Justice Oliver Wendell Holmes, Image Courtesy of the Library of Congress
In From Jim Crow to Civil Rights (Oxford, 2004), Michael Klarman highlights the Supreme Court decision in Giles v. Harris (2003) as an extraordinary example where the court admitted to being powerless in stopping disfranchisement methods, even if these devices created by state legislatures were acknowledged to be unconstitutional. Klarman writes that the Giles opinion is “among the Court’s most candid confessions of limited power” (36).
Beginning with Mississippi in 1890, the former Confederate states began calling conventions to re-write their state constitutions with the goal of retaining white supremacy and disempowering African-Americans through segregation and disfranchisement. Disfranchisement measures had gained steady approval throughout the national government and popular opinion before Alabama proposed and ratified their new constitution in 1901 by racist elite Democrats intent on disfranchising African-Americans. While the constitution was not unequivocally discriminatory toward race, clauses were built in to effectively block blacks from voting. The system was created so that one group (mainly whites) could register once for life through a system that was easy to pass and another group (mainly non-whites) who had to register every time they wished to vote, having to pass a series of literacy, property and employment tests that were administered harshly.
Jackson W. Giles was president and founder of the Colored Men’s Suffrage Association of Alabama in 1902 when he filed a mandamus petition to the Montgomery County Board of Registers to register himself and five thousand other black county residents as voters. Giles was registered and had voted in Montgomery from 1871-1901 before he was denied to vote by provisions in the new Alabama Constitution. Giles challenged the decision all the way to the Supreme Court claiming that the voter registration provisions in Alabama were unconstitutional according to the Fourteenth and Fifteenth Amendments and that he be registered to vote. On April 27, 1903, Justice Oliver Wendell Holmes Jr ruled for the majority in a divided 6-3 decision that even if Giles was right in that the Alabama provisions violated the United States Constitution, the Court could not interject and order Giles to be enrolled in a voting ploy that could be considered unconstitutional. Holmes also stated that if Alabama had intended to disfranchise blacks, then the Supreme Court was powerless to strike these measures down and therefore directed Giles to file his grievances with the Alabama legislature or Congress. The decision was a definitive message toward African-Americans that the Supreme Court would not nor could they protect their civil rights.
For how important and damaging this case was for African-American voting rights, Giles v. Harris (1903) had received little scholarly attention for much of the twentieth century. In one of the best and most influential articles on the case, New York University School of Law Professor Richard H. Pilades writes that the case “has been airbrushed out of the constitutional canon.” Pilades argues in his article Democracy, Anti-Democracy and the Canon how such an important case, one that “permits the virtual elimination of black citizens from political participation in the South,” has been relatively ignored in most Constitutional Law casebooks. In the March 2009 issue of the Michigan Law Review, editor Samuel Brenner analyzes the case further with regards to Pilades argument in his note “Airbrushed out of the Constitutional Canon”: The Evolving Understanding of Giles V. Harris, 1903-1925. Brenner summarizes the case and provides further analysis on the impact of the decision and how it was interpreted by the media and scholarship over the next twenty years. A new and principle source on Giles and the case is R. Volney Riser’s Defying Disfranchisement: Black Voting Rights Activism in the Jim Crow South, 1890-1908 (Louisiana, 2010), which is partially available on Google Books.
Speaking for the Court, newly appointed Justice Holmes is the main target of criticism for the decision. There are many biographies and other scholarly works on Holmes, some of the most notable being his 3 volume collection of his writings and selected judicial opinions edited by Sheldon Novick currently available at the Dickinson Library. Other secondary sources of note on the controversial judge are Albert Alschuler’s book Law Without Values: The Life, Work and Legacy of Justice Holmes (Chicago, 2000) and Gary J. Aichele’s Oliver Wendell Holmes Jr.: Solider, Scholar, Judge(Boston, 1989) which was reviewed in the American Historical Review by Dickinson Political Science professor H. L. Pohlman.
The other five judges who joined Holmes in the majority were Chief Justice Melville Fuller, Edward D. White,Rufus W. Peckham, Joseph McKenna and William R. Day. The three dissenters David J. Brewer joined by Henry B. Brown and John M. Harlan. One of the best biographies on Harlan, more famous for being the sole dissenter in Plessy v. Ferguson (1896), is Tinsley Yarbrough’s Judicial Enigma: The First Justice Harlan (Oxford 1995). A new study that researches may find interesting is Jeffrey Rosen’s The Supreme Court (New York, 2007), which features a chapter on the contrasting personalities and opinions of Holmes and Harlan. Both books are available at the Dickinson Library.
