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Plessy v. Ferguson

Plessy v. Ferguson

At issue in Plessy v. Ferguson was an 1890 Louisiana law that required passenger trains operating within the state to provide "equal but separate" accommodations for "white and colored races." The Supreme Court upheld the law by a 7–1 vote, in the process putting a stamp of approval on all laws that mandated racial segregation. In his majority opinion, Justice Henry Billings Brown concluded that the Fourteenth Amendment "could not have 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."

Justice John M. Harlan, the lone dissenter, responded that the "arbitrary separation of citizens on the basis of race" was equivalent to imposing a "badge of servitude" on African Americans. He contended that the real intent of the law was not to provide equal accommodations but to compel African Americans "to keep to themselves." This was intolerable because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Nevertheless, Plessy was the law of the land until 1954.

Plessy v. Ferguson

(May 18, 1896.)

No. 210.

1. An act requiring white and colored persons to be furnished with separate accommodations on railway trains does not violate Const. Amend. 13, abolishing slavery and involuntary servitude. 11 South. 948, affirmed.

2. A state statute requiring railway companies to provide separate accommodations for white and colored persons, and making a passenger insisting on occupying a coach or compartment other than the one set apart for his race liable to fine or imprisonment, does not violate Const. Amend. 14, by a abridging the privileges or immunities of United States citizens, or depriving persons of liberty or property without due process of law, or by denying them the equal protection of the laws. 11 South. 948. affirmed.

Mr. Justice Harlan dissenting.

In Error to the Supreme Court of the State of Louisiana.

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-eighths 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, withstanding 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 of 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 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 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.

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 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 employes 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-eighths 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 is does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as 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, 100 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 found 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 distinguished 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 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. 705; 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 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. Rives, 100 U. S. 313; Neal v. Delaware, 103 U.S. 370; Bush 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 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 cabins 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 that 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 counteracting 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 to 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 petition, so as to secure separate accommodations. The case was presented in a different aspect 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 any 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. Gems, 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 underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. 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 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) carrying 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 a colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, buy are required to assign each passenger to some coach or compartment set apart for the exclusive use of his 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 employes 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 person 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 the 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 rights, 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 take such action based upon it as to him seems proper. But I can 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 sate 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; not 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, 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."

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 discharge 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 accommodation 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? Furthermore, 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 question was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questions 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 must keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the lawmaking 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 supreme 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 the 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 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 was 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 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 here, 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 statute 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.

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Plessy v. Ferguson

Plessy v. Ferguson

Sources

Jim Crow. Following the end of Reconstruction in 1877, Southern states made racial discrimination a matter of public policy by passing Jim Crow laws. Named after a 1830s minstrel-show character, these statutes maintained racial segregation and varied from state to state. In 1887 Florida became the first state to require whites and blacks to ride separately in railroad cars. Other states followed: Mississippi (1888), Texas (1889), Louisiana (1890), Alabama, Arkansas, Georgia, and Tennessee (1891), and Kentucky (1892). The Louisiana law, An Act to Promote the Comfort of Passengers, required equal but separate accommodations for people of each race.

Homer Plessys Train Ride. On 7 June 1892 Homer A. Plessy bought a ticket and boarded an East Louisiana Railway train bound from New Orleans to Covington, Louisiana. Plessy was an octoroon, a person of one-eighth black ancestry (one of his great-grandparents was African American). Someone told the conductor that Plessy was colored, who then instructed him to sit I in the colored coach. Plessy refused and was arrested. Brought before John H. Ferguson of the New Orleans district criminal court, Plessy was found guilty of violating the 1890 law. Plessys lawyers, Albion Tourgée and James Walker, filed a writ of certiorari that allowed the case to be taken to the state supreme court. In November 1892 state chief justice Francis Nichols, who had been governor in 1890, upheld the state law but granted a writ of error that brought Plessys case, now Plessy v. Ferguson, to the U.S. Supreme Court in April 1896.

Tourgées Argument. Tourgée served as a judge in North Carolina during Reconstruction. His novel about his experiences, A Fools Errand (1879), remains one of the classic accounts of that difficult period. In arguing for Plessy, Tourgée developed two arguments. First, the law was unconstitutional because it violated the Thirteenth Amendment, which abolished slavery. Second, the state had deprived Plessy of his property, a violation of the Fourteenth Amendment. Plessys property, in this case, was the reputation of being white. Tourgée noted that Plessy appeared white, but the conductor had made the judgment that he was black and thus deprived him of the master-key that unlocks the golden door of opportunity. Race prejudice barred any man labeled a Negro from the opportunity to succeed. Because Plessy, and many others labeled as black, were visibly white, the state had no reason to segregate them because of their race. Tourgée noted that the state law exempted black women hired to care for white children, who were permitted to travel with their charges. This exemption, Tourgée told the Court, shows that the real evil lies not in the color of the skin but in the relation the colored person sustains to the white. If he is a dependent, it may be endured: if he is not, his presence is insufferable. Instead of promoting the general comfort of passengers, as the laws title suggested, it instead was intended to promote the happiness of one class by asserting its supremacy and the inferiority of another class. Justice is pictured blind and her step-daughter, the Law, ought at least to be color-blind. Tourgée speculated that the state would next require whites and blacks to walk on different sides of the street and to paint their houses different colors. He mockingly asked the Court if people with different hair or eye colors should also be segregated.

The Courts Opinion. The court did not accept Tourgées argument. On 18 May 1896 Justice Henry Brown wrote for the majority that the state had the power to pass segregation laws. According to the Court, the Thirteenth Amendment only applied to actions whose purpose was to reintroduce slavery itself. The Fourteenth Amendment had extended legal rights to all citizens but had not abolished distinctions based on color. The law could not abolish these distinctions, anyway, Brown wrote, and social prejudices could not be overcome by legislation. Plessy may have been deprived of his reputation, but the laws requiring him to sit in a separate car did not really stigmatize him as inferior. If he felt stigmatized, Brown said, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. If blacks subjected whites to segregation, Brown was sure whites would not see it as proof of white inferiority.

Harlans Dissent. Justice John Harlan, who had dissented in the 1883 Civil Rights Cases, found himself alone in dissent again in 1896. 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. He reasoned that the Courts decision would encourage lawless attacks on citizens and would encourage states to continue challenging the Thirteenth and Fourteenth amendments. Harlan dismissed the idea advanced by proponents of segregation that separating the races prevented racial conflict. Instead of establishing racial harmony, the decision allowed states under the sanction of law to plant the seeds of hate. What can more certainly arouse race hate, what can more certainly create and perpetuate a feeling of distrust between the 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?

Second-Class Citizens. Harlan concluded his dissenting opinion with one of the ringing statements for which he is best known. In the view of the Constitution, in the eyes 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. In 1896 the Court affirmed the right of states to enshrine private prejudices in public law. Four years later a Richmond, Virginia, newspaper editor insisted that God Almighty drew the color line and it cannot be obliterated. The negro must stay on his side of the line and the white man must stay on his side, and the sooner both accepted this the better it would be for them. States drew the line, mandating not only separate railroad cars, but separate schools, hotels, theaters, parks, drinking fountains, and restrooms. The doctrine of separate but equal would remain in place until 1954.

Sources

Plessy v. Ferguson, 163 U.S. 537-564 (1895);

John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society 1890-1920 (Westport, Conn.: Greenwood Press, 1978);

C. Vann Woodward, The Case of the Louisiana Traveler, in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1964);

Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (New I York: Oxford University Press, 1995).

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Plessy v. Ferguson

PLESSY V. FERGUSON

PLESSY V. FERGUSON, 163 U.S. 537 (1896). African American activists and eighteen black members of the Louisiana state legislature of 1890 organized to defeat a bill requiring racial segregation on railroads by trading votes with white Democrats on the issue of a state lottery. When the "equal, but separate" law passed, the lawyer and editor Louis A. Martinet marshaled much of the group to test the law's constitutionality. They hired the white Reconstruction judge and popular novelist Albion W. Tourgee as the organization's lawyer, and recruited Homer Plessy to board a railroad car reserved for whites. Arrested by arrangement with the railroad company, which wished to avoid the expense of maintaining separate cars for patrons of each race, Plessy was arraigned before Orleans Parish Criminal Court Judge John H. Ferguson.

Tourgee argued that segregation contravened the Thirteenth and Fourteenth Amendments, because it was a "badge of servitude" intended not to separate the races (black nurses could travel with white employers) but purely to emphasize the blacks' subordinate status. It was also arbitrary and unreasonable, because it allowed mere railroad conductors to determine a person's race, and because race had nothing to do with transportation.

After Judge Ferguson and the racist Louisiana Supreme Court rejected or sidestepped these arguments, Tourgee appealed to a U.S. Supreme Court, which was undergoing an unusually high personnel turnover, adding five new justices during the four years that Plessy was pending. Different appointments might have led to a different decision. As it was, the Louisiana law was upheld seven to one, with four of the positive votes coming from members of the more racist Democratic Party.

The arguments—between justices Henry Billings Brown of Michigan for the majority and John Marshall Harlan of Kentucky in dissent—came down to three basic points. First, Brown thought racial separation and social inequality natural and unalterable by statutory or constitutional law, while former slaveholder Harlan pointed out that it was Louisiana law, not custom, that imposed segregation here. Stealing a phrase from Tourgee's brief, Harlan announced that "Our Constitution is color-blind." Second, the justices disagreed on whether the separate car law had an invidious purpose, the northerner denying it, but the southerner knowing better. Third, Brown ruled that the legislature's imposition of segregation was "reasonable," citing laws and lower court decisions from other states that supported his position. He deliberately ignored, however, the fact that nearly every northern state had

passed laws prohibiting racial segregation in schools and public accommodations. In response, Harlan criticized "reasonableness" as merely another name for a judge's personal values, agreed with Tourgee that the law was arbitrary, and predicted that the Plessy decision would stimulate racial hatred and conflict. Thus, the disagreements between Brown and Harlan turned more on facts and armchair social psychology than on precedent or public opinion.

The terms of the argument between Brown and Harlan insured that the campaign of the National Association for the Advancement of Colored People to overturn Plessy, which led to Brown v. Board of Education (1954), would spotlight testimony by professional social psychologists and focus on social facts.

BIBLIOGRAPHY

Klarman, Michael J. "The Plessy Era." The Supreme Court Review (1998): 303–414.

Lofgren, Charles A. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987.

Thomas, Brook, ed. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford Books, 1997.

J. MorganKousser

See alsoBrown v. Board of Education of Topeka ; Desegregation ; Segregation .

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Plessy v. Ferguson

PLESSY V. FERGUSON

An 1896 decision by the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, upheld the constitutionality of an 1890 Louisiana statute requiring white and "colored" persons to be furnished "separate but equal" accommodations on railway passenger cars.

The plaintiff, Homer Adolph Plessy, who was seven-eights Caucasian and one-eighth African, paid for a first-class seat on a Louisiana railroad. He took a seat in the coach that was reserved for white passengers, but the conductor told him to leave the "white" car and go to the "colored" coach under threat of being expelled from the train and arrested. When Plessy refused, he was ejected from the train and imprisoned. He was prosecuted for violating the law, which he asserted was unconstitutional and violated the thirteenth amendment to the U.S. Constitution, which abolished slavery, and the fourteenth amendment to the Constitution, which prohibited certain restrictive legislative acts by the states.

The Supreme Court agreed to decide the constitutionality of the law. It reasoned that, although the Thirteenth Amendment intended to abolish slavery, it was insufficient to protect the "colored" people from certain harsh state laws that treated them unequally. The Fourteenth Amendment was enacted "to enforce the absolute equality of the two races before the law … (but) it could not have been intended to abolish distinctions based upon color or to enforce social as distinguished from political equality.…"The Court decided that the law establishing separate but equal public accommodations and facilities was a reasonable exercise of the police power of a state to promote the public good. "If the two races are to meet upon terms of social equality, it must be the result of voluntary consent of the individuals."

Only Justice john marshall harlan dissented, on the ground that such a law "interferes with the personal freedom of citizens" under the

guise of legal equality. He maintained that the constitutional guarantees in this country were to be color-blind.

In 1954, the Supreme Court overruled this decision and recognized that separate but equal educational facilities were inherently unequal in brown v. board of education of topeka, kansas, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Subsequent Supreme Court decisions prohibited racial segregation in any public facilities and accommodations.

further readings

Anderson, Wayne. 2004. Plessy v. Ferguson: Legalizing Segregation. New York: Rosen.

Medley, Keith Weldon. 2003. We as Freemen: Plessy v. Ferguson. Gretna, La.: Pelican.

Postema, Gerald J., ed. 1997. Racism and the Law: The Legacy and Lessons of Plessy. Boston: Kluwer Academic.

Thomas, Brook, ed. 1997. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford.

cross-references

Civil Rights; Civil Rights Movement; Integration; Jim Crow Laws; "Plessy v. Ferguson" (Appendix, Primary Document).

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Plessy v. Ferguson

Plessy v. Ferguson, case decided by the U.S. Supreme Court in 1896. The court upheld an 1890 Louisiana statute mandating racially segregated but equal railroad carriages, ruling that the equal protection clause of the 14th amendment to the U.S. Constitution dealt with political and not social equality. The case arose from resentment among black and Creole residents of New Orleans and was supported by the railroad companies, who felt it unnecessary to pay the cost of separate cars. Justice Henry Billings Brown wrote the majority opinion, stating that "separate but equal" laws did not imply the inferiority of one race to another. Justice John Harlan (1833–1911) dissented, arguing that the U.S. Constitution was color-blind. The decision provided constitutional sanction for the adoption throughout the South of a comprehensive series of Jim Crow laws, which were maintained until overruled in 1954 by Brown v. Board of Education of Topeka, Kans. It had particular relevance to education, with Justice Brown drawing parallels between race segregation on trains and in educational facilities.

See study by W. H. Hoffer (2012).

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Plessy V. Ferguson

PLESSY V. FERGUSON


The landmark Supreme Court decision in 1896 of Plessy v. Ferguson strengthened the constitutionality of segregation laws in the United States. The ruling would not be reversed for over fifty years, until the Supreme Court finally recognized the inequality inherent in "separate but equal" legislation in 1954 with the Brown v. Board of Education of Topeka (1954) case.

During the period of Reconstruction (18651877) federal troops were stationed in the South to protect former slaves from their former masters and to insure that the civil rights that had been accorded to African Americansthe Thirteenth, Fourteenth, and Fifteenth Amendments as well as numerous federal lawswere not violated. But the long and stubborn resistance against the federal presence waged by southern whites eventually wore down the patience of the northern public. When the troops were withdrawn the political order in the South reverted to something similar to the pre-Civil War South with the exception that slavery was replaced with sharecropping (blacksand poor whitesrenting land for "shares" of the crop) and violence against blacks came in the form of terrorism committed by groups of "night-riders" (Ku Klux Klan, "Mississippi Red-Shirts," Knights of the White Camellia or a half dozen other groups) rather than by the slave owner himself or his delegates.


After 1877, southern legislatures set about reversing the civil rights gains made during the Reconstruction period by passing Jim Crow laws, which segregated whites and blacks. ("Jim Crow" was a shuffling, subservient, and stupid black character in minstrel shows.) In June 1892, in the midst of this social counter-revolution, Homer Plessy, a 30-year old shoemaker who was one-eighth African American, purposely challenged such a segregation law in Louisiana. Plessy boarded a train, informed the conductor that he, Plessy, was not 100 percent white, refused to vacate a first class seat, and would not move to a separate "colored" car. Plessy was arrested under the Louisiana Separate Car Act of 1890, which required that railroads provide "equal but separate accommodations for the white and colored races," and which prohibited a person from using a rail car to which their race had not been assigned.

In the 1890s the Comité des Citoyens formed in Louisiana to oppose the Separate Car Act. The committee's members were mostly descendants of "free persons of color," an elite class of African Americans that included writers, musicians, and community leaders, most of whose ancestors probably were never slaves. Some were "Creole," connected by blood ties to families of the white gentry.

In 1892 the Comité des Citoyens tried unsuccessfully to challenge the Separate Car Act when the light-skinned Daniel Desdunes bought a rail ticket to travel out of state, and sat in a car for whites only. But after his arrest, the prosecution dropped the case when the Louisiana Supreme Court ruled in another decision that the state legislature had no jurisdiction over interstate travel. Thus, as part of the continued legal battle, the Comité des Citoyens also challenged the statute within the state of Louisiana with Homer Plessy in 1892. Plessy was released from jail the day after he was arrested. The plan of Plessy's attorney, James E. Walker, was to invalidate the segregation law by invoking the Thirteenth and Fourteenth Amendments. The Thirteenth Amendment abolished slavery and the Fourteenth Amendment gave all naturalized citizens equal protection under the law by state and federal governments.

Plessy appeared before Judge John H. Ferguson of the Criminal Court of New Orleans, who upheld the constitutionality of the state law. Plessy then decided to take the case to the United States Supreme Court, again challenging the law on the basis that it violated the Thirteenth and Fourteenth Amendments. The U.S. Supreme Court found Plessy guilty again. Justice Henry Brown, speaker for the eight-person court, argued that the state law did not contradict the Thirteenth Amendment abolishing involuntary servitude because the statute "merely implies a legal distinction between the white and colored races." With regard to the Fourteenth Amendment, the Court argued, the amendment's purpose was "to enforce the absolute equality of the two races before the law . . . . Laws . . . requiring their separation . . . do not necessarily imply the inferiority of either race." The lone dissenter in the decision was former slave owner Justice John Marshall Harlan. He wrote, "Our Constitution is color-blind . . . In respect of civil rights all citizens are equal before the law." He argued that the majority opinion of the Court ceded power to the states, which would "place in a condition of legal inferiority a large body of American citizens."

The test case had failed to undermine the constitutionality of the segregation laws. In 1897 Plessy returned to Court in New Orleans. He pled guilty and was fined $25 for violating the 1890 law. The Supreme Court decision of Plessy v. Ferguson subsequently permitted the expansion of Jim Crow legislation until the middle of the twentieth century.

See also: Affirmative Action, Civil Rights Movement, Jim Crow Laws


FURTHER READING

Higgs, Robert. Competition and Coercion: Blacks in the American Economy, 18651914. Cambridge: Cambridge University Press, 1977.

Rabinowitz, Howard N. Race Relations in the Urban South, 18651890. Urbana: University of Illinois Press, 1980.

Thomas, Brook, ed. Plessy v. Ferguson: A Brief History with Documents Boston: Bedford Books, 1997.

Williamson, Joel. A Rage for Order: Black/White Relations in the American South since Emancipation. New York: Oxford University Press, 1986.

Woodward, C. Vann. The Strange Career of Jim Crow. New York: Oxford University Press, 1974.

Wright, Gavin. Old South, New South: Revolutions in the Southern Economy Since the Civil War. New York: Basic Books, 1986.

plessy was arrested under the louisiana separate car act of 1890, which required that railroads provide "equal but separate accommodations for the white and colored races," and which prohibited a person from using a rail car to which their race had not been assigned.

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"Plessy V. Ferguson." Gale Encyclopedia of U.S. Economic History. . Retrieved October 18, 2017 from Encyclopedia.com: http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/plessy-v-ferguson-0