Keeping Legal History Meaningful

This essay in constitutional history further explores the political context of constitutional law's failure to intervene in the massive disfranchisement that occurred in late 19th and early 20th century America. 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 a monolithic, unified, "white South" the moment Reconstruction ended. This essay argues instead that the racial politics of this era involved deep conflicts among whites, that white supremacy was a political and social construction that had to be self-consciously built and fought for by its proponents, and that the racial politics of the disfranchisement era were more fluid and contingent than is sometimes recognized. The essay shows that constitutional disfranchisement required bypassing popular political processes, such as statewide referendum, that were otherwise used to adopt constitutional amendments. In states like Virginia, Mississippi, Alabama, North Carolina, and South Carolina, disfranchisement was strongly resisted by several classes of whites and by blacks; succeeded only with thin, often fraudulent majorities, and was achieved by oligarchic domination of small political bodies, such as state constitutional conventions, rather than by popular support. This context is used to evaluate the Supreme Court's failure, in Giles v. Harris (1903), to find the massive disfranchisement of this period to raise any justiciable constitutional questions. In light of the fluidity of partisan and racial politics of this era, the essay defends the view that Giles was a momentous event, not just in Supreme Court history, but in the political history of American race relations more broadly. The essay builds upon earlier work and responds to questions others have raised about the role of the Supreme Court in tolerating the disfranchisement of this era, which lasted until 1965.