Keeping Legal History Meaningful
Pildes, Richard H., Constitutional Commentary
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. …