Chapter 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.

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.

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

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 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 indiscriminate 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 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 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.


“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 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.