Plessy V. Ferguson

views updated

PLESSY V. FERGUSON

In a seven-to-one decision, with one justice not participating, the United States Supreme Court on 18 May 1896 ruled that an 1890 Louisiana law mandating "equal but separate" accommodations for "whites and "coloreds" on intrastate railroads did not violate the constitutional rights of Homer Plessy (1863–1925), who, because he had one-eighth African ancestry, was considered a "colored" person under state law. The Court's decision allowed states to impose a legal system of racial segregation, until the 1954 ruling of Brown v. Board of Education. The majority decision was written by Justice Henry Billings Brown (1836–1913), born in Massachusetts. The lone dissenter was Justice John Marshall Harlan (1833–1911), a former slave owner and one of two southerners on the Court. Plessy's attorney was Albion W. Tourgée (1838–1905), a novelist and lawyer who was one of the period's most vocal advocates of civil rights for African Americans.

CIVIL RIGHTS AND THE THIRTEENTH AND FOURTEENTH AMENDMENTS

Plessy v. Ferguson tested the limits of the Thirteenth and Fourteenth Amendments, which were added to the Constitution after the Civil War. The Thirteenth Amendment forbids slavery and involuntary servitude, except as punishment for the commission of a crime. Soon after its 1865 ratification, the Court ruled that it also forbids "badges and incidents" of slavery. Ratified in 1868, the Fourteenth Amendment states, "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. 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 prompted Congress to pass important civil rights acts in 1866 and 1875. The 1866 Civil Rights Act extended U.S. citizenship to African Americans and others by declaring, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." It also guaranteed "citizens of every race and color" various rights, especially economic ones, such as the right "to make and enforce contracts, to sue, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property" (Thomas, ed., Plessy v. Ferguson, p. 13). The 1875 Civil Rights Act made it illegal to discriminate on the basis of color in theaters, amusement parks, places of public accommodation, public transportation, and so on. The more comprehensive Act of 1875 marked the high point for the legal protection of civil rights in the postbellum period, but it also sparked heated controversy. The Supreme Court resolved the controversy in the Civil Rights Cases of 1883 when an eight-to-one majority, with Justice Harlan again dissenting, declared the Act of 1875 unconstitutional.

In the Civil Rights Cases the U.S. government argued that the Act of 1875 was supported by both the Thirteenth and the Fourteenth Amendments. Racial discrimination, it argued, was a product of the institution of slavery and thus constituted a "badge of servitude." It also claimed that discrimination violated both the due process and the equal protection clauses of the Fourteenth Amendment. Finally, it asserted that freedom from discrimination was one of the privileges and immunities of citizenship protected by the Fourteenth Amendment. The majority of the Court, however, disagreed. It countered the Thirteenth Amendment justification by pointing to laws in the North prior to the Civil War that denied equal rights to free blacks. Racial discrimination, it concluded, was not inextricably linked to the institution of slavery. In denying the government's Fourteenth Amendment justification, the majority looked at the amendment's exact language. The privileges and immunities clause, the due process clause, and the equal protection clause, it noted, place restrictions on states, not individuals. Whereas the Act of 1875 had forbidden private parties from discriminating on the basis of race, the Fourteenth Amendment forbids only state action. Thus the Act of 1875 was not supported by the Constitution.

The Civil Rights Cases set the stage for Plessy. Emboldened by the Court's decision, various states passed laws like the one in Louisiana, mandating separate but equal facilities. Since these laws were clearly the actions of states, not individuals, the question before the Court in Plessy was: How far could a state go in forcing people to be assorted by race?

A COURT CHALLENGE AND A DECISION

Albion W. Tourgée, contacted in September 1891 by New Orleans blacks who wanted to protest the 1890 law, proposed challenging the Jim Crow law with someone of mixed blood, hoping that doing so would point out the arbitrariness of creating mutually exclusive categories of "whites" and "coloreds." Plessy volunteered to test the law. Because he was able to pass as white, he could have ridden in the white car undetected, but Tourgée needed a legal challenge. That challenge received some silent support from railroad companies, which did not like the added expense of providing separate cars. By prearrangement the railroad conductor and a private detective detained Plessy on 7 June 1892 when he sat in the forbidden coach. He was convicted and his case wound through a series of appeals until it reached the Supreme Court four years later.

Tourgée argued that the Louisiana law violated both the Thirteenth and the Fourteenth Amendments. Again the Court disagreed. Relying on the Civil Rights Cases, it dismissed the Thirteenth Amendment appeal with little comment. The Fourteenth Amendment appeal, it admitted, was more complicated. In his decision Brown first addressed intention. "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" (Thomas, ed., Plessy v. Ferguson, p. 44). He then established that every state has certain police powers that can be used for the public good. The question facing the Court in Plessy, therefore, was whether the Louisiana law was reasonable. "In determining the question of reasonableness," Brown argued, "[a legislature] 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" (Thomas, ed., Plessy v. Ferguson, p. 50). According to this standard, the Louisiana law was deemed constitutional. Indeed, to stress its reasonableness, Brown cited the antebellum Massachusetts case of Roberts v. City of Boston (1849). Speaking for the Court, Lemuel Shaw, Herman Melville's famous father-in-law, declared that segregated schools did not violate the Massachusetts constitution's guarantee of equality before the law.

It is important to remember that, without the guarantee of equal facilities, the Louisiana law would not have passed constitutional scrutiny. Because a white was forbidden to sit in a black car just as a black was in a white car and because facilities in both were supposed to be equal, whites and blacks were, Brown reasoned, treated equally under the law. Indeed, the "underlying fallacy" of Plessy's argument, he asserted, was 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" (Thomas, ed., Plessy v. Ferguson, p. 50).

A second fallacy of Plessy's argument, according to Brown, was the assumption "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." The Constitution, he asserted, guarantees equal civil and political rights, but it cannot create social equality. As to Tourgée's effort to have someone of mixed blood challenge legal assortments by color, Brown concluded that in the federal system states have the right to determine racial classifications.

A DISSENTING OPINION

The majority opinion did not go unchallenged. Comparing the decision to that of Dred Scott (1856–1857) on the status of slavery in the Federal territories, Justice Harlan delivered a powerful dissent. The Louisiana law, he declared, "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" (Thomas, ed., Plessy v. Ferguson, p. 53). Despite its guarantee of equal conditions, "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 or assigned to white persons" (Thomas, ed., Plessy v. Ferguson, p. 55). Countering the majority's claim that the crucial issue was whether the law was a reasonable use of a state's police powers, he asserted that the question facing the Court was not reasonableness but constitutionality. According to him, it was unconstitutional because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens" (Thomas, ed., Plessy v. Ferguson, p. 57). He went on to add a warning that, far from promoting the public good, such laws would "arouse race hate" and "perpetuate a feeling of distrust" between the two races. "The thin disguise of 'equal' accommodations for passengers in railroad coaches," he concluded, "will not mislead any one, nor atone for the wrong this day done" (Thomas, ed., Plessy v. Ferguson, p. 59).

As powerful as his dissent was, Harlan was a product of his time. He continued to subscribe to the belief that the white race was the "dominant race" in the country "in prestige, in achievements, in education, in wealth and in power" (Thomas, ed., Plessy v. Ferguson, pp. 56–57). Also, to bolster his argument for blacks, he made statements at the expense of the Chinese, whom he called a "race so different from our own that we do not permit those belonging to it to become citizens of the United States" (Thomas, ed., Plessy v. Ferguson, p. 58).

PLESSY AND LITERATURE

Indirectly, Plessy is related to numerous works of literature written in the era of Jim Crow. It is most directly connected, however, to the works of Tourgée and Charles W. Chesnutt (1858–1932), who was also trained as a lawyer. In an unpublished speech entitled "The Courts and the Negro" (c. 1911), Chesnutt declared:

The opinion in Plessy v. Ferguson is, to my mind, as epoch-making as the Dred Scott decision. Unfortunately, it applies to a class of rights which do not make to the heart and conscience of the nation the same direct appeal as was made by slavery, and has not been nor is it likely to produce any such revulsion of feeling. (Thomas, ed., Plessy v. Ferguson, p. 157)

All three novels that Chesnutt published in his lifetime undertake the difficult task of producing such a feeling. There are a number of allusions to the case in all three works. The most obvious is a scene in The Marrow of Tradition (1901). Forced to ride in a colored car, the book's protagonist, Dr. Miller, watches as "a Chinaman, of the ordinary laundry type, boarded the train, and took his seat in the white car without objection. At another point a colored nurse found a place with her mistress" (p. 59). The detail of the Chinaman shows the care with which Chesnutt read Harlan's dissent. The detail of the nurse alludes to a provision in the 1890 Louisiana law that exempted nurses of children from separate car restrictions. Dr. Miller's response to this exemption is almost exactly the same as Tourgée's response in his brief to the Court: "White people . . . do not object to the negro as a servant. As the traditional negro,—the servant,—he is welcomed; as an equal, he is repudiated" (p. 59). Indeed, since few blacks had white nurses for their children, this provision betrayed the true intent of the law.

Tourgée's literary works are related to the case in different ways. Some were not a response but rather a rehearsal of arguments Tourgée would later make before the Court. For instance, one of his most ingenious claims in Plessy was that the Louisiana law allowed the conductor, without due process, to impair Plessy's reputation as a white man. Since reputation affects earning power, the law deprived Plessy, or at least seven-eighths of him, of the Fourteenth Amendment's protection of property. Tourgée worked out the logic of this argument in his 1890 novel Pactolus Prime, in which the black protagonist advises a young mulatto training for the law to pass as white to increase his earnings. In other works Tourgée did not so much rehearse arguments as complicate them. For instance, Harlan borrowed his famous metaphor of color blindness from Tourgée's brief to the Court, which proclaimed, "Justice is pictured as blind and her daughter, the Law, ought at least be color-blind" (Thomas, ed., Plessy v. Ferguson, p. 29). Tourgée first used the metaphor in his 1880 novel, Bricks without Straw. But in this novel he did not use color blindness as a positive quality that keeps people from discriminating. Instead, he considered it a defect that does not allow people to see the actual condition of freedmen. Describing how the freedman had been granted legal rights, the narrator complains, "Right he had, in the abstract; in the concrete, none. Justice would not hear his voice. The law was still color-blinded by the past" (p. 35).

BIBLIOGRAPHY

Primary Works

Chesnutt, Charles. The Marrow of Tradition. Boston: Houghton Mifflin, 1901.

Thomas, Brook, ed. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford Books, 1997. Includes the Plessy v. Ferguson decision; the dissent of Justice Brown; Charles W. Chesnutt's "The Courts and the Negro"; writings by W. E. B. Du Bois, Booker T. Washington, and others; and press reactions to the decision.

Tourgée, Albion W. Bricks without Straw. New York: Fords, Howard, and Hulbert, 1880.

Tourgée, Albion W. Pactolus Prime. New York: Cassell, 1890.