Keeping legal history "legal" and judicial activism in perspective: a reply to Richard Pildes.

• Author: Heckman, Charles A.
• Position: Response to article in Constitutional Commentary, vol. 17, p. 295, 2000

1. INTRODUCTION

   The apparently innocent phrase "legal history" has demonstrated itself to be extremely treacherous territory. It encompasses both history and law, each a full discipline in itself. Ordinary law teachers who tire of the case method and practitioners who look to do something with their golden years venture there at their peril, for, untrained in historical method, they may concentrate entirely on evolution of doctrine and ignore historical context. The results of that approach, if published at all, look something like a law brief, but set in an earlier era. Entering the country from the far border, we have the historian who, with inadequate legal training, decides that what the judges say makes no difference at all, primarily because the historian does not understand it. For such a person, context is everything. The result of that kind of endeavor ignores the fact that whether or not we believe that judges generally admit the real reasons for what they are doing, we cannot know whether judges are right or wrong, dissembling or forthright, without ex,mining closely what they have to say. As Karl Llewellyn, who certainly did not take judicial language at face value, remarked: "Now the first thing you are to do with an opinion is to read it.... It is a pity, but you must learn to read. To read each word. To understand each word." (1) Ideally, therefore, legal history should reflect both the relevant state of legal institutions and doctrines and their interaction with their context.

   Professor Richard Pildes certainly does not fit either of these stereotypes; but in spite of his well merited credentials and reputation, his piece, Democracy, Anti-Democracy, and the Canon, (2) demonstrates that both Homer and Pildes can nod. (3) The Canon displays superb historical scholarship, but its end result is seriously marred by a failure to take Llewellyn's advice to heart. It recounts one of the great tragedies of American history, the loss of black voting rights in the South between 1890 and 1910. The Canon gives us a painfully clear picture of the methods the Southern oligarchs used to disfranchise blacks and poor whites as well. It goes on to say, however, that the true death-knell of black fights was sounded when the Supreme Court held in 1903 that federal courts did not have jurisdiction to grant equitable relief for voting abuses. According to The Canon, this little-known ease, Giles v. Harris, (4) represents a major turning point in American jurisprudence, "one of the most momentous decisions in United States Supreme Court history and one of the most revealing." (5) The Canon focuses enormous erudition on the historical context of Giles. The author appears to have read and analyzed in depth, and presents for our inspection, every possible source, except one-the ease of Giles v. Harris. When one finishes the essay, one knows everything about the disgraceful disfranchisement of black voters at the beginning of the twentieth century, except the state of the law analyzed in the various opinions in Giles. Because of this lack of analysis, it turns out that The Canon also misses some of the most important issues of social and historical context of the case, as well as another case that really did make a difference.

   To be sure, The Canon gives us the broad outline of Giles. Giles was a black man who had sought to register to vote under the newly restrictive clauses of the Alabama constitution of 1901, and had been refused. He filed a bill for injunctive relief in federal court, asking that the state be required to register him as a voter and that the Alabama registration system be found unconstitutional. In a short opinion, the newly appointed Oliver Wendell Holmes glossed over the jurisdictional issues and went to the merits of the case. Accepting the bill at face value, he said, the Court could not require Giles's registration under existing Alabama law because of his own allegation, which had to be accepted as true for purposes of this appeal, that that law violated the federal Constitution. On the other hand, Holmes held that the federal courts could not give equitable relief to enforce political rights, and therefore the general remedy of declaring the restrictive sections of the Alabama constitution contrary to federal law and supervising the reformulation of the Alabama electoral system was not available. According to The Canon, this denial of remedy marked the case's place in history, and put the federal stamp of approval on the disfranchisement of blacks in the South.

2. WHAT A CLOSE READING OF GILES REVEALS

   The Canon contains little discussion of Holmes's legal analysis or of the dissents. As far as The Canon is concerned, Holmes refused equitable relief, and Southern blacks lost the right to vote. The latter must have ensued from the former, and the Court should have decided some other way. One can certainly concur that the disfranchisement of black voters in the South was a national disgrace, but because it does not analyze Giles carefully, The Canon not only overemphasizes the importance of the case, but also fails to find Mills v. Green, the case that was the key to the situation. (6)

   The Canon briefly criticizes Holmes's jurisdictional holding, but otherwise takes no notice of the complicated procedural posture of the case, which is the most questionable part of the Holmes decision and the essential issue of the dissents. The Canon does not explain that the trial judge had dismissed the case for lack of jurisdiction, and under federal procedure of the time a direct appeal to the Supreme Court, in the form of a certificate from the trial judge, was available, but limited to the question of jurisdiction. (7) The Court was prohibited from considering the merits, since no trial had taken place. It was not clear here whether the trial court had dismissed because it thought it had no jurisdiction to grant the equitable relief requested, or because the required jurisdictional amount had not been alleged in the bill.

   The Canon's inattention to procedural detail is exemplified by a misstatement of Holmes's holding on the subject of jurisdictional amount. The Canon states, "Holmes found ... that the complaint did allege the requisite amount in controversy...." (8) In fact, Holmes found that the jurisdictional amount was not pleaded, (9) and that jurisdiction was the only issue raised by the certificate of appeal. According to Holmes, however, direct appeal to the Supreme Court could be founded on other sections of the applicable judiciary act, and therefore he could treat the certificate as opening the entire record.

   Holmes based this holding on dubious logic. He announced:

   But, assuming that the allegation should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. Although the certificate relates only to the jurisdiction of that court as a court of the United States, yet, as the ground of the bill is that the constitution of Alabama is in contravention of the Constitution of the United States, the appeal opens the whole case under the act of 1891, c. 517, [section] 5 (26 Stat. 827). The plaintiff had the right to appeal directly to this court. The certificate was unnecessary to found the jurisdiction of this court, and could not narrow it. As the case properly is here we proceed to consider the substance of the complaint. (10) This statement contains some dubious propositions. First and foremost, subject matter jurisdiction of a court has to appear affirmatively from the record. A court of appeal has no right to assume the matter could be rectified by amendment. (11) Perhaps jurisdiction does not exist and the plaintiff could not properly so represent.

   The second problem is that Holmes had no authority for his assertion that the jurisdictional certificate opened the whole record. The statute could most logically be read to indicate the opposite. This case was before the Court pursuant to a certificate under Section 5 of the Act of 1891:

   That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. (12) This language would seem to be fairly exclusive: Only jurisdiction should be considered on certificate from the district or circuit court. That exclusivity seems to be emphasized by the procedure for certification of issues provided by section 6 regarding certification by the newly created circuit courts of appeals:

   [I]n every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. (13) This section provides in the most specific terms for opening the entire record after certification of a single issue by the circuit courts of appeal, and is found in the section immediately following that on which Holmes relied. It seems to be a fairly clear case of expressio unius est exclusio alterius. If Congress had wanted to provide for opening the entire record upon jurisdictional certification pursuant to section 5, both the issue and the means for dealing with it were apparent...