"Airbrushed out of the constitutional canon": the evolving understanding of Giles v. Harris, 1903-1925.

AuthorBrenner, Samuel

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901--a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the case was "airbrushed out of the constitutional canon" despite its importance--perhaps, Pildes theorized, because the American constitutional tradition takes issues of democratic governance "off the map." Certainly, before Pildes brought the case back to prominence, few of the standard constitutional law casebooks even mentioned the decision. The case, however, disappeared from the canon in a far more gradual and nuanced manner than the epithet "airbrushed out of the constitutional canon" would suggest.

This Note traces the ways in which the decision in Giles was received and interpreted in both the general media and legal scholarship in the two decades after the decision was handed down in 1903. It argues that while during this period there was no conscious attempt to "airbrush" the decision out of the constitutional canon, as the case gradually came to be viewed by some scholars as one more concerned with procedural technicalities than with the core meaning of democracy, constitutional scholars interested in studying questions of race and disfranchisement increasingly looked toward cases (both democratic and antidemocratic) that were perhaps procedurally simpler and cleaner.

TABLE OF CONTENTS INTRODUCTION I. THE CASE AND THE DECISION A. The Development of the Case B. Justice Holmes's Opinion II. POPULAR (MEDIA) REACTION TO THE GILES DECISION A. Identifying the Link Between Giles and Antidemocracy B. Reveling in the Link Between Giles and Racism C. Remaining in the Constitutional Picture III. SCHOLARLY ANALYSIS AND CATEGORIZATION A. Focus on Constitutional Importance B. Political Questions, Jurisdiction, and Equity CONCLUSION INTRODUCTION

"In this bleak and unfamiliar saga" of the history of antidemocracy (1) in the United States, argued Richard H. Pildes in his 2000 article Democracy, Anti-Democracy, and the Canon, "there is one key moment, one decisive turning point: the 1903 opinion of Justice Oliver Wendell Holmes in Giles v. Harris." (2) In 1902 Jackson W. Giles, an African American citizen of Alabama, brought a test case to the federal courts alleging that new provisions of the Alabama state constitution that were designed to disfranchise (and had the effect of disfranchising) nonwhites violated the Fourteenth and Fifteenth Amendments. (3) In a relatively short--though controversial and convoluted--opinion, the Supreme Court, led by Holmes, concluded that the federal courts had jurisdiction over the question but could not provide Giles his requested relief of being once again enrolled as a voter. (4) Holmes's two justifications for refusing to provide any relief to Giles were quite startling: first, Holmes explained that if Giles was correct that the provisions of the Alabama constitution violated the U.S. Constitution, then the Court could have no part in ordering that Giles be enrolled in an unconstitutional voting scheme; second, Holmes concluded that if there truly were a conspiracy of white southerners to disfranchise African Americans, then any pronouncement of the Supreme Court would be effectively useless. (5) Holmes ultimately boiled down the ruling in Giles to a single proposition: federal courts, sitting as courts of equity rather than courts of law, would not consider "political questions" dealing with such issues as enfranchisement or electoral apportionment. (6) This general (at least as applied to race) rule, (7) which was not solely the creation of the Giles court, (8) officially held sway until the landmark 1962 case of Baker v. Carr, (9) which ultimately helped lead to the "one person, one vote" standard applicable today. (10) The effect of the Giles ruling during the first half of the twentieth century was normatively egregious: Holmes in effect gave carte blanche to southern politicians--some of whom expressed an intent, both before and after Giles, to craft voting provisions that had the avowed purpose of disfranchising all nonwhites (11)--to do so, as long as the laws they drafted were seemingly facially neutral.

Perhaps even more startling than Holmes's strained justifications in the Giles opinion, however, especially given the normatively egregious practical results of the decision, is that, as Pildes points out, as of the late twentieth century Giles appeared to have been "airbrushed out of the constitutional canon." (12) In other words, as of the turn of the millennium contemporary constitutional scholars had little knowledge or understanding of Giles. (13) This omission can be explained, Pildes implies, by "the longer constitutional tradition" in the United States "in which issues of democratic governance were off the map altogether." (14) Pildes is probably not suggesting that there was some sort of active conspiracy to remove the decision from standard casebooks, or that scholars of constitutional law could not have read the decision had they wished to. Rather, Pildes is suggesting that scholars teaching, writing about, and discussing American constitutional law neglected to focus on this opinion. If the case truly was, or should be, the "ready focal point" of "(anti-)democracy in American constitutional law," (15) then it remains for legal historians to determine exactly how and when scholars began to ignore Giles's deeper meaning and historical context, or to marginalize or ignore the decision altogether.

This Note examines reactions to the Giles decision among both legal scholars and the public in the immediate aftermath of the case and in the two decades following the decision. (16) It argues that after a burst of media and academic interest immediately following the opinion, in which the disfranchising results of the holding received considerable attention, in the decades following the decision legal scholars gradually came to cite Giles for three broad and varied propositions, two of which had little to do with the antidemocratic nature of Holmes's opinion. This Note also argues that by the mid-1920s some scholars writing about Giles seemed to acknowledge the antidemocracy aspects of the case only in passing, instead focusing on doctrinal rules about jurisdiction, equity, separation of powers, and political questions. (17) Put another way, it appears that during this period there was no conscious attempt to "airbrush" the decision out of the constitutional canon, but that gradually some scholars came to view and discuss the case as one more concerned with procedural technicalities than with the core meaning of democracy, while others, perhaps more interested in questions of race and democracy, looked to less procedurally messy cases for teaching tools. This evolution had the effect of limiting the importance of the Giles decision in the eyes of scholars--and also in the eyes of practitioners, who did not cite it for its holdings on voting--and so probably contributed to its exclusion from constitutional law teaching texts. (18) Part I of this Note analyzes the Giles case and Holmes's opinion. Part II examines some popular reactions (primarily in newspapers) to the case in the two years immediately following the decision. Part III traces the gradual evolution of Giles in legal and academic publications from a case about race and voting rights to a case (at least in the eyes of some scholars) about the technicalities of jurisdiction, equity, and separation of powers, and the concomitant move by those scholars who were interested in questions of race and democratic governance away from a focus on Giles to a focus on similar but procedurally cleaner cases such as Williams v. Mississippi (19) and Guinn v. United States. (20)

  1. THE CASE AND THE DECISION

    Today, scholars and historians read Giles in a wide variety of ways: as an example of the Supreme Court's reluctance to issue orders it was afraid it could not enforce; (21) as a case "establish[ing] the principle that it is not the role of the courts to provide relief for political--structural--claims"; (22) as a situation in which a "cynical and disingenuous" Justice Holmes sought to avoid confronting a difficult question; (23) as an indication of Holmes's deep sense of powerlessness in the face of Southern racism; (24) as an example of how the Court, at the beginning of the twentieth century, interpreted the Reconstruction Amendments in effectively formalistic terms--to the detriment of African Americans interested in voting, who needed the protections offered by the post-Civil War Congress; (25) or as an example of the Court very deliberately acting to avoid what it saw as either an insoluble question or a political question. (26) The various readings of Giles differ so much in tone in part because of the complicated procedural posture by which Giles reached the Supreme Court and the strained nature of Holmes's opinion. This Part briefly traces the events that initially superimposed (27) the case on U.S. history and society. Section I.A describes the development of the case; Section I.B examines and critiques Holmes's opinion.

    1. The Development of the Case

      Giles began when Jackson Giles, who led an organization in Alabama (the Colored Men's Suffrage Association) dedicated to retaining the franchise for African Americans, brought a test case before the local federal court challenging the enfranchisement provisions of the Alabama Constitution...

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