Supreme Court rules in Plessy v. Ferguson

Supreme Court rules in Plessy v. Ferguson


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In a major victory for supporters of racial segregation, the U.S. Supreme Court rules seven to one that a Louisiana law providing for “equal but separate accommodations for the white and colored races” on its railroad cars is constitutional. The high court held that as long as equal accommodations were provided, segregation was not discrimination and thus did not deprive African Americans of equal protection under the law as guaranteed by the 14th Amendment.

The Plessy v. Ferguson ruling, which indicated that the federal government would officially tolerate the “separate but equal” doctrine, was eventually used to justify segregating all public facilities, including railroad cars, restaurants, hospitals, and schools. However, “colored” facilities were never equal to their white counterparts in actuality, and African Americans suffered through decades of debilitating discrimination in the South and elsewhere because of the ruling. In 1954, Plessy v. Ferguson was struck down by the Supreme Court in their unanimous ruling in Brown v. Board of Education of Topeka.

READ MORE: Civil Rights Movement Timeline


The Supreme Court Justice Who Made History By Voting No on Racial Segregation

The old saying holds that history is written by the winners.

A new book explores the life of U.S. Supreme Court Justice John Marshall Harlan, who, through his writing, made history even though he lost. Harlan was on the court in 1896 when it endorsed racial segregation in Plessy v. Ferguson and was the lone justice who voted no. He wrote the only dissenting opinion.

"His dissent was largely invisible in the white community, but it was read aloud in Black churches. It was published in Black newspapers. This was the one link of hope that white people might support them and see the law through their eyes," said Peter Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero, in an interview on Morning Edition.

It took generations, but eventually the dissenter won. The court ruled differently in 1954.

Harlan, a white man from Kentucky, grew up before the Civil War in a family that enslaved people.

"One of the great mysteries of Harlan's career is that he grew up in such a family and yet became the leading defender of Black rights of his generation," Canellos. Part of the reason might have been a Black man who grew up with him, widely believed to have been his half-brother.

Interview Highlights

On Harlan writing dissents during the era of Jim Crowe

That's what's striking about it. I think the court of that period has gotten way too little attention in history because it was responsible, essentially, for segregation and clearing the way for segregation. That court . ruled against civil rights, it ruled against voting rights for African Americans. In Plessy v. Ferguson it approved the legal architecture of segregation. As Harlan predicted in his dissent in Plessy v. Ferguson, it consigned the nation to hundreds of years of racial strife. He says in that dissent, what can more surely sow the seeds of racial discord than a system under the law that creates two separate systems of rights, one for Blacks and one for whites?

On how Harlan and the court's majority could find support in the Constitution and law to bolster very different conclusions regarding separate but equal

I think it's not too mysterious. I hate to say it, but I think notions of white supremacy, prejudice and &mdash frankly &mdash expediency are very visible in the majority opinion of Plessy v. Ferguson. You go back in these cases and you try to say, well, could this be an issue in which reasonable jurists might disagree? And the answer essentially is no in Plessy v. Ferguson. The majority opinion is an abomination. The key line in the majority opinion says this is a law that was specifically enacted to put Black people in a separate [train] carriage, and they said if there's any stigma here it's because Black people themselves are putting that construction on it. Harlan's dissent, which was forceful, essentially called their bluff on everything. He noted the plain language of the Constitution, which said equal protection under law in the 14th amendment is the law of the land. And Harlan didn't just call them out on the law. He issued kind of a manifesto that went to the real heart and soul of what the law is and what the Constitution means in this country. And I think his dissent in Plessy v. Ferguson is one of the great documents in American history.


Plessy v. Ferguson at 125

Kenneth Mack of Harvard Law School and Meira Levinson of Harvard Graduate School of Education discuss the legal regime established by Plessy v. Ferguson and its overthrow by Brown v. Board of Education.

In 1892, on a steamy spring day in New Orleans, Louisiana, a man &mdash a shoemaker by trade &mdash stepped onto a train bound for Covington, a small village due north on the Bogue Falaya River, which empties into Lake Pontchartrain. First-class ticket in hand, he found a seat in the &lsquowhites-only&rsquo passenger car and waited. When the conductor finally came around, the man &mdash born Homère Adolphe Plessy &mdash refused to move to another car, despite being multiracial. Now he was in violation of Louisiana&rsquos new Separate Car Act, which required &ldquoequal but separate accommodations for the white and colored races.&rdquo An onboard detective arrested Homer, as he was also known, and he spent several hours in jail before being released on bond pending trial.

Plessy&rsquos case went all the way to the Supreme Court of the United States. On May 18, 1896, Justice Henry Billings Brown, writing for the Court&rsquos majority, concluded that, although the 14th Amendment had established citizenship rights for Black Americans, it &ldquocould 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.&rdquo

If African Americans felt that being separated by race was intended to humiliate or degrade them, Justice Brown wrote, &ldquoit is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.&rdquo The Court went on to reject Plessy&rsquos claim that the act violated his constitutional rights &mdash and affirmed the state&rsquos power to enforce racial segregation so long as accommodations were &ldquoseparate but equal,&rdquo in the infamous phrasing of Justice John Marshall Harlan&rsquos lone dissent.

The decision, which would not be overturned until 1954 in the landmark case Brown v. Board of Education of Topeka, placed a seal of approval on the segregationist laws that began to spread across the country.

One hundred and twenty five years after the Supreme Court&rsquos decision in Plessy v. Ferguson, Kenneth Mack &rsquo91, Lawrence D. Biele Professor of Law at Harvard Law School, says there are still lessons to be gleaned from the case: Lessons about the radical and influential strategies employed by Plessy&rsquos team in seeking justice, about the persistence and dedication of activists, and about how &ldquosegregation can be rationalized as something neutral,&rdquo even today.

To understand Plessy, it is first important to understand what it is not. Plessy was not, says Mack, the origin of &ldquoseparate but equal.&rdquo Instead, it was merely the Supreme Court&rsquos validation of the concept &mdash &ldquothe final capitulation of the federal government in the creation of Jim Crow,&rdquo he says.


PLESSY v. FERGUSON.

This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-e ghths Caucasian and one-eighth African blood that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit that he was in any sense or in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948) whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.

A. W. Tourgee and S. F. Phillips, for plaintiff in error.

Alex. Porter Morse, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts 'that 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: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.' The fourth section is immaterial.

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood that the mixture of colored blood was not discernible in him and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except § a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,—a state of bondage the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value and that the fourteenth amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

The object of the amendment was undoubtedly to enforce 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 distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. 'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.' It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210 Lehew v. Brummell (Mo. Sup.) 15 S. W. 765 Ward v. Flood, 48 Cal. 36 Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361 People v. Gallagher, 93 N. Y. 438 Cory v. Carter, 48 Ind. 337 Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U. S. 313 Neal v. Delaware, 103 U. S. 370 ush v. Com., 107 U. S. 110, 1 Sup. Ct. 625 Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspe t from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. 'If it be a matter,' said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate passengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.'

A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U. S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209 Day v. Owen 5 Mich. 520 Railway Co. v. Williams, 55 Ill. 185 Railroad Co. v. Wells, 85 Tenn. 613 4 S. W. 5 Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5 The Sue, 22 Fed. 843 Logwood v. Railroad Co., 23 Fed. 318 McGuinn v. Forbes, 37 Fed. 639 People v. King (N. Y. App.) 18 N. E. 245 Houck v. Railway Co., 38 Fed. 226 Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police 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. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct. Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538 Capen v. Foster, 12 Pick. 485 State v. Baker, 38 Wis. 71 Monroe v. Collins, 17 Ohio St. 665 Hulseman v. Rems, 41 Pa. St. 396 Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the u derlying 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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law 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, 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 upon 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. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1) others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354 Monroe v. Collins, 17 Ohio St. 665) and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406 Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, '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.' Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act.

Only 'nurses attending children of the other race' are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act 'white and colored races' necessarily include all citizens of the United States of both races residing in that state. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise 'of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.' Mr. Justice Strong, delivering the judgment of this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: 'That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?' So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: 'Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state.' So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.' 'It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation but it is in trust for the public.'

In respect of civil r ghts, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure 'to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy.' They declared, in legal effect, this court has further said, 'that the law in the states shall be the same for the black as for the white that all persons, whether colored or white, shall stand equal before the laws of the states and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.' We also said: 'The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy and discriminations which are steps towards reducing them to the condition of a subject race.' It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race, however well qualified in other respects to dischar e the duties of jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307 Virginia v. Rives, Id. 313 Ex parte Virginia, Id. 339 Neal v. Delaware, 103 U. S. 370, 386 Bush v. Com., 107 U. S. 110, 116, 1 Sup. Ct. 625. At the present term, referring to the previous adjudications, this court declared that 'underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law.' Gibson v. State, 162 U. S. 565, 16 Sup. Ct. 904.

The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. 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 people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. 'Personal liberty,' it has been well said, 'consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.' 1 Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the la . Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

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 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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the spreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word 'citizens' in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States that, at time of the adoption of the constitution, they were 'considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.' 17 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race,—a superior class of citizens,—which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. 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. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a 'partition' when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a 'partition,' and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the 'partition' used in the court room happens to be stationary, provision could be made for screens with openings through which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them, are wholly inapplicable, because rendered prior to the adoption of the last amendments of the constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery when it would not have been safe to do justice to the black man and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing ere, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the 'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.


Dissenting opinion

In his lone dissenting opinion, which would become a classic of American civil rights jurisprudence, Associate Justice John Marshall Harlan insisted that the court had ignored the obvious purpose of the Separate Car Act, which was, “under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.” Because it presupposed—and was universally understood to presuppose—the inferiority of African Americans, the act imposed a badge of servitude upon them in violation of the Thirteenth Amendment, according to Harlan. The effect of the law, he argued, was to interfere with the personal liberty and freedom of movement of both African Americans and whites. Because it thus attempted to regulate the civil rights of citizens on the arbitrary basis of their race, the act was repugnant to the principle of legal equality underlying the Fourteenth Amendment’s equal-protection clause. “Our Constitution is color-blind,” Harlan wrote,

and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.


Supreme Court rules in Plessy v. Ferguson

In a major victory for supporters of racial segregation, the U.S. Supreme Court rules seven to one that a Louisiana law providing for “equal but separate accommodations for the white and colored races” on its railroad cars is constitutional. The high court held that as long as equal accommodations were provided, segregation was not discrimination and thus did not deprive African Americans of equal protection under the law as guaranteed by the 14th Amendment.

The Plessy v. Ferguson ruling, which indicated that the federal government would officially tolerate the “separate but equal” doctrine, was eventually used to justify segregating all public facilities, including railroad cars, restaurants, hospitals, and schools. However, “colored” facilities were never equal to their white counterparts in actuality, and African Americans suffered through decades of debilitating discrimination in the South and elsewhere because of the ruling. In 1954, Plessy v. Ferguson was struck down by the Supreme Court in their unanimous ruling in Brown v. Board of Education of Topeka.


The Brown decision was a landmark because it overturned the legal policies established by the Plessy v. Ferguson decision that legalized the practices of “separate but equal”. In the Plessy decision, the 14th Amendment was interpreted in such a way that equality in the law could be met through segregated facilities. Jim Crow laws were passed throughout the South and they established separate facilities for Blacks and Whites in everything from schools to restrooms, drinking fountains to witness stands in courtrooms.

For many years, the Civil Rights movement during the first 50 years of the 20th Century accepted this policy of “ separate but equal” in its struggle for access into the society. It fought in many communities for equal pay for teachers and for equal school facilities. It fought for equal libraries, recreational facilities, and health services. Plessy defined the terms of the struggle.

The Brown decision came about after a series of Supreme Court decisions on specific educational challenges. The first was that universities must admit Blacks to graduate facilities if a desired course of study was not available in a Black institution. Then in Sipuel v. Board of Regents of the University of Oklahoma, in 1948, the Court ruled that Blacks must be admitted to state universities because they offered many opportunities not available in Black institutions. In 1950 in Sweatt v. Painter, the Court ruled that a separate Black law school, established for Sweatt after he sued for admission to the University of Texas Law School, was unequal not only in physical facilities and curriculum but in reputation and opportunity for stimulating professional contact. In Laurin v. Oklahoma State Regents, also in 1950, the Court ruled that the state violated the “separate but equal” doctrine when it required isolated cafeteria and classroom seating for Black students because it produced unequal educational opportunity.

The Brown decision established that separate schools were ipso facto unequal. It allowed proponents for better opportunities for Blacks to fight for positive gains and full equality. But the fact that there were few means to implement these decisions became clear as it became obvious that few gains were being seen by 1960, the year that a new student Civil Rights movement was founded.

Immediately after the Brown decision, many attempts were made to begin desegregation. NAACP chapters encouraged Black parents to sent their children to “White” schools, and there had been retaliation against those who did. There had also been three mass marches on Washington on the school issue. On May 18, 1957, the anniversary of the Brown decision, about 35,000 attended a prayer pilgrimage for integrated schools sponsored by both northern and southern civil rights leaders, a first joint effort. In 1959, 400,000 signatures were presented to Congressman Charles Diggs petitioning the President and Congress for a program to insure the orderly and speedy integration of schools.

The legal struggle for integrated schools dragged on in the years following the Brown decision. Southern school boards and state governments brought suit after suit challenging it and the created a variety of ways to get around the intent of the decision. In those few localities where there was at least minimum compliance, intimidation and violence were used to keep the White schools White.

Nevertheless, the Brown decision did provide a setting for major confrontations between the federal government and the states, and between the Black and White populations of several Southern cities. Anthony Lewis, a reporter for the New York Times , in a study of school desegregation, pointed out that there were rapid steps taken toward desegregation in Kansas, Arizona, Washington, D.C. and Baltimore. In 1954, 1955, and 1956 hundreds of school districts began to abandon racially segregated school classes. But then reaction seemed to set in and most Southern political leaders began to take defensive positions.

There were many examples of this reaction. In Clinton, Tennessee, the school board and other White citizens faced down a mod in 1956. The high school was bombed in 1958. In 1956 the presence of Autherine Lucy set off rioting at the University of Alabama so the University officials asked her to withdraw. The federal government did not respond to the University’s request for aid. In 1962, James Meredith entered the University of Mississippi despite serious rioting. In this case President Kennedy had sent in federal troops. This event was publicized throughout the world. Another shocking reaction was that of Prince Edward County. There, the public schools were closed down for 5 years, from 1959 to 1964. This county in Virginia closed their schools rather than desegregating them. The schools were not reopened until the Supreme Court ruled that they had to be reopened. 1700 Black school children had no schooling from 1959 until 1963 when a Free School was opened. It remained open until June, 1964, when the county was forced to operate public schools again.

Little Rock, Arkansas, was the site of a confrontation of major significance to the future of changing racial attitudes. The whole world read about the 15 year old Black child who was turned away from the Little Rock Central High School by the National Guardsmen into a mob of screaming White people. They were screaming, “Lynch her, lynch her!”

This short history raises some important questions for Americans still today. Our schools are still by and large not integrated—and probably not even desegregated. All over America people are calling for “quality” education and “neighborhood schools” rather than for forced integration. Today few people say that “separate but equal” is legally acceptable but de facto segregation has again become a reality.

Objectives
I have five objectives for this unit.

The first objective is to show students that racial issues can be discussed openly. By giving them exposure to an historical approach to the crucial aspect of American life, I want them to learn to articulate their ideas and share them in class.

The second objective is to show students how decisions made by the Supreme Court on the constitutionality of lower court decisions can directly influence people’s lives.

The third objective is to teach students that historical times shape people’s ideas and behavior.

The fourth objective is to teach students how to use primary sources for understanding history.

The fifth objective is to expose students to the methods used to shape legal thinking and argumentation.

Strategies
Primary sources will be used extensively in this class. Understanding them and interpreting their meaning in different historical contexts will help students see how history shapes thinking and influences people’s lives. Each week one primary source will be read, summarized and discussed in class. Background information will be added through readings from a text book, These United States , and from lectures in class. Each Friday there will be a quiz given and students will be asked to interpret the significance of the primary source. During the final week, the students will be asked to take a position on a topic which had been discussed in class and present their argument to the class orally and in essay form. Here is an outline of the weeks:

Week 1: The 14th Amendment

Week 2: Plessy v. Ferguson and Justice Harlan’s Dissent

Week 3: Living with Jim Crow: Richard Wright Remembers

Week 4: Brown v. Board of Education of Topeka, Kansas

Week 5: Working for Desegregated Schools: Daisy Bates and Robert Coles

Week 6: Busing and Forced Desegregation: I Believe

Week 1: The 14th Amendment

This week’s work will focus around reading and understanding the 14th Amendment to the Constitution of the United States. In this amendment, all citizens of the United States, either by birth or naturalization, are assured equal protection of the law . No person can hold office if they have engaged in a rebellion against the federal government. The government is not responsible for debts accrued by state governments during a rebellion—this includes the costs involved in the loss of emancipated slaves. It is also clearly stated that the Congress shall have the power to enforce this amendment by appropriate legislation.

We will also look into the distinctions made between the three post-Civil War Amendments. While the 13th abolished slavery and the 15th established the right to suffrage, it was the 14th which was to guarantee civil rights. The stipulations of section 1 of the 14th Amendment left much of the jurisdictional issues vague as to the limits of federal and state laws. (So for example, it was not until the Civil Rights Act of 1964 that housing was brought under the jurisdiction of this amendment.)

This amendment consolidated the power of the radical Republicans in the South. By protecting the rights of Black Americans they hoped to keep them loyal to the Republican Party and the newly formed federal government. However, the amendment has been interpreted in contradictory ways—to legislate both segregation and integration. By granting Blacks and Whites equality in the eyes of the law, the 14th Amendment undermined the Black Codes in the South passed during reconstruction and reasserted the right of the federal government to intercede if states blocked their rights.

The signing of the 14th Amendment became a requirement for reentry into the Union after the Civil War. It consolidated the power of the Northern states and the Republicans. But their power was soon undermined as the southern states started passing new segregation laws and the advent of Jim Crow policies again denied Blacks equal rights and opportunities.

Students will also be assigned readings in the school American History textbook for background information on this.

Week 1: Assignments

In class Homework
Monday: Introduction to Course Read Text:
Time Line These United States , pp.
30-352. Define terms
Tuesday: Discuss Readings Read Constitution and
Review Definitions 14th Amendment
Wednesday: Discuss Write summary of 14th
Constitution and Amendment
Supreme Court
Thursday: Read summaries Review Week
Friday: Quiz and in class essay

Major Discussion Topics:

Week 2: Plessy v. Ferguson and Justice Harlan’s Dissent

On July 19, 1890, the Louisiana General Assembly passed an act that provided equal but separate accommodations for each race for the comfort of all the passengers. The law was denounced by the American Citizen’s Equal Rights Association of Louisiana Against Class Legislation. This group of well-to-do Blacks raised money and challenged the constitutionality of the law. But it was not until Adolph Plessy entered a train and sat in a “For Whites” car that a test case was brought to the Supreme Court. The presiding Judge, Judge Ferguson, of the Criminal District Court of New Orleans found the law constitutional as did the Louisiana Supreme Court. The case was heard in the Supreme Court in 1896. During this period many new Jim Crow laws had been passed throughout the South. Alabama, Arkansas, Georgia, and Tennessee passed laws requiring railroads to separate the races. Mississippi and South Carolina already denied the vote to Blacks and many other states were preparing to take the same steps.

There were real differences of opinion within the Black community over these rulings. On one side were those Blacks who felt that they must adjust to the growing sentiment against their civil rights by developing the economic standing of Blacks before working for equal rights. So Booker T. Washington delivered a speech at the Atlanta Exposition in 1895 stating: “In all things that are purely social, we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress. The opportunity to earn a dollar in a factory just now is worth infinitely more than the opportunity to spend a dollar in an opera house.” He urged Blacks to become experts in various economic positions so that the Black man could win a place in the White man’s world.

On the other hand, W.E.B. DuBois argued for full, legal equality immediately. He felt that Washington’s position relocated Blacks to half manhood—a worker with no civil rights. Thus he led the Niagra Movement which declared, “We want full manhood suffrage and we want it now.” This organization grew into the National Association for the Advancement of Colored Peoples (NAACP), the organization which led the struggle against segregated schools and for civil rights for Blacks.

Seven Justices ruled against Plessy, but one, Justice Harlan, dissented. He asserted that justice should be color blind and that the enforcement of “separate but equal” interferes with the personal freedoms of individuals by legally forcing separation. As he stated, “Sixty million whites are in no danger from the presence of eight millions of Blacks. . .The destinies of the two races in this country are indissolubly linked together, and the interest 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.” He foresaw that the decision would lead to a pattern of behavior which would be very dangerous and undermine a basic sense of justice.

Week 2: Assignments

In class Homework
Monday: Review Friday’s Quiz Read Plessy v. Ferguson
and Harlan’s Dissent
Tuesday: Discuss decision and Write summary of each
dissent, and the events document
leading up to each
Wednesday: Read summaries in Rewrite and correct
class.
Thursday: See movie on life in Write reaction to
segregated South movie
Friday: Quiz

Major Discussion Topics:

Week 3: Living with Jim Crow

The second reading is an excerpt from Richard Wright’s Uncle Tom’s Children . In “The Ethics of Living Jim Crow”, Wright describes how he learned to live with the double standards implied by “separate but equal.” Out of fear for her son’s life, Richard’s mother beats him for standing up to White children. He learned the same lesson when he tried to assert his rights on his job—he wanted to learn information which certain White workers felt was not his place to learn. This autobiographical sketch is an excellent introduction to the consequences of Jim Crow legislation and attitudes.

Week 3:Assignments

In class Homework
Monday: Review Friday’s Quiz Read Woodward, The
Strange Career of Jim Crow
Tuesday: Discuss reading Answer questions on Woodward
Wednesday: Review homework Read Wright, The Ethics of Jim Crow
Thursday: Discuss Reading Answer questions
Friday: Quiz

Major Discussion Topics:

Week 4: Brown V. The Board of Education of Topeka, Kansas

After hearing a series of cases brought on behalf of Black students in segregated schools, the Court reviewed the circumstances surrounding the adoption of the 14th Amendment. This research proved inconclusive because it was clear that each side of the ratification debate had different goals. The proponents wanted to eliminate all legal distinctions while opponents wanted to limit the applicability of the Amendments.

They found, however, that after reviewing the history of public education since the ratification of the Amendment, they had a basis upon which to declare “separate but equal” legislation unconstitutional. Education is one of the most important functions of government. Compulsory education and public expenditures for education demonstrate this importance. The right to a good, equal education was fundamental to our democratic society. They thus asked the question, “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” Their answer was clear and unequivocal—”We believe it does.” Separate educational facilities are inherently unequal.

This decision came at the culmination of a series of court cases challenging segregated schools. Initially, the NAACP fought against segregated graduate school facilities. In this case, however, the plaintiffs were Black children of elementary school age residing in Topeka, Kansas. This action was brought to the United States District Court for the District of Kansas to enjoin the enforcement of a Kansas statute which permits but does not require cities of more than 15,000 population to maintain separate school facilities for Black and White students. Based on that authority, the Board of Education of Topeka elected to establish segregated elementary schools. Other public schools were run on a nonsegregated basis. The three judge District Court found that segregated public schools had a detrimental effect upon Black children, but denied relief because they found that the schools were essentially equal with respect to buildings, curriculum, transportation, and the educational qualifications of teachers.

Other related District Court decisions were Briggs v. Elliott in South Carolina, Davis v. County School Board in Virginia, and in Delaware, Gebhart v. Belton. In Briggs v. Elliott and the Davis v. County School Board, the Courts ordered that the schools be equalized, having established that the facilities and curriculum were unequal. In Delaware, however, after recognizing that the Black schools were inferior with respect to teacher training, pupil-teacher ratio, extra- curricular activities, physical plant, and time and distance of travel, the Court ordered immediate admission of Black plaintiffs into previously all White schools. It should be noted that although the Chancellor of the Delaware Court maintained that segregation itself resulted in an inferior education for Black children, he did not base his decision on this finding.

A group of Southern politicians declared their feelings about the Brown v. Board of Education decision in the Southern Manifesto, the second reading for this week. Essentially they declared that it represents a clear abuse of judicial power. They felt that the federal judiciary was encroaching on the rights of the people. Education has not been mentioned in the Constitution nor in the 14th Amendment or any other amendment. They felt that this action would destroy the amicable relationship between the White and Black races that had been created over the last century. Forcing the races to change their relationship could only produce misunderstanding and hostility.

Week 4: Assignments

In Class Homework
Monday: Review Friday’s Quiz Read Text: These United
States, pp. 624-643.
Tuesday: Introduction to the Read Brown and answer
1950s questions
Wednesday: Discuss Brown and Read Southern Manifesto
check answers
Thursday: Discuss Southern Study for quiz
Manifesto

Major Discussion Topics:

Week 5: Working for Desegregated Schools

The first is a brief description of the events leading up to the school desegregation in Little Rock, Arkansas written by Daisy Bates, the president of the state NAACP. In this section of her book, The Long Shadow of Little Rock , she describes how it came to pass that one Black school child was refused entrance to the high school because of the presence of National Guardsmen.

It first appeared that Little Rock would join many other moderate cities in the south and desegregate their schools with relatively little difficulty. Nine Black students were chosen to attend the formerly all White high school in September, 1957. However, Governor Faubus called out the National Guard to prevent the children from attending the school. This caused a clash between state and federal powers. In reaction to Faubus’ acts, President Eisenhower had to call federal troops to force desegregation. Black students attended the high school under guard for the year 1957-1958. The following year the schools were closed. The next year, however, the schools were opened on a desegregated basis. The whole world watched these events on television.

In the second reading students will learn how a psychiatrist recorded the effects of forced desegregation on the children who fought the struggle. Robert Coles studied these children in his book, Farewell to the South . Both Black and White children and their parents were affected by these changes. Children seemed to adjust easily and quickly to each other if left to explore together. They did not, however, remain unaffected by the crowds of yelling adults and the presence of soldiers. In Coles’ essay, “In the South These Children Prophesy”, he reviews the experiences of a few children and gives a real personal touch by adding his feelings and observations.

Week 5: Assignments

In class Homework
Monday: Review Friday’s Quiz Read Bates, “Little Rock
Prepares for Desegregation”
Tuesday: Discuss reading Answer questions
Wednesday: Share answers Read Coles, “In the South
the Children Prophesy”
Thursday: Discuss reading Answer questions
Friday: Review answers

Major Discussion Topics

Week 6: Busing and Forced Desegregation: I Believe

It should be noted that updating should be a continuous process for this course. So, for example, I found an excellent article that brought up the same debates but now in 1991. In January, 1991, the Supreme Court once against limited its jurisdiction in school desegregation cases. This was reported on the front page of the New York Times on January 16, l991.

During this week students will be asked to choose a topic relevant to the issues discussed in this course and to present both oral and written position papers. I will distribute a list of topics and a form which will help the students organize their thoughts and show them how to complete the assignment. The list of topics will be drawn from in class discussions and readings.


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On May 18, 1896 the Plessy v. Ferguson decision made "separate but equal" the law of the land.

Note that Homer Plessy was 1/8 Black (or 7/8 white!). According to the “one drop rule” if you had even one drop of blood from a person of African descent then you qualified as Black. So when Plessy sat in a rail car reserved for white people, even though he could easily “pass” as white in terms of skin color, he had broken the law.

Plessy v. Ferguson codified what became one of the most notable and insulting features of the Jim Crow era, separate accomodations and services for Black and white people.

Throughout the Jim Crow years, Black people faced the constant reminder that even though slavery had been abolished, they were not truly free.

Not until the Brown v. Board ruling in 1954 and the broader Civil Rights movement in the 1950s and 1960s did Black people begin to overturn the travesty of the Plessy v. Ferguson ruling.

In 1891, the Louisiana legislature codified segregation on trains, passing a law to force black people to ride in separate rail cars. The next year, in a challenge designed to reveal the absurdity of the rule, black citizens and lawmakers recruited Homer A. Plessy, who was one-eighth black (colloquially called an “octoroon”) and could easily pass for white, to test the new law by riding in the “white” car. The railroad com- pany had been alerted about Plessy’s identity and promptly arrested him after he refused to move to the “colored car.” Lawyers for Plessy argued that Louisiana’s law violated the “equal protection under the law” clause of the Fourteenth Amendment. Plessy’s case against Judge John Howard Ferguson went all the way to the Supreme Court, and on May 18, 1896, the justices of the Supreme Court ruled that Plessy’s rights had not been violated because it was a fallacy to believe that “the enforced separation of the two races stamps the colored race with a badge of inferiority.”13 The Plessy v. Ferguson decision legalized what soon became standard practice throughout the country for the next sixty years—the “separate but equal” doctrine. Had the nation’s high- est court ruled differently in this case, the color lines of the twentieth century might have been drawn much differently. In Plessy v Ferguson Americans had a choice—would they treat black people as full humans and fellow citizens? The court’s decision meant they chose not to do so, and in the years that followed many white Christians upheld racial segregation and defended it as a biblical mandate.


An Enduring Strategy

Homer Plessy is often remembered as a shoemaker &mdash but he was also an activist. Born into a French-speaking Creole family, Plessy was a member of the Comité des Citoyens, a civil rights organization of Louisianans working to challenge segregation both inside and outside the courtroom.

Mack says the Comité employed tactics that would be echoed by later civil rights activists, using a three-pronged strategy that included direct action, publicity campaigns, and litigation. &ldquoThere&rsquos a remarkable degree of continuity between the activists who brought the Plessy case and what the civil rights movement of the 20 th century will do,&rdquo he says.

The Comité started with protest. &ldquoWhen the Separate Car Act first passed, they boycott first,&rdquo says Mack. &ldquoThere will later be boycotts of segregated facilities and against segregation laws, all through the 20th century, culminating in the Montgomery bus boycott, when they came to national prominence. It&rsquos very significant that one of the first things they did in this case was to try to launch a boycott.&rdquo

When that did not work, the Comité meticulously planned the details of Plessy&rsquos fateful encounter that hot June day on the train to ensure that he would be arrested and charged &mdash and that the world would hear about it. In fact, both the train conductor, and the on-board detective who arrested Plessy, were key players in the organization&rsquos plan to challenge the law. Through newsletters, they would publicize the unjustness of Plessy&rsquos arrest and of the segregation law itself.

We are still grappling with laws that appear neutral on their face, but in fact, are discriminatory. It&rsquos important to understand Plessy, so we can understand how segregation was rationalized as being neutral.

And once in court, Plessy&rsquos attorneys tried a variety of arguments that would be also be used by the NAACP and other civil rights organizations in the early- and mid-20th century, says Mack. &ldquoThe activists in New Orleans who mounted Plessy as a test case were explicitly thinking about the federal courts, because they understood that the state courts in Louisiana were not going to help them.&rdquo

Before the Civil War, citizenship rights were defined at the state level, but the 13th, 14th, and 15th Amendments created new national protections, adds Mack. &ldquoWhat the Plessy lawyers, and the organizations that supported them, did was to first make the case that the 13th and 14th Amendments changed things and created new and quite vigorous national civil rights that redefined citizenship.&rdquo

While segregationists argued that that the mandates of the 13th and 14th Amendments were narrow &mdash eliminate explicit slavery, prohibit only the most egregious and admitted discrimination against African Americans by state actors &mdash Plessy and the Comité pushed for a broader interpretation, Mack says.

&ldquoTheir claim was straightforward: that everyone knows why Louisiana enacted this segregation law,&rdquo he says. &ldquoIt&rsquos to keep Black people down, to say to them that they&rsquore inferior, to make it so that white people don&rsquot have to associate with Black people, and to do it through the law. Plessy&rsquos claim was about the intention behind the law, that the intention was discriminatory, and that that was exactly the kind of thing that the 14th and even the 13th Amendments had been framed and ratified to prevent.&rdquo

Mack argues that this idea about intentionality &mdash that segregation laws were passed primarily to disparage and humiliate Black people &mdash was radical, and while it did not disappear in later civil rights cases, it tended to be strategically muted in favor of arguments that separate accommodations were not in fact &ldquoequal.&rdquo

&ldquoAs is widely known, in the Brown decision itself the Court went out of its way not to say that segregation laws were promulgated with racist intent. And we&rsquore having the same debate today: There is a law that is passed that is alleged to be discriminatory against a minority group. But the law is neutral on its face,&rdquo he says.


Contents

Incident Edit

In 1890, the state of Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads, including separate railway cars. [10] Concerned, a group of prominent black, creole of color, and white creole New Orleans residents formed the Comité des Citoyens (Committee of Citizens) dedicated to repeal the law or fight its effect. [11] They persuaded Homer Plessy, a man of mixed race who was an "octoroon" (person of seven-eighths white and one-eighth black ancestry), to participate in an orchestrated test case. Plessy was born a free man and was a fair-skinned man of color. However, under Louisiana law, he was classified as black, and thus required to sit in the "colored" car. [12]

On June 7, 1892, Plessy bought a first-class ticket at the Press Street Depot and boarded a "Whites Only" car of the East Louisiana Railroad in New Orleans, Louisiana, bound for Covington, Louisiana. [13] The railroad company, which had opposed the law on the grounds that it would require the purchase of more railcars, had been previously informed of Plessy's racial lineage, and the intent to challenge the law. [14] Additionally, the Comité des Citoyens hired a private detective with arrest powers to detain Plessy, to ensure that he would be charged for violating the Separate Car Act, as opposed to vagrancy or some other offense. [14] After Plessy took a seat in the whites-only railway car, he was asked to vacate it, and sit instead in the blacks-only car. Plessy refused and was arrested immediately by the detective. [15] As planned, the train was stopped, and Plessy was taken off the train at Press and Royal streets. [14] Plessy was remanded for trial in Orleans Parish. [2]

Trial Edit

In his case, Homer Adolph Plessy v. The State of Louisiana, Plessy's lawyers argued that the state law which required East Louisiana Railroad to segregate trains had denied him his rights under the Thirteenth and Fourteenth amendments of the United States Constitution, [16] which provided for equal treatment under the law. However, the judge presiding over his case, John Howard Ferguson, ruled that Louisiana had the right to regulate railroad companies while they operated within state boundaries. Plessy was convicted and sentenced to pay a $25 fine. Plessy immediately sought a writ of prohibition. [2]

State appeal Edit

The Comité des Citoyens took Plessy's appeal to the Supreme Court of Louisiana, where he again found an unreceptive ear, as the state Supreme Court upheld Judge Ferguson's ruling. [14] In speaking for the court's decision that Ferguson's judgment did not violate the 14th Amendment, Louisiana Supreme Court Justice Charles Erasmus Fenner cited a number of precedents, including two key cases from Northern states. The Massachusetts Supreme Court had ruled in 1849—before the 14th amendment—that segregated schools were constitutional. In answering the charge that segregation perpetuated race prejudice, the Massachusetts court famously stated: "This prejudice, if it exists, is not created by law, and probably cannot be changed by law." [17] The law itself was repealed five years later, but the precedent stood. [18]

In a Pennsylvania law mandating separate railcars for different races the Pennsylvania Supreme Court stated: "To assert separateness is not to declare inferiority . It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix." [19] [18]

Supreme Court appeal Edit

Undaunted, the Committee appealed to the United States Supreme Court in 1896. [16] Two legal briefs were submitted on Plessy's behalf. One was signed by Albion W. Tourgée and James C. Walker and the other by Samuel F. Phillips and his legal partner F. D. McKenney. Oral arguments were held before the Supreme Court on April 13, 1896. Tourgée and Phillips appeared in the courtroom to speak on behalf of Plessy. [2] Tourgée built his case upon violation of Plessy's rights under the 13th Amendment, prohibiting slavery, and the 14th Amendment, which states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws." Tourgée argued that the reputation of being a black man was "property", which, by the law, implied the inferiority of African Americans as compared to whites. [20] The state legal brief was prepared by Attorney General Milton Joseph Cunningham of Natchitoches and New Orleans. Cunningham was a staunch supporter of white supremacy, who according to a laudatory 1916 obituary "worked so effectively [during Reconstruction] in restoring white supremacy in politics that he finally was arrested, with fifty-one other men of that community, and tried by federal officials." [21]

On May 18, 1896, the Supreme Court issued a 7–1 decision against Plessy that upheld the constitutionality of Louisiana's train car segregation laws. [14] Justice David J. Brewer did not participate in the case because he had left Washington just before oral arguments to attend to the sudden death of his daughter.

Opinion of the Court Edit

Seven justices formed the Court's majority and joined an opinion written by Justice Henry Billings Brown.

The Court's opinion first dismissed any claim that the Louisiana law violated the Thirteenth Amendment, which, in the majority's opinion, did no more than ensure that black Americans had the basic level of legal equality needed to abolish slavery. [22] Next, the Court considered whether the law violated the Fourteenth Amendment 's Equal Protection Clause, which reads: "nor shall any State . deny to any person within its jurisdiction the equal protection of the laws." The Court concluded that although the Fourteenth Amendment was meant to guarantee legal equality of all races in America, it was not intended to prevent social or other types of discrimination. [22]

The object of the [Fourteenth] Amendment was undoubtedly to enforce 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.

The Court reasoned that laws requiring racial separation were within Louisiana's police power: the core sovereign authority of U.S. states to pass laws on matters of "health, safety, and morals". [22] It held that as long as a law that classified and separated people by their race was a reasonable and good faith exercise of a state's police power, and was not designed to oppress a particular class, the law was legal. [22] According to the Court, the question in any case of racial segregation laws like Plessy was whether the law was reasonable, and the Court gave great discretion to State legislatures to determine the reasonableness of the laws they passed. [22]

Plessy's lawyers had argued that segregation laws inherently implied that black people were inferior, and therefore stigmatized them with a second-class status that violated the Equal Protection Clause. [24] The Court rejected this argument:

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 on it.

The Court rejected the notion that the law marked black Americans with "a badge of inferiority", and stated that racial prejudice could not be overcome by legislation. [22]

Dissent Edit

Justice John Marshall Harlan was the lone dissenter from the decision. Harlan disagreed with the Court's rejection of Plessy's argument that the Louisiana law implied that blacks were inferior, and accused the majority of being willfully ignorant.

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

As evidence of this willful ignorance, Harlan pointed out that the Louisiana law contained an exception for "nurses attending children of the other race", which allowed black women who were nannies to white children to be in the whites-only cars. [27] This demonstrated, in other words, that a black person could be in the whites-only cars as long as it was obvious that they were a "social subordinate" or "domestic". [27]

In an eloquent and now well-known passage, Harlan argued that even though many white Americans of the late 19th century considered themselves socially superior to Americans of other races, the U.S. Constitution was "color-blind", and could not permit any classes among citizens in matters of civil rights. [28]

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. . 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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Harlan's correctly predicted that the Plessy decision would eventually become as infamous as the Court's 1857 decision Dred Scott v. Sandford, in which the Court ruled that black Americans could not be citizens under the U.S. Constitution, and that its legal protections and privileges could never apply to them.

Plessy legitimized state laws establishing "racial" segregation in the South and provided an impetus for further segregation laws. It also legitimized laws in the North requiring "racial" segregation, such as in the Boston school segregation case noted by Justice Brown in his majority opinion. [30] Legislative achievements won during the Reconstruction Era were erased through means of the "separate but equal" doctrine. [31] The doctrine had been strengthened also by an 1875 Supreme Court decision that limited the federal government's ability to intervene in state affairs, guaranteeing to Congress only the power "to restrain states from acts of racial discrimination and segregation". [32] The ruling basically granted states legislative immunity when dealing with questions of "race", guaranteeing the states' right to implement racially separate institutions, requiring them only to be equal. [33]

Despite the pretense of "separate but equal", non-whites essentially always received inferior facilities and treatment, if they received them at all. [34] [ page needed ]

The prospect of greater state influence in matters of race worried numerous advocates of civil equality, including Supreme Court Justice John Harlan, who wrote in his Plessy dissent, "we shall enter upon an era of constitutional law, when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master." [32] Harlan's concerns about the encroachment on the 14th Amendment would prove well-founded states proceeded to institute segregation-based laws that became known as the Jim Crow system. [35] In addition, from 1890 to 1908, Southern states passed new or amended constitutions including provisions that effectively disenfranchised blacks and thousands of poor whites.

Some commentators, such as Gabriel J. Chin [36] and Eric Maltz, [37] have viewed Harlan's Plessy dissent in a more critical light, and suggested it be viewed in context with his other decisions. [36] Maltz has argued that "modern commentators have often overstated Harlan's distaste for race-based classifications", pointing to other aspects of decisions in which Harlan was involved. [38] Both point to a passage of Harlan's Plessy dissent as particularly troubling: [39] [40]

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union . and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. [41]

New Orleans historian Keith Weldon Medley, author of We As Freemen: Plessy v. Ferguson, The Fight Against Legal Segregation, said the words in Justice Harlan's "Great Dissent" were taken from papers filed with the court by "The Citizen's Committee". [42]

The effect of the Plessy ruling was immediate there were already significant differences in funding for the segregated school system, which continued into the 20th century states consistently underfunded black schools, providing them with substandard buildings, textbooks, and supplies. States which had successfully integrated elements of their society abruptly adopted oppressive legislation that erased reconstruction era efforts. [43] [ page needed ] The principles of Plessy v. Ferguson were affirmed in Lum v. Rice (1927), which upheld the right of a Mississippi public school for white children to exclude a Chinese American girl. Despite the laws enforcing compulsory education, and the lack of public schools for Chinese children in Lum's area, the Supreme Court ruled that she had the choice to attend a private school. [44] Jim Crow laws and practices spread northward in response to a second wave of African-American migration from the South to northern and midwestern cities. Some established de jure segregated educational facilities, separate public institutions such as hotels and restaurants, separate beaches among other public facilities, and restrictions on interracial marriage, but in other cases segregation in the North was related to unstated practices and operated on a de facto basis, although not by law, among numerous other facets of daily life. [43] [ page needed ]

The separate facilities and institutions accorded to the African-American community were consistently inferior [45] to those provided to the White community. This contradicted the vague declaration of "separate but equal" issued after the Plessy decision. [46] Since no state wrote the "separate but equal" doctrine into a statute, there was no remedy, other than going back to the U.S. Supreme Court, if the separate facilities were not equal, and states faced no consequences if they underfunded services and facilities for non-whites. [ citation needed ]

From 1890 to 1908, state legislatures in the South disenfranchised most blacks and many poor whites through rejecting them for voter registration and voting: making voter registration more difficult by providing more detailed records, such as proof of land ownership or literacy tests administered by white staff at poll stations. African-American community leaders, who had achieved brief political success during the Reconstruction era and even into the 1880s, lost gains made when their voters were excluded from the political system. Historian Rogers Smith noted on the subject that "lawmakers frequently admitted, indeed boasted, that such measures as complex registration rules, literacy and property tests, poll taxes, white primaries, and grandfather clauses were designed to produce an electorate confined to a white race that declared itself supreme", notably rejecting the 14th and 15th Amendments to the American Constitution. [47]

In Brown v. Board of Education (1954), the US Supreme Court ruled that segregation in public education was unconstitutional. [48] Plessy v. Ferguson was never explicitly overruled by the Supreme Court, but is effectively dead as a precedent. [49] The Civil Rights Act of 1964 prohibited legal segregation and the Voting Rights Act of 1965 provided for federal oversight and enforcement of voter registration and voting. [ citation needed ]

Plessy and Ferguson Foundation Edit

In 2009, Keith Plessy and Phoebe Ferguson, descendants of participants on both sides of the 1896 Supreme Court case, announced establishing the Plessy and Ferguson Foundation for Education and Reconciliation. The foundation will work to create new ways to teach the history of civil rights through film, art, and public programs designed to create understanding of this historic case and its effect on the American conscience. [50]

In 2009 a marker was placed [14] at the corner of Press and Royal Streets, near where Plessy had boarded his train. [51]


Watch the video: Plessy v. Ferguson Summary.