Democracy, anti-democracy, and the canon.

• Author: Pildes, Richard H.

Democracy is the Banquo's ghost of American constitutionalism. Appearing evanescently in vague discussions of process-based theories of judicial review, or in isolated First Amendment cases involving political speech, or in momentary Equal Protection forays into racial redistricting, democracy hovers insistently over the constitutional canon. Yet democracy itself has not been brought onto center stage. From the background, democracy's obligations press upon the canon's principal players--fights, equality, separation of powers, federalism. We endlessly debate which issues should be left to "democratic bodies" and which to judicial review, but with little concern for the prior question of how the law ought to structure the institutions and ground rules of democracy itself. In the conventional constitutional canon, democracy is nearly absent as a systematic focus of study in its own right. If campaign financing is addressed, it is in narrow First Amendment terms of whether "money is speech"--not as part of the broader inquiry necessarily at stake concerning the role of political parties, individual candidates, and "independent" ideological and economic groups in a healthy democracy. If racial redistricting is presented, it is as one more variant of affirmative action--not in the context of competing conceptions of the aims of political representation, or of the general tension between minority interests and majoritarian politics, or of the history of the secret ballot,(1) literacy tests, poll taxes, and vote dilution, as well as the policies and current Department of Justice enforcement practices under the Voting Rights Act. If the constitutional right to vote is noted, it is only as one example of the fundamental rights strand of Equal Protection law (along with, perhaps, the right to travel or access to the judicial system)--but not as an opening into what institutional configurations of democratic bodies, with what voting electorates, might be best for the myriad functions government now performs.(2)

If sustained attention to democracy itself has been startlingly absent from the constitutional canon, so too has its antithesis: the history in American politics and constitutional law of anti-democracy. For constitutional law played a role in sustaining the blatant manipulations of political institutions that kept America from fully becoming a democracy before 1965.(3) Recovering this history of the Supreme Court's removal of democracy from the agenda of constitutional law, for most of the 20th century, is one way of bringing democracy to constitutional thought today. In this bleak and unfamiliar saga, there is one key moment, one decisive turning point: the 1903 opinion of Justice Oliver Wendell Holmes in Giles v. Harris.(4) If canonization requires a ready focal point, this is it for (anti-)democracy in American constitutional law. By bringing Giles into the constitutional corpus, we can begin to put democracy itself at the core of constitutional thought, where it belongs.

I

Giles has been airbrushed out of the constitutional canon. It is surely one of the most momentous decisions in United States Supreme Court history and one of the most revealing. Yet, as far as I can tell, it receives nary a mention in four of the leading Constitutional Law casebooks.(5) A fifth, the most historically oriented, notices the case but in an uncharacteristically legalistic footnote that hardly conveys the stakes.(6) Professor Tribe's magisterial treatise does not cite it.(7) Giles permits the virtual elimination of black citizens from political participation in the South. Yet while extensive attention is devoted to judicial validation of separate but equal segregation, none is devoted to this. Every law student knows of Plessy v. Ferguson;(8) virtually none know of Giles. Many well-established constitutional scholars I have spoken with have not heard of the case.(9) Even among some academics seeking to make race a more central feature of the constitutional canon, the momentous case and context are not known.(10) This is not surprising, for it merely confirms how powerful canonization, or its absence, can be. Even the Soviets could admire this success at obscuring all traces of a prior political regime.(11)

Yet historically, the context of Giles is as dramatic as any in American political and constitutional history.(12) Jurisprudentially, the opinion weds legalism with realpolitik into one of the most fascinatingly repellant analyses in the Court's history. And doctrinally, the reverberations of Giles resound throughout the century; for notwithstanding the Fourteenth and Fifteenth Amendments, Giles carves out from them the category of "political rights" and holds such rights unenforceable.(13) And so they were, until Baker v. Carr,(14) sixty years later, with Giles enlisted by Justices like Felix Frankfurter in support of constitutional law's insistence that democracy remain off stage.(15)

II

Consider, first, the historical context that brought before the Supreme Court Jackson Giles, a literate black man and Republican-party activist in a federal patronage job employed as the janitor in Montgomery, Alabama's federal courthouse.(16) Giles was President of an organization called the Colored Men's Suffrage Association; he had registered and voted in Montgomery from 1871 to 1901. In the aftermath of the Civil War, black suffrage had been "the most radical element of Congressional Reconstruction."(17) With the passage of the Reconstruction Acts of 1867, the meaning of emancipation came to include--crucially-political participation and the democratization of America. The Acts required the defeated Southern States to adopt new constitutions, acceptable to Congress, as a condition for reentry to the Union. The Acts also required that eligibility to vote for delegates to these State constitutional conventions not be denied "by reason of race or color," and that the resulting constitutions guarantee racially non-discriminatory suffrage. The result was that in the next elections, nearly half the voters in the South were black; indeed, black voters at that moment constituted a majority of the electorate in states like Alabama, Florida, Louisiana, Mississippi, and South Carolina (initially, thousands of whites were ineligible because of their roles in the Confederacy while other whites refused to participate).(18) Economic intimidation was rampant and often immediate; in Giles' home town, for example, an employer noticed one of his laborers in line to vote and fired him on the spot.(19) Yet black voter turnout was stunningly high, approaching 90 percent in many elections.(20) As Eric Foner puts it, "[r]arely has a community invested so many hopes in politics as did blacks during Radical Reconstruction."(21) Jackson Giles apparently shared in that hope. The Fifteenth Amendment, adopted in 1870, gave these hopes constitutional expression and, no doubt Giles thought, constitutional security.

Black (male) political participation remained extraordinary high long after federal military forces were withdrawn from the South in 1877. In 1880, two-thirds of adult black men voted in the Presidential election; even in the 1890s, half of black men still voted in key governor's races in Southern states.(22) Black officials also held political offices (around 2,000 in number) at every level in the South, from state Supreme Courts, to the U.S. Senate, down to the county and local level.(23) Indeed, the number of Southern black legislators elected in 1872 was not matched again until the 1990s (in the wake of Thornburg v. Gingles(24)), and, though black officeholding declined sharply by 1880, even that much-reduced number was not again reached until 1972, seven years after the Voting Rights Act.(25)

Yet the forces of elite, conservative, white political control, through the organized vehicle of the Democratic Party, slowly recovered political power through a series of increasingly effective tactics: outright violence and intimidation, including in the worst single day of carnage, the massacre of at least 105 surrendering blacks at the courthouse in Colfax, Louisiana(26) (the focus of initially successful federal prosecutions soon overturned in United States v. Cruikshanl(27)); fraudulent manipulation of ballots; racial gerrymandering of election districts and other dilutive structural devices; and statutory suffrage restrictions that greatly reduced the black and poor-white electorate. For those who mistakenly believe in the inevitability of white supremacy in this period, the key word here is "slowly"; it took several years of the self-conscious construction and organized mobilization of a militarized white supremacy, often against a divided white business community willing to accommodate black political participation for the sake of stability, to enable white "redemption" of the South.(28) This step-by-step process eventually culminated in sufficient white control to produce new constitutional conventions, or suffrage-restricting constitutional amendments through referenda, in every former Confederate state, starting with Mississippi in 1890 and ending with Georgia in 1908.(29) The avowed purpose of these new constitutions was to restore white supremacy, but that was not their only aim. For the Framers of disfranchisement were typically the most conservative, large landowning, wealthy faction of the Democratic Party, who were also seeking to entrench their partisan power and fend off challenges from Republicans, Populists, and other third parties, as well as from the more populist wings of the Democratic Party. While pledging not to disfranchise any whites, they advocated provisions that would remove the less educated, less organized, more impoverished whites from the electorate as well--and that would ensure one-party, Democratic rule, which is precisely what happened from this moment forward through most of the 20th century in the...