Not all landmark Supreme Court decisions are admirable. Some are
frankly infamous, including Plessy v. Ferguson. In 1896, in Plessy, the
Court constitutionalized racial segregation in the South. The Court’s
opinion plundered Black Americans’ newly confirmed rights “guaranteed”
by the 13 th and 14 th Amendments, relegated them to second-class
citizenship and imposed a legal stamp of inferiority, denying their humanity
and assuring anguish and humiliation.
So much for the myth of wise, dispassionate Supreme Court Justices,
atop Mt. Olympus, upholding the rule of law while dispensing justice in
opinions that reflect unassailable, rigorous reasoning that persuades the
reading republic and distinguishes the High Tribunal. The Plessy decision,
rather, reflected the widespread racism of the day and the animus toward
Blacks harbored by many Americans.
Plessy v. Ferguson was a test case designed to challenge the Jim Crow
transportation law in Louisiana, which required railroad companies carrying
passengers in the state to have “equal but separate accommodations” for
white and “colored” persons. Homer Plessy was an octoroon—one-eighth
black—who boarded a railroad car in New Orleans and sat in a car
reserved for whites. He was arrested when he refused to move to the
“black car.”
Plessy was convicted by a state court and appealed to the US Supreme
Court, asserting violation of his 13 th and 14 th Amendment rights.
The 13 th Amendment, ratified in 1865, had abolished slavery and
involuntary servitude. The 14 th Amendment, ratified in 1868, prohibits states
from “making or enforcing” any law that deprives any “person” equal
protection of the laws, due process of law and the privileges and
immunities of citizens of the United States and the state in which they
reside.
Justice Henry B. Brown wrote for an 8-1 majority, which left Justice John
Marshall Harlan as the lone dissenter. Justice Brown stated that Louisiana
did not violate the 13 th Amendment. He said, “it is too clear for argument”
that the statute implied “merely a legal distinction” between blacks and
whites and thus had “no tendency to destroy the legal equality of the two
races, or reestablish a state of involuntary servitude.” Justice Harlan, in
dissent, wrote that compulsory racial segregation constituted a badge of
servitude and therefore violated the 13 th Amendment.
The principal issue in the case involved the question of whether the
segregation law abridged the 14 th Amendment’s Equal Protection Clause.
Justice Brown’s opinion was grounded on feeble reasoning. He conceded
that the purpose of the amendment “was undoubtedly to enforce the
absolute equality of the two races before the law,” yet added —in the same
sentence—“but in the nature of things it could not have been intended to
abolish distinctions based on color.”
In fact, the historical record demonstrates that the object of the 14 th
Amendment was to abolish legal distinctions based on color. Brown’s
opinion can make sense only if the reader assumes that the Court believed
that segregation was not an exercise in racial discrimination and that
segregation would violate the Equal Protection Clause if it were
discriminatory.
Justice Brown conceded that a statute implying a legal inferiority in
society, diminishing “the security of the right of the colored race” would be
discriminatory, but he declared that the state-mandated segregation did not
“necessarily imply the inferiority of either race to the other.”
Brown and his colleagues in the majority may have been the only white
men in the United States who believed that segregation did not imply the
inferiority of blacks. “If this be so,” Brown wrote, “it is not by reason of
anything found in the act, but solely because the colored race chooses to
put that construction on it.”
Evidence of society’s imputation of the racial inferiority of Black
Americans was everywhere to be seen in the Jim Crow South. Indeed, Jim
Crow laws formed the linchpin of white supremacy: “For Colored Only”
represented a label that captured the public disparagement of blacks. Such
laws reflected state sanction of civil inequality. The feebleness of Brown’s
reasoning was seen in his own acknowledgement that state acts requiring
racial segregation were unconstitutional if inferiority was implied or
discrimination intended.
The Plessy ruling justified the “separate but equal doctrine” as a
legitimate and legal exercise of the state police power, that is, the authority
of the state to pass laws to promote the health, safety, morals and welfare
of the citizenry. While the Court stated that such laws must be “reasonable”
and enacted in “good faith” to promote “the public good, such statutes
clearly humiliated and oppressed black citizens. There was nothing
reasonable or good about Jim Crow laws unless the measuring stick was
that that they served the interests of racists and white supremacists.
Justice Harlan, in his masterful dissent, summed up the harms of
segregation. “It permits the seeds of race hate to be planted under the
sanction of law.” Racism at the founding of America, in the form of slavery,
was our nation’s original sin. The racism of Jim Crow perpetuated racial
tensions. Racism remains an enduring tragedy.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
