March 2009 Vol. 107 No. 5 THE REVIEW

“Airbrushed Out of the Constitutional Canon”: The Evolving Understanding of Giles v. Harris, 1903–1925

Samuel Brenner

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court’s opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the “one decisive turning point” in the history of “American (anti)-democracy.” In Giles, Holmes rejected on questionable grounds Jackson W. Giles’s challenge to the new Alabama Constitution of 1901—a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the case was “airbrushed out of the constitutional canon” despite its importance—perhaps, Pildes theorized, because the American constitutional tradition takes issues of democratic governance “off the map.” Certainly, before Pildes brought the case back to prominence, few of the standard constitutional law casebooks even mentioned the decision. The case, however, disappeared from the canon in a far more gradual and nuanced manner than the epithet “airbrushed out of the constitutional canon” would suggest.

This Note traces the ways in which the decision in Giles was received and interpreted in both the general media and legal scholarship in the two decades after the decision was handed down in 1903. It argues that while during this period there was no conscious attempt to “airbrush” the decision out of the constitutional canon, as the case gradually came to be viewed by some scholars as one more concerned with procedural technicalities than with the core meaning of democracy, constitutional scholars interested in studying questions of race and disfranchisement increasingly looked toward cases (both democratic and antidemocratic) that were perhaps procedurally simpler and cleaner.

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