PLESSY v. FERGUSON 163 U.S. 537 (1896)

until brown v. board of education (1954), Plessy was the constitutional linchpin for the entire structure of Jim Crow in America. Borrowed from lemuel shaw in roberts v. boston (1851), the Plessy Court established the separate but equal doctrine : black persons were not denied the equal protection of the laws safeguarded by the fourteenth amendment when they were provided with facilities substantially equal to those available to white persons.

Florida enacted the first Jim Crow transportation law in 1887, and by the end of the century the other states of the old Confederacy had followed suit. Louisiana's act, which was challenged in Plessy, required railroad companies carrying passengers in the state to have "equal but separate accommodations" for white and colored persons by designating coaches racially or partitioning them. Black citizens, who denounced the innovation of Jim Crow in Louisiana as "unconstitutional, unamerican, unjust, dangerous and against sound public policy," complained that prejudiced whites would have a "license" to maltreat and humiliate inoffensive blacks. Plessy was a test case. Homer A. Plessy, an octoroon (one-eighth black), boarded the East Louisiana Railroad in New Orleans bound for Covington in the same state and sat in the white car; he was arrested when he refused to move to the black car. Convicted by the state he appealed on constitutional grounds, invoking the thirteenth and fourteenth amendments. The Court had already decided in Louisville, New Orleans & Texas Pacific Ry. v. Mississippi, (1890) that Jim Crow cars in intrastate commerce did not violate the commerce clause.

justice john marshall harlan was the only dissenter from the opinion by Justice henry b. brown. That the state act did not infringe the Thirteenth Amendment, declared Brown, "is too clear for argument." The act implied "merely a legal distinction" between the two races and therefore had "no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude." Harlan, believing that state action could have no regard to the race of citizens when their civil rights were involved, would have ruled that compulsory racial segregation violated the Thirteenth Amendment by imposing a badge of servitude.

The chief issue was whether the state act abridged the Fourteenth Amendment's equal protection clause. One reads Brown's opinion with an enormous sense of the feebleness of words as conveyors of thought, because he conceded that the object of the amendment "was undoubtedly to enforce the absolute equality of the two races before the law," yet he continued the same sentence by adding, "but in the nature of things it could not have been intended to abolish distinctions based on color.…" As a matter of historical fact the intention of the amendment was, generally, to abolish legal distinctions based on color. The Court pretended to rest on history without looking at the historical record; it did not claim the necessity of adapting the Constitution to changed conditions, making untenable the defense often heard in more recent years, that the decision fit the times. Plessy makes sense only if one understands that the Court believed that segregation was not discriminatory, indeed that it would violate the equal protection clause if it were discriminatory. Brown conceded that a statute implying a legal inferiority in civil society, lessening "the security of the right of the colored race," would be discriminatory, but he insisted that state-imposed segregation did not "necessarily imply the inferiority of either race to the other.…" There was abundant evidence to the contrary, none of it understandable to a Court that found fallacious the contention that "the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it." That segregation stamped blacks with a badge of inferiority was not fallacious. The fallacy was that only they imputed inferiority to segregation. Jim Crow laws were central to white supremacist thought. That blacks were inherently inferior was a conviction being stridently trumpeted by white supremacists from the press, the pulpit, and the platform, as well as from the legislative halls, of the South. The label, "For Colored Only," was a public expression of disparagement amounting to officially sanctioned civil inequality. By the Court's own reasoning, state acts compelling racial segregation were unconstitutional if inferiority was implied or discrimination intended.

The separate but equal doctrine was fatally vulnerable for still other reasons given, ironically, by the Court in Plessy. It sustained the act as a valid exercise of the police power yet stated that every exercise of that 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." Jim Crow laws were not only annoying and oppressive to blacks; they were not reasonable or for the public good. The Court asserted that the question of reasonableness must be determined with reference "to the established usages, customs and traditions" of the people of the state. The proper standard of reasonableness ought to have been the equal protection clause of the Constitution, not new customs of the white supremacists of an ex-slave state. Even if the custom of segregation had been old, and it was not, the Court was making strange doctrine when implying that discrimination becomes vested with constitutionality if carried on long enough to become customary. Classifying people by race for the purpose of transportation was unreasonable because the classification was irrelevant to any legitimate purpose.

The only conceivable justification for the reasonableness of the racial classification was that it promoted the public good, which Brown alleged. The effects of segregation were inimical to the public good, because, as Harlan pointed out, it "permits the seeds of race hate to be planted under the sanction of law." It created and perpetuated interracial tensions. Oddly the Court made the public-good argument in the belief that the commingling of the races would threaten the public peace by triggering disorders. In line with that assumption Brown declared that legislation is powerless to eradicate prejudice based on hostile "racial instincts" and that equal rights cannot be gained by "enforced commingling." These contentions seem cynical when announced in an opinion sanctioning inequality by sustaining a statute compelling racial segregation. The argument that prejudice cannot be legislated away overlooked the extent to which prejudice had been legislated into existence and continued by Jim Crow statutes.

Harlan's imperishable dissent repeated the important Thirteenth Amendment argument that he had made in the civil rights cases (1883) on badges of servitude. That amendment, he declared, "decreed universal civil freedom in the country." Harlan reminded the Court that in strauder v. west virginia (1880), it had construed the Fourteenth Amendment to mean that "the law in the States shall be the same for the black as for the white" and that the amendment contained "a necessary implication of a positive immunity, or right … 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 rights which others enjoy.…" To Harlan, segregation was discriminatory per se. The state act was unreasonable because segregation was not germane to a legitimate legislative end. He meant that the Fourteenth Amendment rendered the state powerless to make legal distinctions based on color in respect to public transportation. A railroad, he reminded the Court, was a public highway exercising public functions available on the same basis to all citizens. "Our Constitution," said Harlan, "is color-blind, and neither knows nor tolerates classes among citizens." He thought the majority's decision would prove in time to be as pernicious as dred scott v. sandford (1857). As for the separate but equal doctrine, he remarked that the "thin disguise" of equality would mislead no one "nor atone for the wrong this day done."

Plessy cleared the constitutional way for legislation that forced the separation of the races in all places of public accommodation. Most of that legislation came after Plessy. In the civil rights cases, the Court had prevented Congress from abolishing segregation, and in Plessy the Court supported the states in compelling it. Not history and not the Fourteenth Amendment dictated the decision; it reflected its time, and its time was racist. As Justice Brown pointed out, even Congress in governing the district of columbia had required separate schools for the two races. The Court did not invent Jim Crow but adapted the Constitution to it.

Leonard W. Levy
(1986)

Bibliography

Kluger, Richard 1973 Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. Pages 71–83. New York: Knopf.

Oberst, Paul 1973 The Strange Career of Plessy v. Ferguson. Arizona Law Review 15:389–418.

Olson, Otto, ed. 1967 The Thin Disguise: Turning Point in Negro History: Plessy v. Ferguson. New York: Humanities Press.

Woodward, C. Vann 1971 The National Decision Against Equality. Pages 212–233 in Woodward, American Counterpoint: Slavery and Racism in the North-South Dialogue. Boston: Little, Brown.