ON JUNE 7, 1892, Homer Plessy walked into the Press Street Depot in New Orleans, bought a first-class ticket to Covington, and boarded the East Louisiana Railroad’s Number 8 train. Most passengers who buy tickets and get on a train or a bus or a plane assume that they have embarked on a journey to their destination. Homer Plessy had no such illusions. He expected that he would either be forced off the train or arrested or both, and he was not disappointed. As the train pulled away from the station the conductor asked the light-complected Plessy if he was a “colored man.” Plessy said he was and the conductor told him to move to the colored car. Homer Plessy refused. “I am an American citizen,” he told the trainman. “I have paid for a first-class ticket, and intend to ride to Covington in the first-class car.” The conductor stopped the train, and Detective Christopher Cain boarded the car, arrested Plessy, and forcibly dragged him off the train with the help of a few other passengers. After a night in jail, Plessy appeared in criminal court before Judge John Howard Ferguson to answer charges of violating Section 2 of an 1890 Louisiana law mandating separate railroad cars for white and colored passengers. The case that bears their names gave birth to legalized apartheid in the United States, the era of Jim Crow.
The Civil War and the Thirteenth Amendment brought an end to slavery, but did not give the former bondsmen either legal or political equality. In fact, the Southern state almost immediately passed a series of laws known as “Black Codes,” which, if not enslaving the freedmen, severely restricted their freedoms and put them at the mercy of whites. Opposition to black freedom often took extra-legal forms as well, as the white-sheeted Ku Klux Klan rode the countryside harassing, brutalizing, and sometimes murdering former slaves.
The Reconstruction congresses tried to protect the freedmen through a series of civil rights and enforcement statutes, and also through two more amendments to the U.S. Constitution. The Fourteenth Amendment defined as a citizen of the United States any person born in the country or who had immigrated and been naturalized. It also prohibited the states from denying to any citizen the due process of law or the equal protection of the laws, or from abridging the privileges and immunities attached to citizenship. The Fifteenth Amendment declared that the right to vote could not be denied because of race. During the time when Union troops occupied the former Confederate states, the army protected the freedmen and enforced these rights, while white Southerners seethed with resentment.
A Confederate soldier who returned to New Orleans after the war wrote how he hoped “the day will come when we have the upper hand of those black scondrels [sic] and we will have no mercy for them. We will kill them like dogs.” His sentiment reflected that of many other whites in the defeated South, but while Northerners evidenced less overt racial prejudice, for the most part white Americans, both North and South, disdained blacks as morally and intellectually inferior, people who would never be able to take their place as equals in the American polis.
By the 1870s the North had tired of the crusade. Slavery had been abolished, laws had been passed protecting the rights of those formerly enslaved, and the Constitution had been amended to safeguard the rights of citizenship. Now the former slaves and their former owners ought to be left alone to work out their new relationship. By the end of the century they had done so, but in a way that guaranteed future strife. The racism that afflicted society in general also affected the Supreme Court, which delivered a devastating blow to efforts to protect the rights of the freedmen in the Civil Rights Cases (1883).
In the last of the great Reconstruction statutes, the 1875 Civil Rights Act, the Republican majority in Congress tried to secure by law some semblance of racial equality that could be protected by the government and by courts. While no one expected that such legislation would change the prevailing racial attitudes held by both Northern and Southern whites, the law aimed to protect the freedmen from deprivation of the minimal rights of citizenship.
A critical provision of the Civil Rights Act prohibited racial discrimination in public places, what would later be called “public accommodations,” which rested on Section 5—the enforcement clause—of the Fourteenth Amendment. Five cases testing the application of this section rose in both the North and South, and the Supreme Court combined them for a single hearing in March 1883. The government argued that the Thirteenth Amendment not only abolished slavery, but had conferred all the rights of free citizens on the former slaves, while the Fourteenth Amendment had given Congress the power to protect those rights through appropriate legislation.
In his opinion for an 8–1 Court, Justice Joseph Bradley denied both of the government’s contentions, and by doing so, robbed the amendments of much of their meaning. Bradley stood on fairly firm ground when he noted that not every example of discrimination against Negroes could be interpreted as a renewal of slavery; therefore the Thirteenth Amendment could not be invoked as a ban on racial prejudice.
Although the Fourteenth Amendment had in fact been drafted specifically to ensure the freedmen’s rights, Bradley denied that Congress had any affirmative powers under the amendment. Congress could only legislate in a remedial manner to correct an unconstitutional law. If a state enacted a law that restricted black rights, Congress could then act to right the injustice. In the absence of positive state action, Congress had no power to initiate action in this area. Bradley also held that if a state failed to take action, but by inaction tolerated discrimination—such as exclusion from hotels, restaurants, and clubs—Congress could still not legislate. By this decision the Court in one stroke nullified all congressional power under the Fourteenth Amendment to protect the freedmen and left their fate to the states. It also invited the Southern states not only to tolerate but to encourage private discrimination. The ruling would remain in force until the Court disavowed it in upholding the 1964 Civil Rights Act, nearly a hundred years after the Civil War ended.
Justice John Marshall Harlan entered the lone dissent in the Civil Rights Cases, pointing out correctly that the Court had eviscerated the Fourteenth Amendment of its meaning. He also noted the bias in the Court’s judgment, since before the war the Court had accorded Congress comparable powers in upholding the various fugitive slave laws. Although he wrote in dissent, Harlan sketched out a theory of “state action” that would become the basis of civil rights jurisprudence several decades later. He utilized the idea of “affected with a public interest,” which the Court had expressed in Munn v. Illinois (1876), and argued that facilities such as railroads, hotels, restaurants, and theaters filled a public function, a notion that had long been recognized in common law and which served as the basis for regulating these services. If such businesses discriminated, then they did so with the consent of the state; this constituted state action and could be reached under the Fourteenth Amendment, even using Bradley’s crabbed view of Section 5 power. Harlan’s ideas would be the basis on which the Court built up a civil rights jurisprudence after World War II.
Not only did the Civil Rights Cases bar Congress from taking affirmative steps against racial discrimination, but states could allow private discrimination simply by looking the other way. But what if states took positive steps to impose racial segregation? What if they not only tolerated private hotels and restaurants from excluding blacks but required them to do so? Theoretically Congress still had the power to reach this type of state action. But if Congress chose not to act—and by 1883 it was clear that Congress no longer had the will or the desire to interfere in the Southern states—would the courts find the state action in violation of the Fourteenth Amendment?
Prior to the Civil War the inferior status of slaves had made it unnecessary to pass laws segregating them from white people. Both races could work side by side so long as the slave recognized his or her subordinate place. In the cities, where most free Negroes lived, rudimentary forms of segregation existed prior to 1860, but no uniform pattern emerged. In the North free blacks also labored under harsh restrictions and often found an even more rigid segregation than in the South.
One might have expected the Southern states to have created some system to segregate the races immediately after the war, but this did not happen. Instead, the confusion of Reconstruction led to a number of trends, any one of which might have become dominant. In some states the legislatures imposed rigid separation, but only in certain areas; Texas, for example, required that every train have one car in which all people of color had to sit. The South had had no real system of public education prior to the Civil War, and as the postwar governments dominated by former slaves and carpetbaggers created public schools, these were as often as not segregated by race. Nonetheless, New Orleans had fully integrated schools until 1877, and in North Carolina former slaves routinely sat on juries alongside whites.
Inconsistent segregation practices dominated North and South well into the 1880s. The picture was far from rosy, however, as racial violence grew in the South and the lynching of blacks reached an all-time high in the 1880s and early 1890s. While upper-class whites may have wanted to find some peaceful accommodation with the freedmen, demagogues like Tom Watson of Georgia fomented racial hatred among poor whites.
But although the practices of segregation may have been inconsistent, the white South stood united in the belief that blacks belonged in a secondary status in society, in which they could not exercise political power and would not threaten the social hegemony of whites. Some historians have seen the beginnings of segregation on public transportation, such as steamboats and railroads, as at least in part gender-based. White women had always enjoyed separate first-class train accommodations, so they could be insulated against the crudeness of the men’s smoking car, lower-class whites, and of course slaves and other African Americans, except those who traveled with their mistresses as maids or nannies. The men’s equivalent had been the first-class smoking car, with its bar and spittoons. When freed blacks attempted to buy tickets for these cars, the railroads, sensitive to the patronage and power of their white clients, refused.
In 1878, the Supreme Court in Hall v. DeCuir ruled that states could not prohibit segregation on common carriers such as railroads, streetcars, or riverboats. A dozen years later it approved a Mississippi statute requiring segregation on intrastate carriers in Louisville, New Orleans & Texas Railway v. Mississippi (1890). In doing so the Court essentially acquiesced in the South’s solution to the problems of race relations. Only Justices Harlan and Bradley dissented, on the grounds that such laws, even if confined to intrastate lines, had an inhibitive effect on interstate commerce.
From 1887 to 1892 nine states, including Louisiana, passed laws requiring separation on public conveyances, such as streetcars and railroads. Though they differed in detail, most of these statutes required equal accommodations for black passengers, and imposed fines and even jail terms on railroad employees who did not enforce these regulations. Five of the states also provided criminal fines or imprisonment for passengers who tried to sit in cars from which their race excluded them. The Louisiana Separate Car Act passed in July 1890. In order to “promote the comfort of passengers,” railroads had to provide “equal but separate accommodations for the white and colored races” on lines running in the state.
The measure marked a dramatic and humiliating reversal of fortune for the black and mulatto citizens of Louisiana. Although a slave state, Louisiana in general and New Orleans in particular had always had, because of their French origins, a more tolerant attitude toward people of color than did other Deep South states. In addition to the usual demarcation between black and white, since the 1700s, New Orleans had acknowledged a third class, gens de couleur libre, sometimes called Creoles, the freed descendants of European fathers and African mothers, who had enjoyed a great deal of autonomy. Although Louisiana, like most Southern states, had laws against marriage between slaves, it did allow free people of color, whites, and the gens de couleur to marry, testify in court against whites, and in some cases inherit property from their fathers. Some became slaveowners themselves, and apparently many of them accumulated significant property. Their social standing, especially in New Orleans, had insulated them from some of the white reaction following the war; for example, public schools in the city had been integrated until 1877. But when whites regained power after the end of Reconstruction in 1877, they saw only two races, and the privileged position of the gens de couleur evaporated; from then on they were black as far as the law was concerned.
Gens de couleur helped form the American Citizens Equal Rights Association when the Separate Car bill was introduced, and they pledged to fight it. Among the members of the committee was Louis A. Martinet, a Creole attorney and doctor who had also founded the New Orleans Crusader, and he and his newspaper became the leading opponents of the law. After its passage his paper called for both a legal challenge and a boycott of those railroads that had segregated cars. “We’ll make a case, a test case,” he editorialized in the Crusader, and “bring it before the Federal Court on the grounds of invasion of the right of a person to travel through the States unmolested.”
Martinet received important help when Albion W. Tourgée, a white lawyer, offered his assistance. Tourgée had fought for the North (and been twice wounded and taken as a prisoner), and after the war had been a lawyer and judge in North Carolina. There he had seen the depredations wrought upon blacks by the Klan and other white terrorist groups, and as a carpetbagger had himself been the victim of some harrowing experiences. He moved back to New York, where he wrote a number of best-selling books, including A Fool’s Errand, by One of the Fools (1879), a novel based on his experiences during Reconstruction. He used his newfound fame and fortune to advocate for black equality, and founded the National Citizens’ Rights Association.
A citizens’ committee drawn primarily from the Creole community raised $3,000 to fund a lawsuit, and Tourgée agreed to be lead counsel in the case. But they also needed a local lawyer, since the challenge to the law would have to go through state courts before it could be appealed to the federal system. A white lawyer, James Walker, finally agreed to take the case in December 1891 for a fee of $1,000. (Tourgée did not accept any fee for his involvement, which stretched over a five-year period.) Martinet did not consider any of the black lawyers in New Orleans competent to raise a constitutional question, since, as he explained, they practiced almost entirely in the police courts.
Tourgée and Martinet considered several possibilities. They could have a black passenger buy a ticket outside of Louisiana and then travel into the state, thus raising a challenge to the law under the commerce clause. They might have a fair-skinned mulatto attempt to enter the ladies’ car, but there they ran into the problem, as Martinet noted, that she might not be refused admission. In New Orleans, he wrote to Tourgée, “people of tolerably fair complexion, even if unmistakably colored, enjoy here a large degree of immunity from the accursed prejudice.”
But Tourgée wanted someone who was an octoroon, a person who was “of not more than one eighth colored blood,” because he believed the winning strategy would be to expose the ambiguities in the definition of race. How did the law, or a train conductor, determine the race of a passenger? “It is a question,” Tourgée told his colleague, that the Supreme Court “may as well take up, if for nothing else, to let the court sharpen its wits on.” Martinet agreed, and in New Orleans began talking to sympathetic railroad officials who wanted the law overturned for their own financial reasons. It would not do if their test passenger was merely excluded from boarding or even thrown off the train; he would have to be arrested so that a real case existed and he could claim injury in federal court. One railway informed him that it did not enforce the law, while another said that though it opposed the statute as too costly, it did not want to go against it publicly. Then the Louisville & Nashville line agreed to a test case. As it happened, for reasons neither Martinet nor Tourgée expected, their test case fizzled.
On February 24, 1892, the twenty-one-year-old Daniel Desdunes purchased a first-class ticket on the Louisville & Nashville from New Orleans to Mobile, Alabama, and took a seat in the whites-only car. He was arrested according to the plan, and charged with a criminal violation of the Separate Car Act. Tourgée, Martinet, and the local attorney, James Walker, filed a “plea of jurisdiction,” arguing that since Desdunes was a passenger in interstate commerce, he had the right and privilege to travel free from any governmental regulation save that of the Congress. Tourgée also introduced his claim that the determination of race was a complex question of both science and law, and so could not be delegated to a train official. The lawyers assumed that their plea would be denied, Desdunes would be convicted, and then they would appeal. Then, on April 19, 1892, the presiding judge, Robert Marr, suddenly disappeared, and no one knew what had happened to him.
While Desdunes’s attorney tried to figure out what to do next, on May 25 the Louisiana Supreme Court handed down its decision in Louisiana ex rel. Abbott v. Hicks. A train conductor on the Texas and Pacific Railway had been prosecuted for seating a black passenger in a white car, and the railway argued that since the passenger was traveling between two states, either the Louisiana law did not apply to interstate travel or, if it did, then it was unconstitutional under the commerce clause. Much to everyone’s surprise, the Louisiana high court agreed that regulations of the Separate Car Act could not apply to interstate passengers. Given this development, the new judge in Desdunes’s case, John Ferguson, dismissed the case, and Martinet could not have been happier. “Reactionists may foam at the mouth,” he trumpeted in the Crusader, “but Jim Crow is as dead as a door nail.”
Martinet, of course, knew that the Abbott case did not apply to intrastate commerce, that is, travel entirely within the borders of Louisiana, and he and Tourgée began looking for another light-skinned black man to test the law. They found Homer Adolphe Plessy, a shoemaker, a friend of Desdunes’s father, and a member of the citizens’ committee. Thirty years old at the time, Plessy had already become well-known in the Creole community for his work in several local community betterment groups. Born to gens de couleur, Plessy’s grandfather, a white Frenchman from Bordeaux, had come to New Orleans after the slave revolt in Haiti in the 1790s. Germaine Plessy married a free mulatto named Catherine Mathieu, and they had eight children, including Homer’s father, Adolphe.
The Plessys were an artisan family, and all of the children spoke both English and French. Adolphe was a carpenter, and had he not died when Homer was five, the young Plessy might well have followed him in that trade. Three years after Adolphe’s death, his widow Rosa married Victor M. Dupart, a post office clerk from a family of shoemakers. Young Homer chose to follow his stepfather’s family and learn the shoemaking trade.
The Dupart family was also involved in a number of benevolent, religious, and social societies in the New Orleans Creole community. Victor had been an active member of the Unification Movement, a civil rights group formed in the 1870s. The group worked across racial lines seeking political equality for all and an end to discrimination, and this commitment influenced Homer. It also led to his acceptance in such socially prominent Creole groups as the Société des Francs-Amis (Society of French Friends), a Creole organization that had existed in New Orleans since the early nineteenth century and that provided medical and funeral expenses for its members.
His first venture into social activism had been in 1887, when he became involved in education reform as vice president of the Justice, Protective, Educational, and Social Club. The group had unsuccessfully challenged the segregation of Orleans Parish public schools, despite a provision in the Louisiana state constitution that prohibited the establishment of separate schools on the basis of race. Because so many of the city’s wealthier white families sent their children to one of nearly 200 private schools, the public schools were beset with financial difficulties and many black children just dropped out and wandered the streets. The Social Club committed its resources to establishing a library and trying to ensure good teachers for the black schools.
Like many of the gens du couleur, Plessy could easily have passed for white, and he described himself as “seven-eighths Caucasian and one-eighth African blood,” which nonetheless made him colored under the terms of the Separate Car Act. But he and other light-complected Creoles chose not to turn their backs on their African ancestry, and tried to protect the rights they believed the Fourteenth Amendment had given them.
After the Committee to Test the Constitutionality of the Separate Car Act had posted a $500 bond so Plessy could be released, the legal maneuvers began. Plessy was not arraigned until October 1892, four months after his arrest, and interestingly the information (a form of indictment) did not include any reference to his race. Once again the trio of attorneys—Martinet, Walker, and Tourgée—entered a plea claiming the act was unconstitutional and therefore the court did not have jurisdiction to hear or determine the facts. And again they claimed that the matter of race, both as to fact and to law, was too complicated to permit the legislature to assign this determination to a railway conductor. They then got to the heart of the matter, the question they would argue on up to the U.S. Supreme Court:
[The Act] establishes an insidious destinction [sic] and discriminates between citizens of the United States based on race which is obnoxious to the fundamental principles of national citizenship, perpetuates involuntary servitude as regards citizens of the colored race . . . and abridges the privileges and immunities of citizens of the United States and rights secured in the XIIIth and XIVth amendments.
After some jockeying among the lawyers, Judge Ferguson agreed with the district attorney that the defense had not established any basis to deny the legitimacy of the act. Plessy’s lawyers immediately appealed this ruling to the state supreme court, effectively stopping the trial until that court ruled. In Ex parte Plessy (1893) the Louisiana Supreme Court held that the Separate Car Act did not violate either the Thirteenth or the Fourteenth Amendment. Citing the Civil Rights Cases, Justice Charles Fenner concluded that the law did not implicate rights guaranteed by the Thirteenth Amendment, since segregation in public facilities did not, in the court’s view, constitute a badge (symbol) or an incident of slavery. The sole question at hand, according to Fenner, was whether the law violated some part of the Fourteenth Amendment, and it did not. Restricting passengers to accommodations on the basis of race rested on a well-established principle “that, in such matters, equality, and not identity or community, of accommodations is the extreme test of conformity to the requirements of the Amendment.” Neither racially segregated schools nor racially separated facilities violated the equal protection clause even if motivated by some animus, because law did not involve itself in how people felt about persons of a different color or in how race affected social structure. The Separate Car Act was a reasonable exercise of the legislature’s policy-making discretion.
The next step would have been an appeal to the federal courts, but Tourgée worried that the makeup of the Supreme Court did not bode well for them. “Of the whole number of Justices,” he wrote Martinet, “there is but one who is known to favor the view we must stand on. . . . [Another four would] probably stay where they are until Gabriel blows his horn.” That left four who might be persuaded, and Tourgée hoped that with the passage of time one or more of the diehards would be replaced by a justice favorable to their cause. But time did not prove helpful. Between the filing of the initial writ of appeal in 1893 and oral argument in Washington in April 1896, both the general climate and the attitude of the Court hardened. Throughout the country, but especially in the South, conditions for blacks deteriorated.
On April 13, 1896, the Supreme Court heard arguments in Plessy v. Ferguson. Tourgée, in his brief, began with the claim that because the reputation of being white had considerable economic as well as social and political value, allowing a train employee to arbitrarily determine that a passenger was or was not white violated the constitutional guarantee against the taking of property without due process of law. He went on to describe why being white in the United States was so important and so valuable in terms of occupations open to whites, and the amount of property held by white people, and declared that being white “is the most valuable sort of property, being the master-key that unlocks the golden door of opportunity.”
Because the statute also involved the loss of freedom as well as property, it had to rest on the certainty of racial classification, but as he had repeatedly claimed in the lower courts, that determination involved complex questions of law and science. One could not, he claimed, be at all certain in determining race, since over many generations there had been “race-intermixture” so that for great numbers of citizens “the preponderance of the blood of one race or another” was impossible to ascertain.
In the end, he argued, the law had failed to come up with a just standard. In many states even one drop of black blood caused that person to be counted as colored. “Why not count everyone as white in whom is visible any trace of white blood? There is but one reason to wit, the domination of the white race.” Altogether, Tourgée listed some nineteen reasons why the Court should hold the Louisiana law unconstitutional, but all of them boiled down to the same basic claim: treating black people separately, forcing them to sit apart, violated both the spirit and the letter of the Fourteenth Amendment by depriving them of equal protection, due process, and the rights and immunities that citizens should enjoy. These clauses gave Homer Plessy affirmative rights, that is, they not only protected him against arbitrary state action but gave him the right to travel and to be treated with the same respect accorded to all citizens. “Justice is pictured as blind,” he told the justices, “and her daughter the Law ought at least to be color-blind.”
The brief filed by Louisiana attorney general Milton Cunningham essentially followed the arguments submitted to the state supreme court by Lionel Adams, the prosecutor who had handled the Plessy arraignment in Judge Ferguson’s court. But Cunningham added a copy of the decision in that case, claiming that because of the short notice he had received he had not had time to prepare a new brief, but that the Louisiana court had answered all of the arguments raised by Plessy’s lawyers. He also cited the Civil Rights Cases to deny any claim that somehow segregation by race violated the Thirteenth Amendment.
On May 18, 1896, five weeks after oral argument, the Court handed down its ruling, voting 7–1 to uphold the Louisiana law. (Justice David Brewer had been absent for the oral argument and so did not take part in the decision.) Only John Marshall Harlan dissented.
Justice Henry Billings Brown wrote the majority opinion, and it has distorted his historical portrait much as Dred Scott distorted that of Roger Taney. From our viewpoint, of course, the opinion reeks of racism and in essence told the South it could treat blacks pretty much as it pleased, as long as it provided equal facilities, even though separate. The decision does have these characteristics, but there is much more. Brown believed strongly in states’ rights, and thought that in those provinces where the states had primary responsibility they should be free to act. A few years earlier he had written the majority decision in Lawton v. Steele (1894) upholding New York state’s exercise of its police powers to control fishing on Lake Ontario, and progressives applauded him when he wrote the decision in Holden v. Hardy (1898), confirming Utah’s power to regulate the hours of men working in mines. We can accuse Brown of insensitivity, but in terms of his judicial philosophy he was consistent; matters belonging to the states should be left to the policy judgments of the states themselves.
Brown made short work of Tourgée’s claim that determining race was far beyond the technical ability of a train conductor. While the statute obviously gave the conductor the authority to make assignments by race, in this case no deprivation of due process occurred because the question of Plessy’s race did not “properly arise on the record.” The effort by his attorneys in the Supreme Court to make racial determination appear so complex had backfired because they had deliberately not mentioned Plessy’s race at the trial court level. One could claim a lack of due process in reviewing an incorrect classification, since that claim had not been raised at the trial.
The reasoning is, of course, a bit disingenuous because everyone knew the whole case revolved around classifying Homer Plessy as white or black. The information against him had indicated that he had been assigned “to the coach used for the race to which he belonged,” and the affidavit from Detective Cain described Plessy as “a passenger of the colored race.” Plessy’s race may not have been so identified in the formal record, but it permeated the case from the initial arrest. (On the other hand, a fact Tourgée carefully avoided, the conductor had not had to make a guess; he had asked Plessy his race, and Plessy had told him he was colored.) Brown did concede that racial reputation constituted a property interest, and had Plessy in fact been white and been forced to sit in the colored coach, the law allowed him to sue the train company for damages.
The crux of the opinion, and the only part that either party cared about, was the constitutionality of legally required separation on the basis of race. By the time of Brown v. Board of Education (1954), both the law and the preponderance of public opinion saw segregation as not only unlawful but also designed to categorize blacks as an inferior race. In 1896, however, that was far from the case. Although the Fourteenth Amendment had been intended to establish an absolute equality of all citizens of any color before the law, Brown asserted, “in the nature of things it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political, equality, or a commingling of the two races unsatisfactory to either.” The Court considered racial separation by itself to be far different from racial subordination:
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 the 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. The argument necessarily assumes that if, as has been more than once the case, the colored race should become the dominant power in the state legislature, and should act in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation. . . . But legislation is powerless to eradicate racial instincts, or to abolish distinctions based on physical differences.
Although Brown’s opinion has often been cited as the basis for the phrase “separate but equal,” those words do not appear in the opinion. The Louisiana Separate Car Act, like most state segregation statutes, required equal facilities in order to claim the constitutional fig leaf that the law did not violate the equal protection clause.
The lone dissent, by John Marshall Harlan, who had also dissented in the Civil Rights Cases, soon achieved mythic status, and he minced no words in rebutting Brown’s assertions that the law did not harm those it relegated to separate facilities. “The Constitution does not permit any public authority to know the race of those entitled to be protected.” Where Brown had said that all the law did was impose a minor distinction based on race, Harlan declared, “Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored persons from coaches occupied by or assigned to white persons.” The alleged provision of equal accommodations aimed at keeping blacks separate, and this ran directly counter to the constitutional promise that all citizens be treated alike.
The state could not argue the reasonableness of this required separation, since if this could be allowed, then the state could compel blacks and whites to walk on opposite sides of the street, require them to sit in different parts of a courtroom, and even segregate “native and naturalized citizens . . . or Protestants and Roman Catholics.” Ironically, at least one of these hypotheticals became public policy in nearly all Southern states, with blacks not only required to sit either in the back of a courtroom or in the balcony but also to use a separate Bible when sworn in as witnesses.
Harlan understood the larger issue involved:
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, 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 the 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.
It was not a question of social equality, as Brown had asserted, but of civil rights. In a phrase that would be taken up and validated six decades in the future, he condemned legal segregation of the races as a “badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.”
Finally, to illustrate what he considered the absurdity of the law, he noted that there existed a race of men “so different from our own” that Congress did not permit them to become citizens. But under the Louisiana statute a “Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race who have all the legal rights that belong to white citizens are yet declared to be criminals if they ride in a public coach occupied by citizens of the white race.”
The majority opinion not only was mistaken, Harlan declared, but “will in time prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.” The common government of all, he warned, should “not permit the seeds of race hate to be planted under the sanction of law.”
Harlan’s plea that the “Constitution is color-blind” (a phrase taken from Tourgée’s brief for Plessy) fell on deaf ears, not only within the Court but in the country as well. Southern newspapers, of course, approved of the decision, while the black press denounced it. But the surest sign of the changing temper of the country was that where there had been a vociferous protest in the North over the Civil Rights Cases thirteen years earlier, the Plessy decision caused hardly a ripple. Not only was the response to the decision muted, but the case practically disappeared from the law books for the next half-century. It did not appear in any of the major constitutional law textbooks, or if it did, as only a footnote. Not until the National Association for the Advancement of Colored People began its attack on segregation in the 1940s did the Plessy doctrine come under close scrutiny.
In part this is due to the fact that the case really did not change anything at the time. The case affirmed a growing practice and gave it legitimacy. As one historian noted, “what followed Plessy then looked considerably like what preceded it.” Segregation on public transportation had begun in 1887, and given the racial attitudes of the country at the time, few people expected the Court to try to stop it. The case did, however, give the green light to Southern states to expand the doctrine of segregation, and between 1896 and 1920, Jim Crow—the legal and systematic segregation of the races—triumphed throughout the former slave states. Signs marked “Whites Only” and “Colored” showed up everywhere—in theaters, restaurants, railroad cars, boardinghouses, and even over water fountains. South Carolina prohibited blacks and whites from working together in the same room in textile plants, and from using the same entryways, exits, or lavatories. Mississippi established segregation in hospitals, a practice soon adopted elsewhere, and even forbade white nurses from attending black patients.
Hundreds of Jim Crow laws existed on the books, but the laws themselves do not provide an adequate gauge of the extent of segregation, the harshness with which it was enforced, or the overall racial discrimination in the South. The laws established minimal requirements; in practice, segregation normally went well beyond what the statutes required. Institutionalized and legally enforced segregation bred hatred and distrust among both whites and blacks—just as Harlan had warned—attitudes that would not easily break down even after the Supreme Court reversed itself and declared segregation unconstitutional in 1954.
Shortly after the high court decided the case, Homer Plessy reported to Judge Ferguson’s court to answer the charge of violating the Separate Car Act. He changed his plea to guilty, and paid the $25 fine. For the rest of his life, until he died in 1925, Plessy lived quietly in New Orleans, working as a laborer, warehouseman, and clerk. In 1910 he became a collector for a black-owned insurance company, and continued to be active in the African American community’s benevolent and social organizations, such as the Société des Francs-Amis and the Cosmopolitan Mutual Aid Association. Upon his death he was buried in his mother’s family tomb in the city’s St. Louis Cemetery Number 1, and his obituary merely identified him as the “beloved husband of Louise Bordenave.”
Justice Harlan died in October 1911, and in an article commemorating his friend and colleague, Justice Brown spoke about Harlan’s dissenting opinion in Plessy. Brown conceded that perhaps Harlan had been right, and that the purpose of the law had been not just segregation of the races but subordination of black people.
Brown v. Board of Education, 347 U.S. 483 (1954)
Civil Rights Cases, 109 U.S. 3 (1883)
Ex parte Plessy, 45 La. Ann. 80 (1893)
Hall v. DeCuir, 95 U.S. 485 (1878)
Holden v. Hardy, 169 U.S. 366 (1898)
Lawton v. Steele, 152 U.S. 133 (1894)
Louisiana ex rel. Abbott v. Hicks, 44 La. Ann. 770 (1892)
Louisville, New Orleans & Texas Railway v. Mississippi, 133 U.S. 587 (1890) Munn v. Illinois, 94 U.S. 113 (1877)
Plessy v. Ferguson, 163 U.S. 537 (1896)
The best single book on the case remains Charles A. Lofgren, The Plessy Case: A Legal and Historical Interpretation (1988), but one should also see Thomas Brook, ed., Plessy v. Ferguson: A Brief History with Documents (1996). For Tourgée see Mark Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (2006). Treatment of the former slaves after the Civil War is explored in William Gillette, Retreat from Reconstruction, 1869–1879 (1979). The starting point for a discussion of segregation is C. Vann Woodward’s classic, The Strange Career of Jim Crow, which first appeared in 1955. The legal expansion of segregation can be traced in Pauli Murray, State Laws on Race and Color (1952). The story can be picked up in the works cited in connection with Brown v. Board of Education (ch. 18).