Democracy, Anti-Democracy, and the Canon

Abstract

The most momentous but ignored case in U.S. Supreme Court history is probably Justice Holmes' opinion upholding the massive disfranchisement of black and poor white voters, through newly formed Southern state constitutions, that took place from 1890-1908. This essay provides historical context for Giles v. Harris (1903) and traces the doctrinal implications for 20th Century constitutional law of Holmes' conclusion that federal courts would not hear claims involving "political rights." Giles is virtually ignored in the principal sources of the constitutional canon, including the leading Constitutional Law casebooks. The essay argues that this reflects the larger absence from the conventional constitutional canon of the subject of democracy itself as a systematic focus of study in its own right. By recovering the political, social, and Supreme Court history of the destruction through law of democracy in the early part of the 20th century, this essay contributes to a larger project of seeking to place democracy itself at the center of constitutional thought.