6
Separate but Not Equal
Plessy v. Ferguson (1896)
On June 7, 1892, Homer Plessy waited at the Press Street railroad depot
in New Orleans. He had a first-class ticket for a thirty-mile trip to Covington,
Louisiana. The train arrived on time at 4:15 in the afternoon, and the nicely
dressed, well-groomed young man entered the first-class carriage, took a seat,
gave his ticket to the conductor, and boldly spoke words that led to his arrest and trial in a court of law. Although he looked white, Homer Plessy announced that he was a “colored man.” According to Louisiana law, he was
an “octoroon”—a person whose ancestry is one-eighth black. The conductor
ordered Plessy to sit in a separate car reserved for nonwhite passengers. When
he refused, the conductor summoned a policeman, who arrested the disobedient passenger for breaking a state law.
Because it was against the law in Louisiana for a “colored” person to sit
with whites in a railroad car, Homer Plessy had become a criminal. So on this
fateful day he did not travel to the town of Covington, the destination printed
on his railway ticket. In fact, Plessy had never intended to go there. Instead, he
started a journey to seek justice through the Louisiana courts, and if necessary
at the U.S. Supreme Court.
Plessy’s trip was part of a carefully made plan to use the highest law of his
country, the U.S. Constitution, to overturn a racist law of his home state, Louisiana. Plessy reached his final destination in 1896, when the U.S. Supreme
Court agreed to decide his case.
In 1890, the Louisiana General Assembly had enacted the Separate Car
Law. According to this statute “all railway companies carrying passengers in
their coaches in this State, shall provide equal but separate accommodations,
for the white, and colored races....No person or persons, shall be permitted to
occupy seats in coaches, other than the ones assigned to them on account of
the race to which they belong.” This law empowered the train conductors “to
assign each passenger to the coach or compartment used for the race in which
such passenger belongs.” If any passengers refused to sit in their assigned
places, they were liable to a fine or imprisonment. There was one exception:
“Nothing in this act shall be construed as applying to nurses attending children of the other race.”
On September 31, 1891, a group of prominent Creole men in New Orleans
formed the Citizens’ Committee to Test the Constitutionality of the Separate
Car Law. The Creoles, people of mixed French, Spanish, and African heritage,
belonged to a community that had originated and thrived in Louisiana long
before the United States purchased that territory from France in 1803. Many
of the older Creoles were well-educated, highly respected members of New
Orleans society, and had not been slaves before the Civil War.
Plessy v. Ferguson (1896)
• 163 U.S. 537 (1896)
• Decided: May 18, 1896
• Vote: 7–1
• Opinion of the Court: Henry B.
Brown
• Dissenting opinion: John Marshall
Harlan I
• Not participating: David Brewer
Separate but Not Equal 53
These Creoles and their children had experienced a large measure of toleration in their dealings with white residents of New Orleans after the Civil War.
Thus they particularly resented the Separate Car Law, claiming that it violated
the Thirteenth and Fourteenth Amendments of the Constitution, and they vowed
to overturn it through legal action in the state or federal courts.
The Thirteenth and Fourteenth Amendments were enacted after the Civil
War to ensure that black Americans had rights equal to those enjoyed by whites.
The Thirteenth Amendment abolished “slavery or involuntary servitude” for
everyone but convicted criminals. The Fourteenth Amendment provided that
“persons born or naturalized in the United States...are citizens of the United
States and of the State wherein they reside.” Further, state governments were
prohibited from violating “the privileges and immunities of citizens of the United States,” and no state could “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.” The Creole leaders of New Orleans did not believe
that Louisiana’s Separate Car Law was compatible with the literal meaning of
the Thirteenth and Fourteenth Amendments.
Homer Plessy’s case was not the first one planned by the Citizens’ Committee to test the constitutional validity of the Separate Car Law. Rather, Daniel
Desdunes, a young Creole man whose ancestry was one-eighth African and seven-eighths European, was the voluntary protagonist in the first case contrived by
the committee. On February 24, 1892, Desdunes boarded a train in New Orleans
bound for Mobile, Alabama. He took a seat in the white coach, announced his
identity as a colored man, and was arrested for violating the state law. His case
was dismissed when the Louisiana Supreme Court ruled that the Separate Car
Law could not constitutionally be enforced against passengers traveling across
state boundaries, because only the Congress had power under the Constitution’s
commerce power (Article 1, Section 8) to regulate interstate transportation.
Plessy, however, had been an intrastate passenger when he was arrested, and his
case went forward.
The Citizens’ Committee invited Albion Tourgée, a New York State resident
and a nationally recognized advocate for the rights of black Americans, to join
local attorney James C. Walker as counsel for Daniel Desdunes in the first case
to test the Separate Car Law. Tourgée and Walker also represented Plessy.
The issue in Plessy’s case was straightforward. Did the Louisiana Separate
Car Law violate the rights guaranteed to Plessy by the Thirteenth and Fourteenth
Amendments? Judge John Howard Ferguson presided at the state district court
that originally heard Plessy’s case and ruled against him. Plessy appealed to the
Louisiana Supreme Court, which ruled that the state government had the power
to regulate transportation strictly within the state’s borders and that “separate
but equal” accommodations for persons of different races did not violate the
U.S. Constitution. The U.S. Supreme Court accepted Plessy’s appeal of the
state’s decision, and the federal case of Plessy v. Ferguson was decided nearly
four years later, because Plessy’s lawyer, Albion Tourgée, acted very slowly to
move the case forward.
At first, Tourgée thought the Court’s delay in hearing arguments on Plessy’s
case would be a tactical advantage. He hoped to use the time to influence public sentiment in support of his client. But this strategy did not succeed because
the tide of public opinion was turning strongly against him. The Louisiana law
mandating racial segregation in railroad cars was only one of many instances of
legalized racial discrimination against black Americans in southern states that
54 The Pursuit of Justice
were enacted after the federal government abandoned its post–Civil War policies to protect formerly enslaved persons. Most pronounced in the South, this
anti–African American trend was also visible in other sections of the country.
For example, there were unchallenged laws segregating blacks and whites on
public conveyances not only in Florida and Alabama, but also in Pennsylvania,
among other places throughout the country. And racial segregation in public
schools, which had long existed under the authority of Congress in the District
of Columbia, was increasingly practiced not only in the South but in other regions, too. Thus, the social context within which the Court would make its decision seemed quite unfavorable to Plessy’s cause.
Despite the long odds against him, Albion Tourgée was determined to demonstrate the validity of his client’s case. So on April 13, 1896, Tourgée joined
Samuel F. Phillips, an old friend and prominent Washington, D.C., lawyer, to
present oral arguments for Plessy to the Supreme Court.
Lawyers for Louisiana had maintained that the Separate Car Law was a
constitutional exercise of the state’s power to maintain public health and safety
reserved to it by the U.S. Constitution’s Tenth Amendment. They claimed that
indiscriminant mingling of blacks and whites in public conveyances was a potential threat to the public good that the state was obligated and authorized to
maintain. Furthermore, they insisted, their state’s law was consistent with the
Fourteenth Amendment’s equal protection clause because the separate accommodations for blacks and whites were equal. As “separate but equal” was the
foundation of the state’s argument, the case became known by this phrase.
Tourgée and Phillips countered their adversaries’ argument by stressing
the incompatibility of the Louisiana Separate Car Law with the Thirteenth and
Fourteenth Amendments. The state statute, Tourgée claimed, violated the Thirteenth Amendment because it was “designed to discriminate against the colored
citizens” and thereby “reduce them to a dependent and servile condition.” Racial
segregation, argued Tourgée, was “coincident with the institution of slavery”
because “slavery was a caste, a legal condition of subjection to the dominant
class.” He said the Separate Car Law established a new type of “bondage quite
separable from the incident of ownership.”
Tourgée scorned the Louisiana law’s claim of “equal but separate accommodations” for the segregated passengers and asserted that any legally enforced
form of racial separation violated the equal protection clause of the Fourteenth
Amendment. The intention of the Louisiana law, argued Tourgée, was not to
promote public health and safety, as the statute’s advocates claimed, but to
promote a sense of superiority among whites at the expense of blacks. He exclaimed, “Justice is pictured as blind and her daughter, the law, ought at least to
be color-blind.” Thus, Tourgée claimed, laws requiring racial discrimination are
inherently unjust and unconstitutional.
To the dismay of Albion Tourgée, Homer Plessy, and the New Orleans Citizens’ Committee, the Supreme Court ruled against them. In his opinion for the
Court’s majority, Justice Henry B. Brown first of all narrowly interpreted the
Thirteenth Amendment by holding that it prohibited only the institution of slavery and was not relevant to other race-based distinctions. Brown said that a law
“which implies merely a legal distinction between the white and colored races...
has no tendency to...re-establish a state of involuntary servitude.” Thus, according to Brown, the Separate Car Law did not violate the Thirteenth Amendment.
Next, Justice Brown rejected the claim that Louisiana had violated the
Fourteenth Amendment’s requirement for “equal protection of the laws.” He
Separate but Not Equal 55
acknowledged that the purpose of the amendment was “to enforce the absolute
equality of the two races before the law.” But, he added, “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.” Thus, Brown made a sharp distinction between social
and political equality and argued that a state law providing “separate but equal”
facilities for blacks and whites did not violate political equality, or the equal status of citizens, and therefore was compatible with the Fourteenth Amendment.
He noted, “the establishment of separate schools for white and colored children [in several southern and northern states], which has been held to be a valid
exercise of the legislative power even by courts of States [such as Massachusetts] where the political rights of the colored race have been longest and most
earnestly enforced.” By this standard, argued Brown, “we cannot say that a law
which authorizes or even requires the separation of the two races in public conveyances is unreasonable.”
According to Justice Brown, it was a reasonable policy for the public good
to provide “separate but equal” facilities for persons of different races. After all,
both whites and blacks were equally prohibited from sitting in the railway cars
assigned to the other race. And the different carriages, though separate, equally
accommodated the needs of each racial group. He emphatically rejected the
claim that racially segregated facilities implied inferiority or superiority of one
race relative to the other. Justice Brown wrote,
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....
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.
Justice Brown maintained that the Fourteenth Amendment was not intended
to enforce social equality or to abolish distinctions based on race. He wrote, “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.” In conclusion, he justified his interpretation of the Fourteenth Amendment with this statement: “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 lone dissenter in this case, Justice John Marshall Harlan, strongly criticized the opinion of the Court. Although he had been a slaveholder in Kentucky
before and during the Civil War, Harlan subsequently developed an unyielding
commitment to the equal rights of blacks and whites, which were guaranteed by
the Constitution.
Taking a cue from Tourgée’s presentation to the Court, Justice Harlan wrote,
“Our Constitution is color-blind, and neither knows nor tolerates classes among
citizens.” He insisted that the “separate but equal” doctrine established by the
Court in the Plessy case was not compatible with the Fourteenth Amendment’s
guarantees of personal liberty and equal legal protection. Finally, he criticized
56 The Pursuit of Justice
Justice Brown’s attempt to justify the Separate Car Law as reasonable. Harlan
said it is the responsibility of the political branches of government to determine
whether a public policy is reasonable. By contrast, it is the Court’s duty to determine the constitutionality of statutes, not their reasonableness, and the state law
at issue, he held, was manifestly at odds with the words of the
U.S. Constitution.
Justice Harlan presciently declared that the Plessy decision would become
a precedent in support of racial segregation. For the next fifty-eight years,
the “separate but equal” doctrine established by the Court in Plessy v. Ferguson was “settled law,” that is, it was a well-established precedent that guided
subsequent decisions of the Court. Consequently, the precedent set by Plessy
bolstered pervasive state-ordered racial segregation throughout the South and in
some other parts of the country as well.
It seems incredible to us today to recall that state laws required black persons to use separate toilets, water fountains, streetcars, and waiting rooms. They
had to attend separate schools and were segregated from whites in prisons, hospitals, hotels, restaurants, parks, theaters, cemeteries, and other public facilities.
“Separate but equal” was the law, but the reality of racial segregation usually
was very unequal facilities for black Americans, which handicapped them severely in all facets of life, irrespective of the Constitution’s lofty guarantees of
equal rights to liberty and justice for all. Legal challenges to racial segregation
were defeated in the courts, where the Plessy precedent prevailed until it was
overturned unanimously by the U.S. Supreme Court in the 1954 case of Brown
v. Board of Education.
Homer Plessy, although he courageously resisted an unjust law, failed to
achieve justice in his own time. And John Marshall Harlan, strong and brave in
his sharp dissent against a popular Supreme Court opinion, endured public contempt and repudiation. In the long term, however, they inspired others to fulfill
their common quest for equal justice under the Constitution; and today Plessy
and Harlan, not their adversaries, have an honored place in our history.
Separate but Not Equal 57
“Our Constitution is Color-Blind”
Justice John Marshall Harlan wrote one of the greatest dissenting opinions in the
history of the Supreme Court in response to the majority’s decision in Plessy v. Ferguson.
This former slaveholder from Kentucky fervently defended the constitutional rights of black
Americans, many of whom had once been slaves. A product of his times, Harlan harbored
racially biased opinions, as certain sentences in this dissenting opinion indicate. But his
commitment to constitutional principles and values, the very idea of equal rights under the
law, superseded any reservations he may have held about the capabilities or character of
nonwhite Americans. Most of all, he rejected the very idea of a color-conscious interpretation of the U.S. Constitution. Rather, he believed that racial identity was not relevant to
constitutional guarantees of civil rights and liberties.
Justice Harlan predicted accurately the deplorable consequences of the Court’s decision in the Plessy case, foreseeing that this decision one day would be viewed almost as
negatively as the Court’s 1857 ruling in Scott v. Sandford. Harlan also was well aware
that the majority of Americans in his time disagreed with him on issues of race relations,
but he looked beyond the responses of his contemporaries. His dissent was an appeal to
Americans of the future, who might be sufficiently inspired and instructed by his words to
correct the mistakes of the past and achieve durable justice in the relationships of black
and white Americans.
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 to
take such action based upon it as to him seems proper. But I deny that any legislative body or judicial
tribunal may have regard to the race of citizens when
the civil rights of those citizens are involved. Indeed,
such legislation as that here in question, is inconsistent not only with that equality of rights which
pertains to citizenship, National and State, but with
the personal liberty enjoyed by every one within the
United States....
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 questions 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
58 The Pursuit of Justice
occupied by or assigned to white persons....The fundamental objection, therefore, to the statute is that it
interferes with the personal freedom of citizens....
If a State can prescribe, as a rule of civil conduct,
that whites and blacks shall not travel as passengers
in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to
compel white citizens to keep on one side of a street
and black citizens to keep on the other? Why may
it not, upon like grounds, punish whites and blacks
who ride together in street cars or in open vehicles on
a public road or street? Why may it not require sheriffs to assign whites to one side of a court-room and
blacks to the other? And why may it not also prohibit
the commingling of the two races in the galleries of
legislative halls or in public assemblages convened
for the consideration of the political questions of the
day? Further, if this statute of Louisiana is consistent
with the personal liberty of citizens, why may not the
State require the separation in railroad coaches of native and naturalized citizens of the United States, or
of Protestants and Roman Catholics?...
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in
achievements, in education, in wealth and in power....
But in view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class or 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. 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....
The recent amendments of the Constitution [Thirteenth, Fourteenth, and Fifteenth], it was supposed,
had eradicated these principles [of the Dred Scott
decision] 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...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....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....
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.
. . . 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....
I am of opinion that the statue 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....
For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of
the majority.
Separate but Not Equal 59