Giles v. Harris, 189 U.S. 475 (1903)
Decided April 27, 1903
Consistent with my purpose in this series, the influence of "culture" and in particular the philosophy of pragmatism on Justice Holmes' opinions, I did not look this case up for its fame or infamy.
On several metrics this is far and away the most exceptional of Holmes' first nine cases as Supreme Court Justice in which he wrote for the majority.
First, because of the length of opinions: thirty pages long.
Second, opinions. Holmes' majority opinion was seven pages long, not exceptional. But there was a written dissent. Dissents. Justice Brewer's dissent was six pages long. Justice Brown dissented without opinion. Justice Harlan dissented in a twelve-page opinion.
Third, this was a deeply-divided court. There were only eight Justices in 1903 so the decision was by the narrowest vote possible, 5-3. It was also a contentious court in this case. No doubt this case produced some fireworks in the chambers.
Justice Holmes' style was to pare down a case to its simplest core. That was his pragmatism at work. In my own view he sometimes made cases simpler than God intended them. But here, and in only one other case of these first nine, notably a nearly identical disenfranchisement case, Brownfield v South Carolina (no. 4 here) Holmes seemed to muddy the waters in order to make them look deep.
The merits of the case could not have been clearer. At the height of Jim Crow's attempts to re-fight the civil war the Montgomery County, Alabama board of registrars refused to register plaintiff Giles and 5,000 African-American men eligible to vote in violation of the post-war 14th and 15 Amendments to the U.S. Constitution, and, in Holmes' opinion, in violation of the Alabama Constitution:
The allegations of the bill may be summed up as follows: the plaintiff is subject to none of the disqualifications set forth in the Constitution of Alabama, and is entitled to vote...
I quote Holmes' statement of facts at length to emphasize the intellectual gymnastics he engaged in to keep Black male Alabamians disenfranchised.
[Giles] applied in March, 1902, for registration as a voter, and was refused arbitrarily on the ground of his color, together with large numbers of other duly qualified negroes, while all white men were registered. The same thing was done all over the state.
This refusal to register the blacks was part of a general scheme to disfranchise them to which the defendants and the state itself, according to the bill, were parties. The defendants accepted their office for the purpose of carrying out the scheme.
...the white population which framed the Constitution, consisted in shaping that instrument so as to give opportunity and effect to the wholesale fraud which has been practiced.
...
As we have said, according to the allegations of the bill, this part [section 182]of the constitution, as practically administered and as intended to be administered, let in all whites and kept out a large part, if not all, of the blacks, and those who were let in retained their right to vote after 1903, when tests which might be too severe for many of the whites as well as the blacks went into effect.
By section 181, after January 1, 1903, only the following persons are entitled to register: first, those who can read and write any article of the Constitution of the United States in the English language, and who either are physically unable to work or have been regularly engaged in some lawful business for the greater part of the last twelve months, and those who are unable to read and write solely because physically disabled; second, owners or husbands of owners of forty acres of land in the state, upon which they reside, and owners or husbands of owners of real or personal estate in the state assessed for taxation at three hundred dollars or more, if the taxes have been paid, unless under contest.
By § 183, only persons qualified as electors can take part in any method of party action. By § 184, persons not registered are disqualified from voting.
...
Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff's desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to dismiss the bill or the appeal on that ground...
All so far is going as a statement of facts leading in straight line to ordering that plaintiff be registered to vote and vote. Holmes says as much:
It seems to us impossible to grant the equitable relief which is asked.
Not so fast, Crow Breath:
The difficulties which we cannot overcome are two...
first...: the plaintiff alleges that the whole registration scheme of the Alabama Constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But, of course, he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If, then, we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?
In short: Giles says Alabama's laws are transparent fraud but Giles is asking to be enfranchised under a scheme of laws that is fraudulent.
The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in § 1979 [federal jurisdictional statute] by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make.
...the court has as little practical power to deal with the people of the state in a body. The bill [i.e. Giles'] imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent, something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that state by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief ...must be given by them [i.e. the state of Alabama or its people] or by the legislative and political department of the government of the United States.
Holmes' is not going to re-fight the Civil War. This is a morally bankrupt opinion that shows the impotence and bankruptcy that is deep in pragmatism's soul on moral issues.
