One of the most notorious decisions in the history of the U.S. Supreme Court, Plessy v. Ferguson not only upheld racial segregation in the United States, it also lent the sanction of the Supreme Court and created the contentious doctrine of separate but equal that a later Court would eventually overturn as a self-contradiction.
On July 10, 1890, the Louisiana General Assembly, over the objection of its eighteen African American members, enacted a law that read, in part:
. . . all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.
The Louisiana law empowered train officials to assign passengers to cars; passengers insisting on going into a car set aside for the other race were liable to a twenty-five-dollar fine and twenty days’ imprisonment. In addition, the company could refuse to carry an obstreperous passenger and, if it were sued for doing so, was immune from damages in state courts. A third section outlined the penalties for noncomplying railroads and provided that “nothing in this act shall be construed as applying to nurses attending children of the other race.”
At first the Separate Car Bill was stymied by the black legislators and by railroad officials who were as anxious to avoid the economic burden of providing separate facilities as they were to avoid a boycott
After its enactment, some of the railroad companies were inclined to disregard the law, and they apparently collaborated with black people to test its validity. In 1890, the railroads had unsuccessfully challenged a Mississippi separate but equal law; the Supreme Court of the United States had held in Louisville, New Orleans, and Texas Railway Co. v. Mississippi that such a law, when applied solely to travel within the state, did not encroach upon interstate commerce.
The prominent black community of New Orleans organized to mount a legal attack upon the new law. A group calling itself the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, led by Louis A. Martinet
Martinet
The person recruited to test the segregation law was Homer Adolph Plessy, a person of seven-eighths Caucasian and one-eighth African ancestry, in whom “the mixture of colored blood was not discernible.” On June 7, 1892, holding a first-class ticket entitling him to travel on the East Louisiana Railway from New Orleans to Covington, Louisiana, Plessy took a seat in the car reserved for whites. The conductor, assisted by a policeman, forcibly removed Plessy and, charging him with violating the segregation law, placed him in the parish jail. The state prosecuted Plessy in the Orleans Parish criminal district court before Judge John H. Ferguson. Plessy’s plea that the law was unconstitutional was overruled by Ferguson, who directed the defense to address itself to the questions of fact. Having no defense in the facts, Tourgée and Walker appealed Ferguson’s ruling on the law’s constitutionality to the Louisiana Supreme Court by asking that court to issue a writ of prohibition which in effect would have directed Ferguson to reverse his ruling on the constitutional question.
On December 19, 1892, Associate Judge Charles E. Fenner
Justice Brown first disposed of Tourgée’s argument that the segregation law was a“badge of servitude,” a vestige of slavery prohibited by the Thirteenth Amendment (1865). Decisions in the 1872 Slaughterhouse cases and the 1883 Civil Rights
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
If Plessy was to gain any relief, it had to be from the Fourteenth Amendment, but that amendment, according to Brown
merely . . . enforced the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.
To support his point, Brown cited state school segregation and antimiscegenation laws and federal laws prescribing segregated schools for the District of Columbia. Special stress was placed on the 1849 decision of Roberts v. Boston
To the plaintiff’s argument that the principle of segregation could be used by the state to enforce extreme and arbitrary forms of racial discrimination, Brown responded that every exercise of state power must be “reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” There was nothing unreasonable about the Louisiana law according to the Court; in determining what is reasonable, state legislators could “act with reference to the established usages, customs, and traditions of the people, with a view to the promotion of their comfort, and the preservation of the public peace and good order.” Finally, Brown in his opinion delivered a famous statement on the relationship between law, prejudice, and equality:
The [plaintiff’s] argument also assumes that social prejudice may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.
The law in question interfered with the “voluntary consent of individuals.”
Tourgée’s fears were realized: The Court had sanctioned Jim Crowism. What comfort African Americans derived from the case had to be found in the strong dissenting opinion of Justice Harlan, who once again proved himself to be a staunch champion of a broad interpretation of the Reconstruction amendments. Harlan construed the ban on slavery to cover segregation laws; he insisted on Tourgée’s thesis that a railroad was a public highway and that under the Fourteenth Amendment government could make no racial distinctions whether one considered the case under the privileges and immunities, due process, or equal protection clauses of that amendment.
Harlan attacked the Court’s reliance on pre-Fourteenth Amendment precedents; his most memorable language appeared in connection with his charge that the majority usurped constitutional power by assuming authority to decide on the “reasonableness” of state social legislation:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not that it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
Harlan turned out to be a competent soothsayer:
The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.
Despite Harlan’s impassioned words, it would take the general public and the justices of the Supreme Court decades to adopt his views and interpretation of the Constitution. Plessy v. Ferguson’s strong sanction of segregation lasted formally in transportation until the Court’s decision in Henderson v. United States (1950) and in education until Brown v. Board of Education of Topeka, Kansas (1954). Antimiscegenation laws were not outlawed until 1967 in Loving v. Virginia.
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Fireside, Harvey. Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism. New York: Carroll & Graf, 2004. A detailed look at the legacy of the Court’s decision in Plessy v. Ferguson. -
Kauper, Paul G. “Segregation in Public Education: The Decline of Plessy v. Ferguson.” Michigan Law Review 52 (1954): 1137-1158. Kauper contends that the Court did not deal definitively with the validity of segregation legislation, relying instead on its view of “reasonableness.” -
Lofgren, Charles A. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987. In tracing the history of transportation law, Lofgren concludes that Plessy did not cause Jim Crow but instead confirmed the American racism of its era. -
Mueller, Jean West, and Wynell Burroughs Schamel. “Plessy v. Ferguson Mandate.” Social Education 53 (1989): 120-122. Traces the historical events leading to the Court’s ruling, as well as teaching strategies for instructors. -
Roche, John P. “Plessy v. Ferguson: Requiescat in Pace?” University of Pennsylvania Law Review 103 (1954): 44-58. Roche believes that the Plessy decision reflected the political climate of its time and was a judicial attempt to deal with a social and political problem. -
Woodward, C. Vann. American Counterpoint: Slavery and Racism in the North-South Dialogue. Boston: Little, Brown, 1971. Woodward discusses the irony of Justice Brown’s and Harlan’s positions, in the light of the origins of the two men.
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