The Case of the
Louisiana Traveler
BY C. VANN WOODWARD
(Plessy
v. Ferguson, 163 U.S. 537)
Despite
the discouraging decision in the Civil Rights Cases, not all American blacks stood idly by while the country undid the
progress that had been made during the Civil War and Reconstruction. C. Vann
Woodward, professor emeritus of history at Yale University and author of many
important books, including The Strange Career of Jim Crow, describes some of these efforts, culminating
in one of the most decisive cases in the history of the Supreme Court.
Professor Woodward revised this essay when he published it in American
Counterpoint (1971), a collection of his
articles on slavery and racism. With the exception of the first two pages, that
version, minus the annotation, is here reprinted.
In the spring of
1885, Charles Dudley Warner, Mark Twain's friend, neighbor, and onetime
collaborator from Hartford, Connecticut, visited the International Exposition
at New Orleans. He was astonished to find that "white and colored people
mingled freely, talking and looking at what was of common interest," that
blacks "took their full share of the parade and the honors," and that
the two races associated "in unconscious equality of privileges."
During his visit he saw "a colored clergyman in his surplice seated in the
chancel of the most important white Episcopal church in New Orleans, assisting
the service."
It
was a common occurrence in the 1880s for foreign travelers and Northern
visitors to comment, sometimes with distaste and always with surprise, on the
freedom of association between white and black people in the South. Yankees in
particular were unprepared for what they found and sometimes estimated that
conditions below the Potomac were better than those above. Segregation was,
after all, a Yankee invention. It had been the rule in the North before the
Civil War and integration the exception. In the South slavery and, afterward,
its heritage of caste had so far served to define blacks' "place" in
the eyes of the dominant whites. There was discrimination, to be sure, but that
was done on the responsibility of private owners or managers and not by
requirement of law. As Alan Westin points out in the previous chapter, after
the Supreme Court's decision in the Civil Rights Cases federal law gave no protection
from such private acts.
Where
discrimination existed it was often erratic and inconsistent. On trains the
usual practice was to exclude blacks from firstclass or "ladies"
cars but to mix them with whites in second‑class or "smoking"
cars. In the old seaboard states of the South, however, blacks were as free to
ride first class as whites. In no state was segregation on trains complete, and
in none was it enforced by law. The
age of Jim Crow was still to come.
The
first genuine Jim Crow law requiring railroads to carry blacks in separate cars
or behind partitions was adopted by Florida in 1887. Mississippi followed this
example in 1888, Texas in 1889, Louisiana in 1890, Alabama, Arkansas, Georgia,
and Tennessee in 1891, and Kentucky in 1892. The Carolinas and Virginia did not
fall into line until the last three years of the century.
Blacks
watched with despair while the foundations for the Jim Crow system were laid
and the walls of segregation mounted around them. Their disenchantment with the
hopes based on the Civil War amendments and the Reconstruction laws was nearly
complete by 1890. The American commitment to equality, solemnly attested by
three amendments to the Constitution and elaborate civil rights acts, was
virtually repudiated. What had started as a retreat in 1877, when the last
Federal troops were pulled out of the South, had turned into a rout. Northern
radicals and liberals had abandoned the cause; the courts had rendered the
Constitution helpless; the Republican party had forsaken the cause it had
sponsored. A tide of racism was mounting in the country unopposed. Blacks held
no less than five national conventions in 1890 to consider their plight, but
all they could do was to pass resolutions of protest and confess their
helplessness.
The black community
of New Orleans, with its strong infusion of French and other nationalities, was
in a strategic position to furnish leadership for the resistance against
segregation. Within these groups were people of culture, education, and some
wealth, as well as a heritage of several generations of freedom. Unlike the
great majority of blacks, they were city people with an established
professional class and a high degree of literacy. By ancestry as well as by
residence they were associated with Latin cultures at variance with Anglo‑American
ideas of race relations. Their forebears had lived under the Code Noir decreed
for Louisiana by Louis XIV, and their city faced out upon Latin America. When
the Jim Crow car bill was introduced in the Louisiana legislature, New Orleans
blacks organized to fight it.
On
May 24, 1890, a few days after the railroad segregation bill was reported in
the legislature, that body received a memorial entitled "Protest of the
American Citizens' Equal Rights Association of Louisiana Against Class
Legislation." Signed by a committee of seventeen members of the
Association, all apparently black, the memorial denounced the proposed separate‑car
law as "unconstitutional, un‑American, unjust, dangerous and against
sound public policy." Such a law, the protest continued, would be "a
free license to the evilly disposed that they might with impunity insult,
humiliate and otherwise maltreat inoffensive persons, and especially women and
children who should happen to have a dark skin."
Two
of the signers of the memorial, Louis A. Martinet and Rudolphe L. Desdunes,
black members of the French‑speaking community of New Orleans, were to
figure prominently in carrying the fight against the law to the United States
Supreme Court. The son of a Creole father and a slave mother, Martinet was a
young attorney and physician of the city who had been a Democrat but had
recently gone over to the Republicans. In 1889 he founded the New Orleans Crusader, a militant weekly
paper devoted to the cause of black rights. Desdunes, descendant of free blacks
of New Orleans, was a friend of Martinet, a contributor to the Crusader, a poet, and later the author
of a history of his people, Nos Hommes et
Notre Histoire, published in 1911.
Under
the prodding of the Crusader, the
eighteen black members of the legislature, with the aid of railroad interests
who opposed the bill, succeeded in stalling the progress of the separate‑car
legislation for a while. But on July 10, 1890, the assembly passed the bill,
the governor signed it, and it became law. Rightly or wrongly,
The Case of the Louisiana Traveler
Martinet
and Desdunes in separate articles published in the Crusader placed a heavy share of the blame for passage of the bill
on the black Republican members of the legislature. According to Desdunes, they
had been promised votes against the Jim Crow bill in exchange for votes to
overturn the governor's veto of the unpopular Louisiana Lottery bill and these
promises were then broken. "The Lottery bill could not have passed without
their votes," wrote Martinet; "they were completely the masters of
the situation" had they only withheld their support. "But in an evil
moment our Representatives turned their ears to listen to the golden siren,"
and "in emulation of their white colleagues, they did so for a
`consideration.' "
Putting
aside recrimination, Martinet declared: "The Bill is now a law. The next
thing is what we are going to do." He thought there was merit in
Desdunes's idea of boycotting the railroads, but he was more interested in
fighting the case in the courts. "The next thing is . . . to begin to
gather funds to test the constitutionality of this law. We'll make a
case," wrote the young lawyer, "a test case, and bring it before the
Federal Courts on the ground of the invasion of the right of a person to travel
through the States unmolested." Nothing came of the proposal for more than
a year. Then, on September 1, 1891, a group of eighteen "men of
color," all but three of them with French names, such as Esteves,
Christophe, Bonseigneur, arid Labat, including Desdunes and Martinet, formed a
Citizens' Committee to Test the Constitutionality of the Separate Car Law.
Money came in slowly at first, but by October 11, Martinet could write that the
committee had already collected $1,500 and that more could be expected
"after we have the case well started." Even before the money was
collected, Martinet had opened a correspondence about the case with Albion
Winegar Tourgee, of Mayville, New York, and on October 10 the Citizens'
Committee formally elected Tourgee "leading counsel in the case, from
beginning to end, with power to choose associates."
This action called
back into the stream of history a name prominent in the annals of
Reconstruction. Albion W. Tourgee was in 1890 probably the most famous
surviving carpetbagger. His fame was due not so much to his achievements as a
carpetbagger in North Carolina, significant though they were, as to the six
novels about his Reconstruction experience that he had published since 1879.
Born in Ohio, of French Huguenot descent, he had served as an officer in the
Union army and in 1865 moved to Greensboro, North Carolina, to practice law. He
soon became a leader of the Republican party, took a prominent part in writing the
radical constitution of North Carolina, and served as a judge of the superior
court for six years with considerable distinction. On the side he helped
prepare a codification of the state law and a digest of cases.
Tourgke's Southern
enemies questioned his public morals and his political judgment, but not his
intelligence and certainly not his courage. They knew him too well.
"Tourgee was a special case," as Edmund Wilson shrewdly remarked.
"He was a Northerner who resembled Southerners: in his insolence, his
independence, his readiness to accept a challenge, his recklessness and
ineptitude in practical matters, his romantic and chivalrous view of the world
in which he was living .... And he evidently elicited their admiration or he could never have survived as so provocative
an antagonist fourteen years, as he did, in their midst." Although he
entitled his most successful novel on Reconstruction A Fool's Errand, he had by no means lost the
convictions that inspired his crusade for the freedmen of North Carolina, and
he brought to the fight against segregation in Louisiana a combination of zeal
and ability that the Citizens' Committee of New Orleans would have found
impossible at that time to equal.
In a period of
mounting racism, when former friends of the blacks had died off, grown silent,
or changed their views, Tourg6e stood out, as his biographer says, as "the
most vocal; militant, persistent, and widely heard advocate of racial equality
in the United States, black or white. He was the Garrison of a new
struggle," all the more conspicuous because "the times were
wrong." In speeches, articles, books, and after 1888 in his weekly column
in the Chicago Interocean, he kept up
a passionate, polemical, and unrelenting attack on the enemies and wrongs of
blacks. In October 1891, when the New Orleans committee opened correspondence
with him, Tourgee was just beginning a drive to organize a biracial National
Citizens Rights Association (NCRA), with himself as provisional president, for
the defense of black rights. Two or three hundred letters a day were arriving
from recruits, many of them in the South, and within six months he claimed over
one hundred thousand members. George W. Cable of Louisiana, with whom Martinet
and his friends were an touch, served on the executive board of
The Case of the Louisiana Traveler
163
Tourgee's
association, and a local branch of the NCRA was soon established in New
Orleans. Martinet, speaking for the Citizens' Committee on the Jim Crow law,
had ample reason to write Tourgee, "We know we have a friend in you."
He informed his friend that the committee's decision electing him their counsel
was made "spontaneously, warmly, and gratefully."
To assist Tourgee
with local procedure, the committee employed a white Republican lawyer, James
C. Walker. Tourgee served throughout without fee. In keeping with a strategy he
had in mind, his first suggestion was that the person chosen as defendant in
the test case be "nearly white," but that proposal raised some
doubts. "It would be quite difficult," explained Martinet, "to
have a lady too nearly white refused
admission to a `white' car." He pointed out that "people of tolerably
fair complexion, even if unmistakably colored, enjoy here a large degree of
immunity from that accursed prejudice .... To make this case would require some
tact." He would volunteer himself, "but I am one of those whom a fair
complexion favors. I go everywhere, 'in all public places, though wellknown all
over the city, & never is anything said to me. On the cars it would be the
same thing. In fact, color prejudice, in this respect, does not affect me. But,
as I have said, we can try it, with another." An additional point of
delicacy was a jealousy among the darker members of the black community, who
"charged that the people who support our movement were nearly white, or
wanted to pass for white." Martinet discounted the importance of this
feeling, but evidently took it into account. The critics, he said, had
contributed little to the movement.
Railroad officials
proved surprisingly cooperative. The first one approached, however, confessed
that his road "did not enforce the law." It provided the Jim Crow car
and posted the sign required by law, but told its conductors to molest no one
who ignored instructions. Officers of two other railroads "said the law
was a bad and mean one; they would like to, get rid of it," and asked for
time to consult counsel. "They want to help us," said Martinet,
"but dread public opinion." The extra expense of separate cars was
one reason for railroad opposition to the Jim Crow law. It was finally agreed
that a white passenger should object to the presence of a black in a
"white" coach, that the conductor should direct the passenger to go
to the Jim Crow car, and that he should refuse to go. "The conductor will
be instructed not to use force or molest," reported Martinet, "&
our white passenger will swear out the affidavit. This will give us our habeas corpus case, I hope."
On the appointed
day, February 24, 1892, Daniel F. Desdunes, son of Louis Desdunes, bought a
ticket for Mobile, boarded the Louisville & Nashville Railroad, and took a
seat in the white coach. All went according to plan. Desdunes was committed for
trial to the criminal district court in New Orleans and released on bail. On March
21, Walker, the local attorney associated with Tourgee in the case, filed a
plea protesting that his client was not guilty and attacking the
constitutionality of the Jim Crow law. He wrote Tourgee that he intended to go
to trial as early as he could.
Between the lawyers
there was not entire agreement on procedure. Walker favored the plea that the
law was void because it attempted to regulate interstate commerce, over which
the Supreme Court held that Congress had exclusive jurisdiction. Tourgee was
doubtful. "What we want," he wrote Walker, "is not a verdict of
not guilty, nor a defect in this law but a decision whether such a law can be
legally enacted and enforced in any state and we should get everything off the
track and out of the way for such a decision." Walker confessed that
"It's hard for me to give up my pet hobby that the law is void as a
regulation of interstate commerce," and Tourgee admitted that he "may
have spoken too lightly of the interstate commerce matter."
However, the
discussion was ended abruptly and the whole approach altered before Desdunes's
case came to trial by a decision of the state supreme court handed down on May
25. In this case, which was of entirely independent origin, the court reversed
the ruling of a lower court and upheld the Pullman Company's plea that the Jim
Crow law was unconstitutional insofar as it applied to interstate passengers.
Desdunes was an
interstate passenger holding a ticket to Alabama, but the decision was a rather
empty victory. The law still applied to intrastate passengers, and since all
states adjacent to Louisiana had by this time adopted similar or identical Jim
Crow laws, the exemption of interstate passengers was of no great importance to
the blacks of Louisiana and .it left the principle against which they contended
unchallenged. On June 1, Martinet wired Tourgee on behalf of the committee
saying, "Walker wants new
The Case of the Louisiana Traveler
165
case wholly within
state limits," and asked his opinion. Tourgee wired his agreement.
One week later, on
June 7, Homer Adolph Plessy bought a ticket in New Orleans, boarded the East
Louisiana Railroad bound for Covington, Louisiana, and took a seat in the white
coach. Since Plessy later described himself as "seven‑eighths
Caucasian and oneeighth African blood," and swore that "the admixture
of colored blood is not discernible," it may be assumed that the railroad
had been informed of the plan and agreed to cooperate. When Plessy refused to
comply with the conductor's request that he move to the Jim Crow car, he was
arrested by Detective Christopher C. Cain and charged with violating the Jim
Crow car law. Tourgee and Walker then entered a plea before judge John H.
Ferguson of the Criminal District Court for the Parish of New Orleans, arguing
that the law Plessy was charged with violating was null and void because it was
in conflict with the Constitution of the United States. Ferguson ruled against
them. Plessy then applied to the state supreme court for a writ of prohibition
and certiorari and was given a hearing in November 1892. Thus was born the case
of Plessy v. Ferguson.
The court recognized
that neither the interstate commerce clause nor the question of equality of
accommodations was involved and held that the sole question was whether a law requiring
"separate but equal accommodations" violated the Fourteenth
Amendment. Citing numerous decisions of lower federal courts to the effect that
accommodations did not have to be identical to be equal, the court, as
expected, upheld the law. "We have been at pains to expound this
statute," added the court, "because the dissatisfaction felt with it
by a portion of the people seems to us so unreasonable that we can account for
it only on the ground of some misconception."
Chief Justice
Francis Tillou Nicholls, who presided over the court that handed down this
decision in 1892, had signed the Jim Crow act as governor when it was passed in
1890. Previously he had served as the "Redeemer" governor who took
over Louisiana from the carpetbaggers in 1877 and inaugurated a brief regime of
conservative paternalism. In those days, Nicholls had denounced race bigotry,
appointed blacks to office, and attracted many of them to his party, Martinet
among them. Martinet wrote Tourgee that Nicholls in those years had been
"fair & just to colored men" and had, in fact, "secured a
degree of protection to the colored people not enjoyed before under Republican
Governors." But in November 1892, the wave of Populist radicalism was
reaching its crest in the South. Not only were black and white farmers aroused,
but New Orleans workers of both races had just shaken the city by a militant
general strike. Forty‑two union locals with over 20,000 members, who with
their families made up nearly half the population of the city, struck for a ten‑hour
day, overtime pay, union recognition, and a closed shop. Business came to a
halt and bank clearings were cut in half. It has been described by one
historian as "the first general strike in American history to enlist both
skilled and unskilled labor, black and white, and to paralyze the life of a
great city." The governor of the state proclaimed martial law, and under
threat of force the strikers agreed to a weak compromise. This was the
immediate background of the court's decision, though it would probably have
gone the same way anyhow. But the course of Judge Nicholls since 1877 typified
the concessions to racism that conservatives of his class were making‑and
had been making‑to divert white farmers and workers from their course of
rebellion.
Tourgee and Walker
were denied a rehearing Gut obtained a writ of error, which was accepted by the
United States Supreme Court. There ensued a delay of three years before the
Supreme Court got around to hearing the case argued. The delay, oddly enough,
pleased Tourgee. What he most feared was an unfavorable (and irreversible)
decision. He was convinced that time worked in his favor and that with more
years of agitation and crusade by the new National Citizens Rights Association,
the tide of public opinion could be turned. The tide, of course, continued to
mount against his cause. The brief that Albion Tourgee filed with the Supreme
Court in behalf of Plessy in October 1895 breathed a spirit of equalitarianism
that was more in tune with his carpetbagger days than with the prevailing
spirit of the mid‑1890s. And it was no more in accord with the dominant
mood of the Court than was the lone dissenting opinion later filed by Justice
John Marshall Harlan, which echoed many of Tourgee's ringing phrases.
At the very outset,
however, Tourgee advanced an argument in behalf of his client that
unconsciously illustrated the paradox that had from the start haunted the
American attempt to reconcile strong color prejudice with equalitarian
commitments. Plessy, he contended, had been deprived of property without due
process of law. The "property" in question was the "reputation
of being white." It was "the most valuable sort of property, being
the masterkey that unlocks the golden door of opportunity." Intense race
prejudice excluded any man suspected of having Negro blood "from the
friendship and companionship of the white man," and therefore from the
avenues to wealth, prestige, and opportunity. "Probably most white persons
if given the choice," he held, "would prefer death to life in the
United States as colored persons."
Since Tourgee had
proposed that a person ,who was "nearly white" be selected for the
test case, it may be presumed that he did so with this argument in mind. He
doubtless hoped thereby to appeal to the preferential treatment the Supreme
Court notoriously gave to property rights. Of course, this was not a defense of
the blacks against discrimination by whites, but a defense of those
"nearly" white against the penalties of color. From such penalties
blacks admittedly had no defenses. The argument, whatever its merits,
apparently did not impress the Court.
Tourgee went on to
develop more relevant points. He emphasized especially the incompatibility of
the segregation law with the spirit and intent of the Thirteenth and Fourteenth
Amendments, particularly the latter. Segregation perpetuated distinctions
"of a servile character, coincident with the institution of slavery."
He held that "slavery was a caste, a legal condition of subjection to the
dominant class, a bondage quite separable from the incident of ownership."
He scorned the pretense of impartiality and equal protection advanced in
defense of the "separate but equal" doctrine. "The object of
such a law," he declared, "is simply to debase and distinguish against
the inferior race. Its purpose has been properly interpreted by the general
designation of Jim Crow Car' law. Its object is to separate the Negroes from
the whites in public conveyances for the gratification and recognition of the
sentiment of white superiority and white supremacy of right and power." He
asked the members of the Court to imagine the tables turned and themselves
ordered into a Jim Crow car. "What humiliation, what rage would then fill
the judicial mind!" he exclaimed.
The clue to the true
intent of the Louisiana statute was that it did not apply "to nurses
attending the children of the other race." On this clause he observed:
The exemption of
nurses 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 being
intended to promote the general comfort
and moral wellbeing, this act is plainly and evidently intended to promote the happiness
of one class by asserting its supremacy and the inferiority of another class.
Justice is pictured blind and her daughter, the Law, ought at least to be
color-blind.
Looking to the
future, Tourgee asked, "What is to prevent the application of the same
principle to other relations" should the separate‑car law be upheld?
Was there any limit to such laws?
Why not require all
colored people to walk on one side of the street and the whites on the other?
Why not require every white man's house to be painted white and every colored
man's black? Why may it not require every white man's vehicle to be of one
color and compel the colored citizen to use one of different color on the
highway? Why not require every white business man to use a white sign and every
colored man who solicits customers a black one? One side of the street may be
just as good as the other and the dark horses, coaches, clothes and signs may
be as good or better than the white ones. The question is not as to the equality of the privileges enjoyed, but
the right of the State to label one
citizen as white and another as colored in the common enjoyment of a public
highway as this court has often decided a railway to be.
Two other briefs in
support of Plessy's case, both by Southern whites out of the Radical
Reconstruction past, were laid before the court. One was by James C. Walker of
Louisiana, Tourgee's associate in the case. The other was by Samuel F. Phillips
of North Carolina, an old friend and onetime Scallawag colleague of onetime carpetbagger
Tourgee. Thirteen years before the Plessy decision Phillips, then United States
solicitor general, had suffered defeat before the same court in the Civil
Rights Cases of 1883.
The Supreme Court
did not hand down a decision on Plessy v. Ferguson
until 1896. In the four years that had intervened since Homer Plessy was
arrested in New Orleans, the South had quickened the pace of retreat from its
always reluctant commitment to equality and the Fourteenth Amendment, and it
had met with additional acquiescence, encouragements, and approval in the
North. New segregation laws had been adopted. Lynching had reached new peaks.
Frightened by Populist gains in 1892 and 1894, Southern conservatives raised
the cry of black domination and called for white solidarity. Two states had
already disfranchised blacks,‑ and several others, including Louisiana,
were planning to take the same course. In New Orleans, Louis Martinet's valiant
Crusader had folded and his forces
were in disarray. In 1892, Congress defeated the Lodge Bill to extend federal
protection to elections, and in 1894, it wiped from the federal statutes a mass
of Reconstruction laws for the protection of equal rights. And then, on
September 18, 1895, Booker T. Washington delivered a famous speech embodying
the so‑called Atlanta Compromise which was widely interpreted as an
acceptance of subordinate status for blacks by the foremost leader of the race.
Given the strong
tide of reaction in public opinion on race relations, the weakness of white
friends of blacks, and the seeming acquiescence of blacks themselves, it may
well have appeared to the court that it was not within the capabilities of the
judicial process to stem the tide‑even if the court had been so disposed.
If in this case, however, the court acted out of fear of public opinion or
deference to majority will, it had certainly shown no such timidity in defying
public opinion the previous year, 1895, when it handed down a succession of
extremely unpopular opinions in defense of property rights. By 1896 the court
may not have been able to stem the tide of segregation, as it might have
earlier. On the other hand, it was under no obligation or necessity to give
impetus to reaction by the rhetoric in which it couched its opinion.
On May 18, 1896,
justice Henry Billings Brown, of Michigan residence and Massachusetts birth,
delivered the opinion of the court on the case of Plessy v. Ferguson. His, views upholding the separate-but-equal doctrine
were in accord with those of all his brothers, with the possible exception of
Justice Brewer, who did not participate, and the certain exception of Justice
Harlan, who vigorously dissented. In approving the principle of segregation,
justice Brown was also in accord with the prevailing climate of opinion and the
trend of the times. More important for purposes of the decision, his views were
in accord with a host of state judicial precedents, which he cited at length,
as well as with unchallenged practice in many parts of the country, North and
South. Furthermore, there were no federal judicial precedents to the contrary.
Whether Brown was
well advised in citing as his principal authority the case of Roberts v. City of Boston is another
matter. The fame of Chief Justice Lemuel Shaw of the Massachusetts Supreme
Court was undoubtedly great, and in this case he unquestionably sustained the
power of Boston to maintain separate schools for blacks and rejected Charles
Sumner's plea for equality before the law. But that was in 1849, twenty years
before the Fourteenth Amendment, which, as Tourg6e pointed out, should have
made a difference. More telling was Brown's mention of the action of Congress
in establishing segregated schools for the District of Columbia, an action
endorsed by Radical Republicans who had supported the Fourteenth Amendment and
sustained by regular congressional appropriations ever since. Similar laws,
wrote Brown, had been adopted by "the legislatures of many states, and
have been generally, if not uniformly, sustained by the courts."
The validity of such
segregation laws, the justice maintained, depended on their
"reasonableness." And in determining reasonableness, the 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."
In addition to
judicial precedent and accepted practice, justice Brown ventured into the more
uncertain fields of history, sociology, and psychology for support of his opinion.
The framers of the Fourteenth Amendment, he maintained, "could not have
intended to abolish distinctions based upon color, or to enforce social, as
distinguished from political, equality." The issue of "social
equality" was hardly in question here, but there were certainly grounds
for maintaining that the framers of the amendment were under the impression
that they intended to abolish all legal distinctions based on color.
The sociological
assumptions governing Justice Brown's opinion were those made currently
fashionable by Herbert Spencer and William Graham Sumner, but the dictum of
Chief Justice Shaw in 1849 that prejudice "is not created by law, and
probably cannot be changed by law," can hardly be attributed to the
influence of either of those theorists. "We consider the underlying
fallacy of the plaintiff's argument," said Brown,
to consist in the
assumption that the enforced separation of the two races stamps the colored
race with the badge of inferiority. If this is 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 also assumes that social prejudices may
be overcome by legislation, and that equal rights cannot be secured by the
nears except by an enforced commingling of the two races. We cannot accept this
proposition .... Legislation is powerless to eradicate racial instincts, or to
abolish distinctions based upon physical differences, and the attempt to do so
can only result in accentuating the difficulties of the present situation. If
the civil and political rights of both races be equal, one cannot be inferior
to the other civilly or politically. If one race be inferior to the other
socially, the constitution of the United States cannot put them upon the same
plane.
The most fascinating
paradox in American jurisprudence is that the opinions of two sons of
Massachusetts, Shaw and Brown, should have bridged the gap between the radical
equalitarian commitment of 1868 and the reactionary repudiation of that
commitment in 1896, and that a Southerner should have bridged the greater gap
between the repudiation of 1896 and the radical rededication of the
equalitarian idealism of Reconstruction days in 1954. For the dissenting
opinion of justice Harlan, embodying many of the arguments of Plessy's
ex-carpetbagger counsel, foreshadowed the court's eventual repudiation of the
Plessy v. Ferguson decision and the
doctrine of "separate but equal" more than half a century later.
John Marshall Harlan
is correctly described by Robert Cushman as "a Southern gentleman and a
slaveholder, and at heart a conservative." His famous dissent in the Civil
Rights Cases of 1883 had denounced the "subtle and ingenious verbal
criticism" by which "the substance and spirit of the recent
amendments of the Constitution have been sacrificed." In 1896; the
"Great Dissenter" was ready to strike another blow for his adopted
cause.
Harlan held the
Louisiana segregation law in clear conflict with both the Thirteenth and
Fourteenth Amendments. The former "not only struck down the institution of
slavery," but also "any burdens or disabilities that constitute
badges of slavery or servitude." Segregation was just such a burden or
badge. Moreover, the Fourteenth Amendment "added greatly to the dignity
and glory of American citizenship, and to the security of personal
liberty," and segregation denied blacks the equal protection of both
dignity and liberty. "The arbitrary separation of citizens, on the basis
of race, while they are on a public highway," he said, "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."
Harlan was as
scornful as Tourgee had been of the claim that the separate‑car law did
not discriminate against blacks. "Every one knows," he declared, that
its purpose was "to exclude colored people from, coaches occupied by or
assigned to white persons." This was simply a poorly disguised means of
asserting the supremacy of one class of citizens over another. The justice
continued:
But in view of the
constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens: There is no caste here. Our constitution is
color‑blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes no account
of his surroundings, or of his color when his civil rights as guaranteed by the
supreme law of the land are involved . . . . 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 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 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.
If the state may so
regulate the railroads, "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," or, for that matter,
apply the same regulations to streetcars and other vehicles, or to the
courtroom, the jury box, the legislative hall, or any other place of public
assembly? "In my opinion," concluded the Kentuckian, "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."
The country received
the news of the Plessy v. Ferguson decision
with a response that differed from the way it had reacted to the decision in
the Civil Rights Cases thirteen years earlier. In 1883, the news of the court's
action had precipitated hundreds of editorials, some indignant rallies,
congressional bills, a Senate report, and much general debate. Otto H. Olsen
has made a systematic survey of the national reaction to the Plessy decision which indicates that the
news was not received without dissent, that hostility was not confined to the
black press, and that the presumption of consensus about segregation in 1896 is
an exaggeration. Nevertheless, it is clear that a great change had taken place
since 1883 and that the court gave voice to the dominant mood of the country.
Justice Harlan spoke for the convictions of a bygone era.
The racial
aggressions that the justice foresaw came in a flood after the decision of
1896. Even Harlan indicated by his opinion of 1899 in Cummings v. Board of Education that he saw nothing unconstitutional
in segregated public schools. Virginia was the last state in the South to adopt
the separate‑car law, resisting it until 1900. Up to that year, this was
the only law of the type adopted by a majority of the Southern states. But on
January 12, 1900, the editor of the Richmond Times was in full accord with the new spirit when he asserted:
"It is necessary that this principle be applied in every relation of
Southern life. 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 races recognize this fact and accept it, the better
it will be for both."
With incredible
thoroughness the color line was drawn
and the Jim Crow principle applied‑even to areas that Tourgee and Harlan
had suggested a few years before as absurd extremes. In sustaining the
constitutionality of the, new Jim Crow laws, courts universally and confidently
cited Plessy v. Ferguson as the
leading authority. They continued to do so for more than half a century.
On April 4, 1950,
justice Robert H. Jackson wrote old friends in Jamestown, New York, of his
surprise in running across the name of Albion W. Tourgee, once a resident of
the nearby village of Mayville, in connection with segregation decisions then
pending before the Supreme Court. "The Plessy case arose in
Louisiana," he wrote,
and how Tourgee got
into it I have not learned. In any event, I have gone to his old brief, filed
here, and there is no argument made today that he would not make to the Court.
He says, "Justice is pictured blind and her daughter, The Law, ought at
least to be color‑blind." Whether this was original with him, it has
been gotten off a number of times since as original wit. Tourgee's brief was
filed April 6, 1896, and now, just fifty‑four years after, the question
is again being argued whether his position will be adopted and what was a
defeat for him in '96 be a post‑mortem victory.
Plessy v. Ferguson remained the law of
the land for exactly fiftyeight years, from May 18, 1896, to May 17, 1954.
Then, at long last, came a vindication, "a post‑mortem victory"‑not
only for the excarpetbagger Tourgee, but for the ex‑slavehoider Harlan as
well.