seem inappropriate.”
Willoughby’s next assignment for Flack was a study of the origins of the Fourteenth Amendment, a key U. S. constitutional provision pushed through by Northern Republicans after the Civil War. Willoughby was working on a book about U.S. constitutional law and probably wanted to commission a study which would help with his own work. It was a delicate project for Flack to undertake, since if black lynching victims received “equal protection of the laws” as the Fourteenth Amendment required, some of Horace Flack’s relatives would probably be in prison or hanged.
But Horace Flack applied himself to his task, looking up old Congressional debates from the Reconstruction era when Northern Republican politicians, like Congressman John Bingham, discussed their ideas for constitutional protection of the freed slaves and Unionist white Southerners in the former Confederate states. Flack’s conclusion: The history of the debates on the 14th Amendment showed a purpose to make the states obey the first eight amendments to the Constitution – the “Bill of Rights” (possibly minus the 9th and 10th amendments). The privileges and immunities of American citizenship – protected by Section One of the Fourteenth Amendment – included the rights in the first eight amendments. If anything, Flack’s research did not go far enough – there was no Internet in those days, so Flack missed some key newspaper articles of the Reconstruction era agreeing with the interpretation Flack was advancing.
Flack’s book, The Adoption of the Fourteenth Amendment, did not exactly cause a big splash at the time. In the same year the book was published – 1908 – the U.S. Supreme Court issued a key decision, consistent with earlier precedents, that only a few parts of the Bill of Rights are applied to the states on an arbitrary, feelz-based basis. Most of the rights in the Bill of Rights – in the 1908 case, the freedom from self-incrimination – were simply optional on the states, which could ignore them if they wanted. Likewise with the right to trial by jury, in civil and criminal cases, and the right to have one’s case heard by a grand jury, and some other rights – the states could observe these rights or ignore them, based only on their own constitutions.
But having completed his doctorate, Flack now had to find work. While he had thought about working in North Carolina, he changed his mind when he met Edith Henning, a Baltimore belle whom he married, and he decided to make Maryland his home. The city of Baltimore had just created a Department of Legislative Research to provide nonpartisan assistance to local lawmakers, and Flack was the first person appointed to this new position – and there wouldn’t be another appointment for almost fifty years.
Based on his experience, Flack wrote a paper for the American Political Science Association, singing the praises of legislative reference bureaus like his. Private interests had their staffs of lobbyists who researched and drafted bills to benefit their clients, and then tried to get the legislatures to pass such bills. Shouldn’t the public be served by draftsmen researchers with no allegiance except to the common good? Such draftsmen and researchers should have long terms of service to give them experience and provide for developing good institutional memory. Other states were using reference bureaus, to good effect. It was just a matter of hiring good people for these positions and then letting them do their jobs.
The Maryland legislature got the hint and appointed Flack as the head its own legislative reference bureau. Now Flack was working for both Maryland and the city of Baltimore.
An outside project Flack did in 1920 might have given him a chance to get some influence on the Supreme Court, but it doesn’t seem to have worked that way. Former President William Howard Taft, a leader of the prestigious League to Enforce Peace which sought to avoid another world war, published a volume of his writings and speeches about peace, and Horace Flack was one of the editors of the project. Taft was a supporter of the League of Nations, just like President Woodrow Wilson and the Democratic Party in general. The Republican candidate for President, Warren Harding, didn’t like the League, which the U.S. Senate had rejected. The ambitious Taft wanted to be Chief Justice, a job no Democrat would give him, so he threw his support behind Harding with some pious hopes that Harding would end up being for the League. That didn’t happen, but in 1921, Harding made Taft the Chief Justice of the United States. But if Flack had been in touch with Taft about Flack’s Fourteenth Amendment book, Taft gave no sign of it, focusing his constitutional jurisprudence on the protection of strictly economic rights while being wishy-washy and vague on applying the Bill of Rights to the states (Taft’s colleagues indicated that freedom of speech and the press might apply to the states, after first denying that they did).
In the 1930s, Flack spoke to Parent-Teacher associations about education and to the League of Women Voters about voter registration and voting machines. When the 1935 legislature adjourned, the Baltimore Sun ran an admiring article about how Flack and his staff spent five days, together with near-sleepless nights, making sense of the legislature’s work and organizing it for publication. Horace Flack was circulating in highly respectable circles – he had gone far for a country boy.
Flack even earned a mention in the New York Times – via the social pages – when his daughter Marialice married Lieutenant Lee Carl Miller on October 14, 1936.
The following day, October 15, a jury in Connecticut convicted Frank Palko of first-degree murder for killing two police officers during a robbery. Earlier in the year, a jury had rejected a first-degree verdict and convicted Palko of second-degree murder for the offense. A state appeals court ruled that the trial judge had made errors in Palko’s favor, warranting a new trial. This sort of procedure was unusual – most jurisdictions, including most states and the federal courts, hold that once a jury refuses to convict on a charge, the defendant cannot be retried on that charge. After Palko got a death sentence at his second trial, Palko’s lawyer, David Goldstein, took the case to the U. S. Supreme Court, claiming that Palko’s second conviction violated the constitutional right not to be subject to “double jeopardy” for the same crime.
Goldstein discovered Flack’s book on the Fourteenth Amendment, and relied heavily on the book in his Supreme Court arguments. Goldstein referred to The Adoption of the Fourteenth Amendment as “a scholarly document which, to counsel’s knowledge, has not hitherto been called to the court’s attention.” If the Bill of Rights applied to the states, via the Fourteenth Amendment, then Frank Palko had been subject to unconstitutional double jeopardy.
Goldstein’s argument didn’t work. The Court, which had already taken a lot of grief from New Dealers and progressives for overturning “democratically enacted legislation,” wasn’t going to take such a radical step as to force the states to obey the Bill of Rights. Sure, there were a few provisions of the Bill of Rights which were important to “ordered liberty” – free speech, free press, and the right to just compensation – and those parts of the Bill of Rights applied to the states. But other parts of the Bill of Rights were not so fundamental: jury trial, the right against self-incrimination, and the right not to be subject to double jeopardy. Palko was executed. Justice Hugo Black had apparently learned about Flack’s book from Goldstein, and began to ponder the work.
Meanwhile, the forces of organized do-goodery in California were chipping away at another right in the Bill of Rights. The district attorney of Alameda County, an ambitious fellow named Earl Warren, got several “law ’n order” measures on the 1934 ballot, including a provision that if a criminal defendant failed to take the stand in his own defense, the prosecutor could use the defendant’s silence as an argument in favor of guilt, never mind the Fifth Amendment right not to incriminate yourself. Warren’s measures were supported by civic groups and the press. The Sausalito News said that the self-incrimination provision would mean “a better administration of criminal law.” The self-incrimination provision and the other ballot measures easily passed by two to one margins, becoming part of the California constitution.
California prosecutors had the chance to use this self-incrimination law against an alleged murderer named Dewey Adamson. Adamson was accused of breaking into the house of a Los Angeles widow and beating and strangling her to death. After the prosecution gave its case, Adamson said nothing and produced no witnesses – Adamson had a criminal record which would have been brought up if he’d testified. Summing up to the jury, the prosecutor taunted Adamson by saying “it would take about twenty or fifty horses to keep someone off the stand if he was not afraid.” Adamson was convicted and sentenced to death. Adamson’s lawyer claimed that California had violated the right against self-incrimination, and that this right was binding on the states via the Fourteenth Amendment.
Up to the U.S. Supreme Court the case went, just as personal feuds and antagonisms among the Justices were sharpening their philosophical differences.
The Justices were all New Deal progressives, appointed by the late Franklin Roosevelt to purge the Constitution of federalism and economic freedom in the interest of a federal welfare/warfare state. But having put that triumph under their belts, the Justices were split into quarrelling factions, having bitter catfights with each other.
One faction was associated with Felix Frankfurter, shown here, oops I mean here, no, seriously folks, here.
Frankfurter was a zealous New Dealer from before there even was a New Deal. As a Harvard professor, he had supplied advice and personnel to the Roosevelt administration. He took judicial progressivism to its logical conclusion: Frankfurter believed that, having killed off economic rights by agreeing to the laws the majority wanted, it was time for the Supremes to defer to all parts of the democratic process. Why should noneconomic rights, like the stuff in the Bill of Rights, be considered more important than economic rights? These issues should largely be left to the voters and their elected representatives except in extreme cases where (as assessed by Frankfurter) the democratic process went Too Far. But at the state level, violating the Bill of Rights was not, in and of itself, Too Far. States should be free to experiment with such “reforms” as abolishing juries and grand juries, allowing the prosecutor to appeal acquittals, and compelling suspects to incriminate themselves.
The other faction was associated with Hugo Black, a former Alabama Senator who had developed a genuine attachment to some civil liberties. Black agreed with Frankfurter that the courts should not protect economic liberties, but where non-economic rights were concerned, Black thought the way to preserve freedom was to uphold the entire Bill of Rights against the states, not just a few selected parts of the Bill of Rights. Focusing on the first eight amendments would keep the courts from being arbitrary in picking and choosing which freedoms to value.
Black had been researching the intent of the Fourteenth Amendment, relying to a great extent on Flack’s research. The Adamson case provided an opportunity for Black to show his conclusions. Black found three other Justices to agree with his view that the states had to obey the Bill of Rights.
The other five Justices were not impressed. On June 23, 1947, the Court decided that, whatever Black’s research might say, the precedents were against the Bill of Rights. The states didn’t have to respect the right against self-incrimination. Adamson was executed.
Despite his victory, Frankfurter was dissatisfied. Outvoting Black was not enough, Black had to be attacked and refuted on a scholarly level. Frankfurter, not Black, was supposed to be the intellectual leader of the Court. Frankfurter was the learned scholar, the ex-Harvard professor. Black was some hick cracker who was simply too dumb to appreciate good scholarship if it bit him on the ass. If only one of Frankfurter’s former students could step up to the plate…
Fortunately, a friend and ex-student of Frankfurter’s did precisely that, apparently without any prompting from the Justice. Professor Charles Fairman of Columbia Law School was just starting up his school’s law journal. What a great venue to highlight a scholarly rebuttal to Black…and of course to Flack.
Naïve as he was, Flack had believed that it would be Southerners who would object to the implications of his scholarship, which gave a broad interpretation to the Fourteenth Amendment which the Southern leadership had tried to prevent being passed in the first place. Flack did not anticipate that certain highly-placed Northern progressives would in effect put on their Confederate flag trucker hats and raise the biggest stink about Flack’s work.
Fairman lacked Flack’s respect for the framers of the Fourteenth Amendment. To Fairman, as to Frankfurter, the Reconstruction Republicans were vindictive fanatics who needlessly antagonized the South. To Fairman, the Northern Republicans’ Southern allies under Reconstruction consisted of “the Negroes, the carpetbaggers…and a few long-suffering Southern Unionists – a combination which was weak, inexperienced, often corrupt.” (And Frankfurter showed his sympathies when he referred to the “vengeful spirit which to no small degree envenomed the Reconstruction era.”)
In his 1949 article, Fairman dived into his defense of Frankfurter…with relish. Coincidentally, Fairman found exactly what he thought he would find: historical evidence backing up Frankfurter’s views. The Fourteenth Amendment was never meant to apply all of the Bill of Rights to the states. The true meaning of the Amendment was vague, which as Fairman later explained, meant that it was up to the federal courts to work out the details of what the states could or could not do.
The bottom line for Fairman was that Flack’s scholarship was no good, and Black had embarrassed himself by relying on Flack’s work.
In 1948, Flack’s statutorily-mandated retirement was approaching – he would reach the retirement age of 70 in 1949. Governor William P. Lane, Jr., wrote to the state Attorney General, asking for legislation to allow Flack to stay in office beyond 1949. “Knowing the esteem in which Dr. Flack is held by all of those who come in contact with him on official business of the state,” the governor wrote, “I am sure the General Assembly will give this proposal favorable consideration.” The mayor of Baltimore likewise wanted to keep Flack in his city position.
In 1949, the same year as Fairman’s article skewering Flack as a scholar, the Maryland legislature passed a law which the governor cheerfully signed, allowing Flack to serve past the normal retirement age.
After three more years’ service in office, Flack had a heart attack and a stroke in 1952, putting an end to his career. After four years in retirement, he died in 1956. He is buried in his native Rutherford County.
The Supreme Court has yet to accept Flack’s conclusions about the Bill of Rights, reinforced as those conclusions have been by subsequent scholarship. While adhering to the pick-and-choose philosophy, the Supremes have decided to apply a few more Bill of Rights provisions to the states, such as double jeopardy and self-incrimination – though it was a bit too late for Palko and Adamson. In 2010, the Supremes applied the Second Amendment to the states, over voluble progressive protest. Other rights, like civil juries and grand juries, are still up to the states to observe or not, at their discretion.
Works Cited
Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment – Freedom: Constitutional Law, 70 Chi.-Kent. L. Rev. 1197 (1995).
Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol70/iss3/10
“The Ballot Propositions,” Sausalito News, No. 43, Oct. 26, 1934, http://bit.ly/2mL5xgK
- Timothy Cole, The Forest City Lynching of 1900. Jefferson, NC: McFarland, 2003.
Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press, 1981.
Ed Cray, Chief Justice: A Biography of Earl Warren. New York: Simon and Schuster, 2008, p. 72.
“Dr. Flack Finally Finds Out Just What Assembly Did,” The Baltimore Sun, Apr 7, 1935, p. 9.
“Dr. Flack To Address League: Women Voters to Hear Talk On A Permanent Registration And Voting,” The Baltimore Sun, Nov 22, 1936, p. SC17
“Dr. H. E. Flack, Ex-Law Data Chief, Dies: Linked with Government Machinery in City from 1907 to 1952,” The Baltimore Sun, Jun 27, 1956, p. 38.
“Dr. Horace E. Flack; A Capable State and City Official,” The Baltimore Sun, Jan 1, 1943, p. 12
“Dr. Horace E. Flack To Speak,” The Baltimore Sun, May 19, 1933, p. 9.
Entries for Horace Edgar Flack and his various relatives, findagrave.com.
Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review, Vol. 2, No. 1 (Dec., 1949), pp. 5-139.
Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. New York: Twelve, 2010.
Horace Edgar Flack, The Adoption of the Fourteenth Amendment. Baltimore: The Johns Hopkins Press, 1908.
________________, “Resolved: That England was not justified in making war upon the Boers” . Anniversary speech, Negative. Jr. Thesis, (Feb. 16, 1900. 1900.), Wake Forest Archives, Junior and Senior Theses Record Group, see https://wakespace.lib.wfu.edu/handle/10339/28081
________________, Flack, Horace Edgar. “Resolved: That the South Carolina Dispensary System is Unwise”. Speech and Sr. Thesis for Master’s Degree. (1901.) Wake Forest Archives, Junior and Senior Theses Record Group, see https://wakespace.lib.wfu.edu/handle/10339/28081
________________, “Scientific Assistance in Law Making,” The Proceedings of the American Political Science Association, 1913-1914, pp. 215-221.
________________, Spanish-American Diplomatic Relations Preceding the War of 1898. Baltimore: The Johns Hopkins Press, 1906.
“Flack, Horace Edgar,” in Who’s Who in America, vol. VII, 1912-13, Chicago: A. N. Marquis, p. 707.
Carol Forbes, “Business: Looking Up,” The Baltimore Sun, Apr 27, 1947, p. SM6.
“Horace E. Flack, PH.D.,” in History of North Carolina: Volume VI: North Carolina Biography. Chicago: Lewis Publishing Company, 1919, pp. 332-33.
Lewis L. Gould, Chief Executive to Chief Justice: Taft Betwixt the White House and the Supreme Court. Lawrence: University Press of Kansas, 2014
“Lee C. Miller 1934,” http://apps.westpointaog.org/Memorials/Article/10021/
“Legislative Council Honors Dr. H. E. Flack, Veteran Aide,” The Baltimore Sun, Dec 31, 1942, p. 5
“Legislative Unit Nears End of Task,” The Baltimore Sun, Dec 6, 1940, p. 6.
Maryland Manual 1950, Volume 163, p. 160t, http://aomol.msa.maryland.gov/000001/000163/html/am163–160t.html
Maryland Session Laws 1949, Chapter 19, March 4, 1949, pp. 20-21, online at http://aomol.msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000590/html/am590–20.html
Louis [sic?] J. O’Donnell, “Printer May Have Dropped Lost ‘Streetcar’, Flack Says,” The Baltimore Sun, Feb 1, 1946, p. 26.
“MillerFlack,” New York Times, October 15, 1936.
NC Executions, 1901-1930, http://deathpenaltyusa.org/usa1/state/north_carolina2.htm [execution was by hanging until 1910, when the method switched to electrocution]
Thomas J. O’Donnell, “School Fund Bill’s Origin Still Veiled,” The Baltimore Sun, Jan 21, 1947, p. 30.
George Washington Paschal, History of Wake Forest College, Volume II: 1865-1905. Wake Forest, NC: Wake Forest College, 1943.
William Howard Taft (Theodore Marburg and Horace Edgar Flack, eds.) Taft Papers on League of Nations. New York: MacMillan, 1920.
Bryan H. Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67,” 68 Ohio State Law Journal 1509 (2007).
Westel Woodbury Willoughby, The Constitutional Law of the United States, Vol. I. New York: Baker, Voorhis and Company, 1910, pp. 175-76.
“Would Retain Dr. H. E. Flack: Lane Wants Him Kept After He Reaches Retirement Age,” The Baltimore Sun, Dec. 12, 1948, p. 22.
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I’ve gone back and forth on how to format this article. It’s hard to stay on one single topic when talking about the cultural erosion of the importance of family. As such, I’ve written and deleted this article a couple times, simply because it turns into a rant against elements of our culture. It wouldn’t be a good read. This is my final attempt, and I’m keeping it short and focused.
H.R.610 – To distribute Federal funds for elementary and secondary education in the form of vouchers for eligible students and to repeal a certain rule relating to nutrition standards in schools.