Keeping Legal History "Legal" and Judicial Activism in Perspective: A Reply to Richard Pildes
Heckman, Charles A., Constitutional Commentary
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. …