New York University School of law Public law and legal theory research Paper series Research Paper No 58 Keeping Legal History Meaningful Richard h. pildes This paper can be downloaded without charge from the Social Science Research Network ElectronicPapercollectionhttp://ssrn.com/abstractid=391520
New York University School of Law Public Law and Legal Theory Research Paper Series Research Paper No. 58 Keeping Legal History Meaningful Richard H. Pildes This paper can be downloaded without charge from the Social Science Research Network Electronic Paper collection: http://ssrn.com/abstract_id=391520
KEEPING LEGAL HISTORY MEANINGFUL Richard H. pildes For nearly a generation after the end of reconstruction, conventionally identified as the 1876 disputed Presidential election and subsequent withdrawal of federal troops from the South black Americans' political participation remained surprisingly robust. Even in the 1890s, half of black men continued to vote in key gubernatorial races in Southern states. More remarkably still interracial fusion coalitions controlled the state legislature in the border state of North Carolina as late as 1898 (similar coalitions endured just as late in parts of Texas ). Contrary to deterministic views of the history of race in late 19 century America, the structure of the 20 century Southern racial order -segregation and the virtual elimination of black citizens from democracy -was not locked into place by some essential, fixed, organic structure of"the white South" the moment federal troops withdrew. Far from monolithic and unified, white southerners were vehemently, even violently, fractured; the interests and passions they pressed on post-Reconstruction state politics expressed dramatically opposed visions for government The contest over black disfranchisement -and it was a contest- was inextricably bound up with this death-struggle between contending white factions: oligarchic, large, land-holding elites versus poorer, populist whites from outside the former plantation regions who had long resisted, but with sporadic success, the political domination of the oligarchs. Black votes threatened to tip This is a response to Charles A Heckman's Keeping Legal History legal and Judicial Activism in Perspective: A Reply to Richard Pildes(forthcoming. Const. Comm. 2003) Heckman's essay is a reply to richard H Pildes, Democracy, Anti-Democracy, and the canon 17 Const. Comm. 295(2000). Thanks to Larry Kramer for comments
! " ! " #$ %& ' ( # ! ) * " + #,$- * ! *./* 0 0 1 * " . * .* 2+ #,%" . * + *. 1 * 3 . " * * . 4 #,%, * 5* 6 +0 #% * " * * * 1 * 7 + * . 8 70 . "6 " * * 9 0 1 * : 0 0) * "0 * 0+ "+ + " * ; +
this balance of power A generation after the turbulence of this era, though, the comprehensive regime of white supremacy had emerged. So, too, had one party political monopolization of Southern politics, in the form of the Democratic Party. blacks had been eliminated from politics and socially segregated. Because this regime endured until the modern civil rights era, it is easy to think its reign natural and inevitable. But this regime emerged through the struggles of this era it had to be self-consciously constructed, brick by brick, year by year, in conflicts with opposing white factions close to equipoise, in battles whose outcome was often in doubt. At critical junctures, the triumph of one set of forces would send politics and culture down a particular path a path that would then make the next step easier for those forces Contrary also to the limited attention these issues have received in modern constitutional scholarship, the forms of law played a central role in taking the fluid, open-ended welter of events and crystallizing them into a particular form. First, law was an instrument the oligarchs used to leverage fragile control at one moment into more persistent form; through laws that gerrymandered election districts, and through statutory suffrage restrictions, this faction undermined its political competition in incremental stages. Doing so then culminated in the new disfranchising constitutions and constitutional amendments of 1890-1908 that in the most enduring legal form available, froze into place an electorate drained of nearly all black, and many poor white, voters. Second, desperate black citizens, viewing the federal courts as their last hope, created and arranged financing for a social and litigation movement to challenge constitutionally these disfranchising constitutions. But in Giles v. Harris, a divided Court, in an 2189U.S.475(1903)
#,%?1@$&#% . 0 *.* " *" + 0 * 1 " " 8 1 * " A ! > . >* * * + " * + .>* * * ; .* " # " + * "
opinion by Justice Holmes, resoundingly slammed the door on this last possible opening. The uncertain, shifting, sharply contested possibilities that had characterized racial issues in the South on the eve of disfranchisement were now definitively closed. The white, reactionary, ruling elite, in the form of the one-party Democratic South, was in the saddle, and no national institution was prepared to do anything -rhetorically, culturally, politically, or legally -about it. Given that neither President nor Congress was willing by this time to take any initiative in defending the Fifteenth Amendment, itself the capstone of Reconstruction, Giles might well be said to mark the final moment in the demise of reconstruction These are the critical points in Democracy, Anti-Democracy, and the Canon. Professor Heckman's warm words for the quality of the historical work underlying those claims are much appreciated. But while he apparently accepts this broader historical analysis, Professor Heckman writes to argue that we should locate the Supreme Courts abnegation not in Giles, but in Mills v Green, eight years earlier. Perhaps one should not worry much about whether the Supreme Court's acceptance of disfranchisement, the subject of little scholarly analysis until now, is better identified with Mills or Giles. The aims of The Canon, after all, were to explore the relationship of law to culture and politics, to expose the Supreme Courts role in the national toleration of disfranchisement, and to bring issues of democracy-and the destruction of democracy through law -closer to the center of constitutional thought. The specific case that best illuminates these themes is, perhaps, of less significance than that the themes be illuminated. Nonetheless, I must insist that Professor Heckman has focused on the individual legal notes being played in Giles RichardH.Pildes,DemocracyAnti-democraCy,andtheCanon17consT.comm.295 (2000 4159U.S.651(1895)
! "A " * 0 . "! 0 * 0 * 1* * . " ".* $ # "" ! * 0 *. * 0 1* * " *.5 * 0". 0 $ " % ! " "0 6 0 * * " 6 1* * " . * 7 * * 07 * * . * " " .* 4 "D* ! * + * . "
while failing to hear the melody being played. In his fixation on the most technical aspects of the Giles litigation, Professor Heckman has missed the political, cultural, historical, and legal significance of Giles as a defining moment Giles was not, of course, the first case in which courts of this era concluded that equity would not enforce"political rights. Professor Heckman seems to think that Giles could be of substantive significance only if it had newly conceived this doctrine. That is akin to arguing that Plessy v. ferguson was not all that noteworthy because the Court, having already held that interracial adultery could be punished more severely than same-race adultery, had already established that the Fourteenth Amendment did not require colorblindness. Giles was significant because it was prepared to hold political rights non- remediable in equity even in a context that was the most radical threat to the constitutional order that the court had faced under the fifteenth amendment. And giles was momentous because the decisive actors of the time understood it in these terms as a fundamental constitutional test of whether massive disfranchisement would be permitted under the shadow of the Fifteenth Amendment. Most dramatically, the language in which the Court, through Justice Holmes, justified applying the doctrine, even in such an extreme context, baldly proclaimed that the Court would not entertain head-on challenges to disfranchisement in any form of action-equitable, legal, or any other 3163US.537(896) 6See Pace v. Alabama, 106 U.S. 583(1883) 'The Court formally left open the possibility of a damages action, but no court ever acted on that option
#- ?1& $#,%- 1!+."#-?1&, #,, * . ".* * + @ 0 . D 6 " "! "* *" " " D " 0 " *" 0 * * /* 0 * 9 :! " * . *. + 0 + * #& 0 0 .* * "+ * * . * + < * " . ) * /* . " 0 .* 0 < . /* + 6 0 * * * ) " 0 *.* + * "* * 0 + 0 * . * 0 ) 3 " * 0 * " *B* "5* "+ * 6 6 ". * 0 * < 7/* .""
Giles's lawyer framed the issue in the broad test-case terms in which blacks who were active in the litigation, supported it, and were watching it, understood the stakes: a more high handed and flagrant case of the nullification of the fourteenth and fifteenth amendments to the Constitution of the United States and repudiation of their solemn guarantees to the negroes of America can never be presented to the courts of the country. Giles brief concluded in ways that could hardly have framed the confrontation more momentously: " And this court must know that the honor of this nation is bound to suffer in the estimation of the world if its solemn constitutional guarantees made to the negro shortly after the late civil war, when his conspicuous service in behalf of the Union was fresh in the minds of the American people, are allowed to go unenforced, and to become a dead letter in a well-established case like this. 9 To dispute that the stakes were high would be foolhardy, given that the new Alabama Constitution of 1901 contained, as later historians have remarked, the most elaborate suffrage requirements that have ever been in force in the United States. Moreover, Jackson Giles was hardly an idiosyncratic well-to-do plaintiff off on a solitary litigation lark. Giles, a janitor in the federal courthouse in Montgomery, Alabama, was president of an Alabama organization called the Colored Men's Suffrage Association. More work needs to be done on the history of this intriguing organization, bRief for Appellant in Giles v. Harris, No 493, at 4 (October Term, 1902) Id, at 16. Earlier, the brief had further framed the issue, not in the narrow procedural terms Professor Heckman sees, but in the broad terms that the case was obviously meant to raise To the negro, if the guarantees of the fourteenth and fifteenth amendments are stricken from under him, under the pretense of the want of jurisdiction in the courts of the United States to enforce them, he has only one other guarantee between him and actual slavery: that is the one contained in the thirteenth amendment. What reason would he have to hope for protection under that one, should the Southern states by similar methods undertake to deprive him of that rantee? "Id. at 7 10See the Canon at
> C+"4 @% " @E ."#% D " #-2" . * *" 0 * ! ".* . 0 .+ * = 9 " * * * "* 0 5* * ? 1 " * . 0 *+ = F 0 * + * " * 1 * 1 . * + * G:D " $ 1 " & C0 * . " < 0.0 0 + "* " 00 "* =9 < * * * ? 1 * * +. * * : C. * 0 * + * =9 * * 0 . * * 0 * * +0"0 * * + . ? 0 " 0 * " . 0< . : * 00 * . "+ 0. * #%# " + "9 . */* + +. ? 1 : 3 +"B C0 " 0< < C"5 * * 3 "."0 . 8 3 1* 3 0 . * 8 "
but it seems plausible that this was the central organizational vehicle blacks created in Alabama to challenge disfranchisement. Giles brought his action of behalf of 5,000 similarly situated negro citizens'"of Montgomery County. His lawyer, Wilford H. Smith of New York City, was the personal lawyer and friend of Booker T. Washington; Smith had come to Alabama at Washington's urging to handle the case, and Washington had secretly raised the funds to support the litigation -indeed, so concerned was Washington that he was risking his public reputation that he wrote his correspondence about the litigation in code. To avoid the defects of previous litigation, Smith pulled together extensive newspaper reports chronicling the comparative numbers of blacks and whites disfranchised in different counties of alabama by the new constitution. Similar suits were filed in Louisiana and Virginia, which appear to have awaited the result in Giles. The financial, organizational, personal, and emotional resources the black community invested in Giles were substantial -and these were scarce resources that could not be marshalled time and time again in communities where public defiance frequently met economic or more violent forms of intimidation. Professor Heckman's focus on the bare legal text of Giles fails to appreciate the unique effort mobilized to press the litigation, nor the fact that the litigation was at one and the same time one of the only cards, as well as the last card, the activist black community had to play to challenge disfranchisement in the national political arena Alabama's lawyer also urged the Court to confront disfranchisement head-on, instead of framing the case in narrow procedural or technical terms. He forthrightly admitted that the I Morgan Kousser, Colorblind Injustice 322(1999) "My collaborator, Professor Rebecca J Scott, has done research which suggests that Louisiana officials put the challenge to disfranchisement on hold there, and then after Giles pressed the courts to resolve it, after the state brought forward arguments based on Giles itself as to why the case should be dismissed
3 ( *" . D 5* #%%% 3 . "! .B1 " 0* ' * * " " * + " . * 0 * . " 0 * . - .* *. 0 8 +. . C. * . &" * 9 8 : 3 * 0 "F 1 40H "0 0 > F ;1 . F * " F * * 7 " 0F 0 *. * 0 . * + + * "1 * 6 + 0 + *. . 0 * .. 0 * 1* 0 ' * I "0 +0 * " " 8 " " * . * + " 0*. 7 0 * * . * 0 *. /* + ! * . 6 " * /* .8 " 0 "0 " + . * .0 * * < " 0 *
Alabama Constitution of 1901 employed tests that would exclude"many whites "as well as "the mass of the negro population"from the vote. Alabama's lead argument, and most of its brief, was devoted to the fundamental, substantive constitutional merits. Thus, the state urged that the purposes of the constitutions drafters was irrelevant; that the constitution on its face did not single out negroes for disfranchisement; that if the constitution were administered in a discriminatory way that was a defect that could not be traced to the constitution itself and hence could not be remedied by attacking the constitution itself; and that alabama had the obvious right to exclude those who could not meet the"good character"and"understanding tests Alabama pressed the Court to address these underlying substantive issues: "It is important, for obvious reasons, that the latter question the substantive merits of whether disfranchisement was constitutional], if possible, be authoritatively settled. 4 Both sides, therefore, framed the case as the culminating act in the disfranchisement saga The Court, too took on the challenge in these terms. holmes recognized that the stakes went well beyond doctrinal principles previously established. Thus, Holmes nodded toward the traditional limits"that precluded proceedings in equity to remedy political wrongs. But he hardly considered that a sufficient answer, given the magnitude of what was involved. For immediately after restating this traditional principle, Holmes went on to explain why that principle was put in issue by the massive, constitutional disfranchisement of which Giles complained in his proto-class action: "But we cannot forget that we are dealing with a new and Brief for Appellee in Giles v. Harris, No. 493, at 8(1902) Id. at 2. 15189 U.S. at 486(citing Green v Mills)
> C+"4 @% " ,#% D " #,%?1 @,- C +3 $ . * #%# 0 * 6* 9 0 :09 * : + . * " ." 0 + * "*. + * *" * * * 0+ ; * * ; * 0 0 " 0 * . * * . . * ; . .+ * 6* 0 * 9 : 9* : . * * *. +*=9D " .+ * " /* J *. + 0 0 * K" .".* + :> " " * * " " 8 0 0. + * . *" 0 9 : * /* 0 >* * 0"+ * 0 0 + + ) " 0 6 0 0 * *. +" * 0C * 0 0 0 0
extraordinary situation, and we are unwilling to stop short of the final considerations which seem to United States to dispose of the case. 16 The precise point of Giles'argument was that traditional equitable restraints on remedying deprivations of political rights should not preclude relief when a state engaged in a conspiracy to nullify the reconstruction Amendments -in as high-handed and flagrant a manner as imaginable. As Giles'lawyer put it, while money damages might adequately remedy routine voting-rights violations, it would be"absurd"to think such an award, however large, could be adequate when massive, race-based, constitutional disfranchisement was involved. Justice Harlan, in dissent, similarly went out of his way to observe that"the case involves questions of considerable importance. Given all this, it is rather an understatement, at the least, to describe Giles as a case "basically concerned with procedural issues of no lasting consequence Holmes, not seeing things this way, went on to address the"final considerations"that he sSerted had to be confronted to deal properly with the "new and extraordinary situation "Giles in fact presented. Fully appreciating the context of Giles, Holmes addressed those"final considerations with justifications themselves so final in character as to still, more than 100 years later, take a readers breath away The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiffs name to be inscribed upon the lists of 1902 will be needed. If the 16189US.at486 gIles Brief, at 7. 18189US.at494 CHarles A. Heckman, Keeping Legal History "Legal""and Judicial Activism in Perspective: A Reply to richard Pildes, Const. Comm.(2002)
#,%?1 @,- C>" $ #,%?1 @%@ "( ' 9': B* + ! += ! " , 6 * " 0* 0 0 ? 1 : C* 0 /* . + * * 0 * * 7 9< : .C0 * "0 /* * + < + " 0 * .9.* : * 0 "9 0+": * . /* 0 +"<. " * 0 + + B* " " 0 * 0 .+ 9 + +/* . : C+ " * " " ." 9. 0 ** /* : " 0 "0 9 : . 0 9 0 6 * :" )* 6 " " 9 :0 5* + " # " . 0 = 9. 0 * . + * . . * #%0. D
conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to United States that all the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great olitical wrong, if done, as alleged, by the people of a state and the State itself, must be given them or by the legislative and political department of the Government of the United States. Decree affirmed, 220 If this is not a death-knell to any effort to persuade federal courts to enforce the Fifteenth Amendment against massive, racialized disfranchisement, it is hard to know what would be Newspaper editorials and academic commentators of the time certainly took Giles as exactly that. The Canon noted, for example, that the New York Daily Tribune, desperately cried out Somewhere, somehow, there must be a way of passing on the constitutionality of state laws which plainly nullify the spirit of the federal Constitution. 2 But as the plaintive tone of the editorial suggested, Holmes had made clear there was no such way Academic commentary in the American Political Science Review construed Giles as providing"the real explanation of the difficulty in the way of those who seek through the courts to compel the dominant race in a great section of the country to do that which that race is almost unanimously determined it will not do In the law review scholarship of the era, a harvard Law Review article, after noting the Mills case, nonetheless went on to remark that"[bly far the most significant recent case is that of Giles v. Harris.. [ which reveals] that equity considers her machinery too lame and impotent to attempt such a gigantic task as preventing the people of a state from so administering a law, fair upon its face as to effect a fraudulent discrimination on 20189US.at488 The Canon at 312 2John C. Rose, Negro Suffrage: The Constitutional Point of View, 1 Am. Pol. Sci.Rev 17,39(1906
#,%?1 @,, " # B "4 1*= * ! I0"#! 1 + #$" %#%- % 6 " 0 ? 0 * + + 1 . * " ? 1 * /* 0 * . + *" 0 " " ". 1 " * .+ . + C + ? 1 A : D * + * " 0 *0 ! 1 +0 * " + 9 6 * 0 0 * * * 0 * * 0 :D 0+0 "+ '0 +0 " $ " 0 9J.K " # J0+K /* * + 0"* " * *
