Democracy, Anti-Democracy, and the Canon
Pildes, Richard H., Constitutional Commentary
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.
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. …