A Response to Charles A. Heckman's "Keeping Legal History 'Legal' and Judicial Activism in Perspective: A Reply to Richard Pildes"
The end of Reconstruction is conventionally identified as the 1876 disputed Presidential election and subsequent withdrawal of federal troops from the South. Yet for nearly a generation after that date, 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, inter-racial 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 19th century America, the structure of the 20th 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 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 straggles 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 crystallizing the fluid, open-ended welter of events 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. These efforts 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, (2) a divided Court, in an opinion by Justice Holmes, resoundingly slammed the door on this last possible avenue of challenge. 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 the 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. (3) 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 Court's abnegation not in Giles, but in Mills v. Green, (4) 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 Court's 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 in Giles 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 (5) was not all that noteworthy because the Court, having already held that interracial adultery could be punished more severly than same-race adultery, had already established that the Fourteenth Amendment did not require colorblindness. (6) Giles was significant because it was prepared to hold political rights non-remediable in equity even in a context that presented 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 …