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Civil Rights Movement

Plessy v. Ferguson

by James J. Bolner

The Supreme Court’s 1896 decision in Plessy v. Ferguson upheld American apartheid as constitutional if public facilities were “separate but equal.”

On July 10, 1890, the Louisiana General Assembly, over the objection of its eighteen African American members, enacted a law which read, in part:

. . . all railway companies carrying passengers in their coaches 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.

The law empowered train officials to assign passengers to cars; passengers insisting on going into a car set aside for the other race were liable to a twenty-five-dollar fine and twenty days’ imprisonment. In addition, the company could refuse to carry an obstreperous passenger and, if it were sued for doing so, was immune from damages in state courts. A third section outlined the penalties for noncomplying railroads and provided that “nothing in this act shall be construed as applying to nurses attending children of the other race.”

Opposition to the Law

The prominent black community of New Orleans organized to mount a legal attack on the new law. A group calling itself the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, led by Louis Martinet and Alexander A. Mary, organized to handle the litigation and enlisted the services of Albion W. Tourgée. Tourgée was to serve as chief counsel and devote his considerable talents to rallying public opposition to the Jim Crow system typified by the Louisiana law. Martinet engaged James Walker to assist in handling the Louisiana phase of the controversy. Before the first test of the Louisiana law (also featuring an African American who could “pass for white”) could be settled, the Louisiana Supreme Court decided that the 1890 law could not be applied to interstate travelers since it was an unconstitutional regulation of interstate commerce (State ex rel. Abbot v. Hicks, 11 So. 74 in 1892). The Plessy case, then, relitigated the question raised in the 1890 Mississippi railroad case, but as a problem in the constitutional law of civil liberties rather than one of interstate commerce.

The person recruited to test the segregation law was Homer Adolph Plessy, a person of seven-eighths Caucasian and one-eighth African ancestry, in whom “the mixture of colored blood was not discernible.” On June 7, 1892, holding a first-class ticket entitling him to travel on the East Louisiana Railway from New Orleans to Covington, Louisiana, Plessy took a seat in the car reserved for whites. The conductor, assisted by a policeman, forcibly removed Plessy and, charging him with violating the segregation law, placed him in the parish jail. The state prosecuted Plessy in the Orleans Parish criminal district court before Judge John H. Ferguson. Plessy’s plea that the law was unconstitutional was overruled by Ferguson, who directed the defense to address itself to the questions of fact. Having no defense in the facts, Tourgée and Walker appealed Ferguson’s ruling on the law’s constitutionality to the Louisiana Supreme Court by asking that court to issue a writ of prohibition which in effect would have directed Ferguson to reverse his ruling on the constitutional question.

Supreme Court Justice Henry Billings Brown who wrote the decision in Plessy v. Ferguson. (Photo courtesy of Frances Benjamin Johnston)

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On December 19, 1892, Associate Judge Charles E. Fenner of the Louisiana Supreme Court ruled the law constitutional in an opinion which served as a model for that written later by Justice Henry Billings Brown of the U.S. Supreme Court. After a delay of almost four years—a delay that Tourgée encouraged on the grounds that it gave the opponents of segregation needed time—the United States Supreme Court heard the arguments in Plessy’s case on April 13, 1896. On May 18, 1896, Justice Brown handed down the majority opinion, supported by six other justices (Justice David Brewer did not participate, and Justice John Marshall Harlan dissented).

Justice Brown first disposed of Tourgée’s argument that the segregation law was a “badge of servitude,” a vestige of slavery prohibited by the Thirteenth Amendment (1865). Decisions in 1873 (Slaughterhouse cases) and 1883 (Civil Rights cases), wrote Brown, indicated that it was because the Thirteenth Amendment barred only outright slavery and not laws merely imposing “onerous disabilities and burdens” that the movement for the Fourteenth Amendment was successful.

Brown in his opinion delivered a famous statement on the relationship between law, prejudice, and equality:

The [plaintiff’s] argument also assumes that social prejudice 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 on 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.

The law in question, however, specifically interfered with the “voluntary consent of individuals.”

Effects of the Decision

The Court thus sanctioned Jim Crowism. What comfort blacks derived from the case had to be found in the strong dissenting opinion of Justice Harlan, who once again proved himself to be a staunch champion of a broad interpretation of the Reconstruction amendments. Harlan construed the ban on slavery to cover segregation laws; he insisted on Tourgée’s thesis that a railroad was a public highway and that under the Fourteenth Amendment government could make no racial distinctions whether one considered the case under the privileges and immunities, due process, or equal protection clauses of that amendment. Harlan attacked the Court’s reliance on pre-Fourteenth Amendment precedents; his most memorable language appeared in connection with his charge that the majority usurped constitutional power by assuming authority to decide on the “reasonableness” of state social legislation:

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 that 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.

Harlan turned out to be a competent soothsayer:

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.

It would, however, take the general public and the justices of the Supreme Court decades to adopt Harlan’s views and interpretation of the Constitution. Plessy’s strong sanction of segregation in transportation lasted formally until 1950 (Henderson v. United States) and in education until 1954 (Brown v. Board of Education). Antimiscegenation laws were not outlawed until 1967 (Loving v. Virginia).

Further Reading

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Paul G. Kauper’s “Segregation in Public Education: The Decline of Plessy v. Ferguson” (Michigan Law Review 52, 1954) contends that the Court did not deal definitively with the validity of segregation legislation, relying instead on its view of “reasonableness.” Charles A. Lofgren’s The Plessy Case; A Legal-Historical Interpretation (New York: Oxford University Press, 1987) concludes that Plessy did not cause Jim Crow but instead confirmed the American racism of its era. John P. Roche’s “Plessy v. Ferguson: Requiescat in Pace?” (University of Pennsylvania Law Review 103, 1954) asserts that the Plessy decision reflected the political climate of its time and was a judicial attempt to deal with a social and political problem. C. Vann Woodward’s American Counterpoint: Slavery and Racism in the North-South Dialogue (Boston: Little, Brown, 1971) discusses the irony of Justice Brown’s and Harlan’s positions in the light of the origins of the two men. Numerous, more recent, books examining the case include Plessy v. Ferguson: A Brief History with Documents, edited by Brook Thomas (New York: Bedford/St. Martin’s Press, 1996); Harvey Fireside’s Separate and Unequal: Homer Plessy and the Supreme Court Decision That Legalized Racism (New York: Carroll & Graf, 2004); Mark Elliott’s Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (New York: Oxford University Press, 2006); Plessy v. Ferguson: Race and Inequality in Jim Crow America, by William James Hull Hoffer (Lawrence, Kan.: University Press of Kansas, 2012); and Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation, by Steve Luxenberg (New York: Norton, 2019).

See Also: Black Codes; Brown v. Board of Education; Civil Rights Cases; Jim Crow Laws.

Citation Types

Type
Format
MLA 9th
Bolner, James J. "Plessy V. Ferguson." Civil Rights Movement, edited by Michael J. O’Neal, Salem Press, 2020. Salem Online, online.salempress.com/articleDetails.do?articleName=CivRight2e_0260.
APA 7th
Bolner, J. J. (2020). Plessy v. Ferguson. In M. J. O’Neal (Ed.), Civil Rights Movement. Salem Press.
CMOS 17th
Bolner, James J. "Plessy V. Ferguson." Edited by Michael J. O’Neal. Civil Rights Movement. Hackensack: Salem Press, 2020. Accessed May 03, 2024. online.salempress.com.