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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+ "+ + " * ; < * 6 + + +. 7 0 70 6 . . * * 0 < *. 0 0 = "" < +* " * 0 * 0 " .* 0 *" >+