Giles's lawyer framed the issue in the broad test-case terms in which blacks who were active in the litigation, supported it, and were watching it, understood the stakes: a more high handed and flagrant case of the nullification of the fourteenth and fifteenth amendments to the Constitution of the United States and repudiation of their solemn guarantees to the negroes of America can never be presented to the courts of the country. Giles brief concluded in ways that could hardly have framed the confrontation more momentously: " And this court must know that the honor of this nation is bound to suffer in the estimation of the world if its solemn constitutional guarantees made to the negro shortly after the late civil war, when his conspicuous service in behalf of the Union was fresh in the minds of the American people, are allowed to go unenforced, and to become a dead letter in a well-established case like this. 9 To dispute that the stakes were high would be foolhardy, given that the new Alabama Constitution of 1901 contained, as later historians have remarked, the most elaborate suffrage requirements that have ever been in force in the United States. Moreover, Jackson Giles was hardly an idiosyncratic well-to-do plaintiff off on a solitary litigation lark. Giles, a janitor in the federal courthouse in Montgomery, Alabama, was president of an Alabama organization called the Colored Men's Suffrage Association. More work needs to be done on the history of this intriguing organization, bRief for Appellant in Giles v. Harris, No 493, at 4 (October Term, 1902) Id, at 16. Earlier, the brief had further framed the issue, not in the narrow procedural terms Professor Heckman sees, but in the broad terms that the case was obviously meant to raise To the negro, if the guarantees of the fourteenth and fifteenth amendments are stricken from under him, under the pretense of the want of jurisdiction in the courts of the United States to enforce them, he has only one other guarantee between him and actual slavery: that is the one contained in the thirteenth amendment. What reason would he have to hope for protection under that one, should the Southern states by similar methods undertake to deprive him of that rantee? "Id. at 7 10See the Canon at
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but it seems plausible that this was the central organizational vehicle blacks created in Alabama to challenge disfranchisement. Giles brought his action of behalf of 5,000 similarly situated negro citizens'"of Montgomery County. His lawyer, Wilford H. Smith of New York City, was the personal lawyer and friend of Booker T. Washington; Smith had come to Alabama at Washington's urging to handle the case, and Washington had secretly raised the funds to support the litigation -indeed, so concerned was Washington that he was risking his public reputation that he wrote his correspondence about the litigation in code. To avoid the defects of previous litigation, Smith pulled together extensive newspaper reports chronicling the comparative numbers of blacks and whites disfranchised in different counties of alabama by the new constitution. Similar suits were filed in Louisiana and Virginia, which appear to have awaited the result in Giles. The financial, organizational, personal, and emotional resources the black community invested in Giles were substantial -and these were scarce resources that could not be marshalled time and time again in communities where public defiance frequently met economic or more violent forms of intimidation. Professor Heckman's focus on the bare legal text of Giles fails to appreciate the unique effort mobilized to press the litigation, nor the fact that the litigation was at one and the same time one of the only cards, as well as the last card, the activist black community had to play to challenge disfranchisement in the national political arena Alabama's lawyer also urged the Court to confront disfranchisement head-on, instead of framing the case in narrow procedural or technical terms. He forthrightly admitted that the I Morgan Kousser, Colorblind Injustice 322(1999) "My collaborator, Professor Rebecca J Scott, has done research which suggests that Louisiana officials put the challenge to disfranchisement on hold there, and then after Giles pressed the courts to resolve it, after the state brought forward arguments based on Giles itself as to why the case should be dismissed
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Alabama Constitution of 1901 employed tests that would exclude"many whites "as well as "the mass of the negro population"from the vote. Alabama's lead argument, and most of its brief, was devoted to the fundamental, substantive constitutional merits. Thus, the state urged that the purposes of the constitutions drafters was irrelevant; that the constitution on its face did not single out negroes for disfranchisement; that if the constitution were administered in a discriminatory way that was a defect that could not be traced to the constitution itself and hence could not be remedied by attacking the constitution itself; and that alabama had the obvious right to exclude those who could not meet the"good character"and"understanding tests Alabama pressed the Court to address these underlying substantive issues: "It is important, for obvious reasons, that the latter question the substantive merits of whether disfranchisement was constitutional], if possible, be authoritatively settled. 4 Both sides, therefore, framed the case as the culminating act in the disfranchisement saga The Court, too took on the challenge in these terms. holmes recognized that the stakes went well beyond doctrinal principles previously established. Thus, Holmes nodded toward the traditional limits"that precluded proceedings in equity to remedy political wrongs. But he hardly considered that a sufficient answer, given the magnitude of what was involved. For immediately after restating this traditional principle, Holmes went on to explain why that principle was put in issue by the massive, constitutional disfranchisement of which Giles complained in his proto-class action: "But we cannot forget that we are dealing with a new and Brief for Appellee in Giles v. Harris, No. 493, at 8(1902) Id. at 2. 15189 U.S. at 486(citing Green v Mills)
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