Only because of the unanimous, 1954 Supreme Court decision in Brown v. Board of Education has the vast majority of Americans ever heard of Homer Plessy. The 1954 case made Thurgood Marshall famous and his victory was directly responsible for his appointment to the Supreme Court of The United States in 1967, but what do we really know about Plessy?
What I thought I knew was that Plessy—I didn’t know his first name until this week—was that it was a test case challenging segregation in the late-19th century that established the doctrine of Separate but Equal as the law of the land. I was kind of right, but thanks to Louis Menand, writing in The Supreme Court Case That Enshrined White Supremacy in Law: How Plessy v. Ferguson shaped the history of racial discrimination in America for The New Yorker, I am, this morning, significantly less ignorant on the matter.
Menand begins more than 150 years ago:
From the Compromise of 1877, which ended Reconstruction, to the Civil Rights Act of 1964 and the Voting Rights Act of 1965, American race relations were largely shaped by states that had seceded from the Union in 1861, and the elected leaders of those states almost all spoke the language of white supremacy. They did not use dog whistles. “White Supremacy” was the motto of the Alabama Democratic Party until 1966. Mississippi did not ratify the Thirteenth Amendment, which outlawed slavery, until 1995.
How did this happen? How did white people in a part of the country that was virtually destroyed by war contrive to take political control of their states, install manifestly undemocratic regimes in them, maintain those regimes for nearly a century, and effectively block the national government from addressing racial inequality everywhere else? Part of the answer is that those people had a lot of help. Institutions constitutionally empowered to intervene twisted themselves every which way to explain why, in this matter, intervention was not part of the job description.
How did this happen, Menand asks? I know his question is rhetorical here, but I’m still bugged by his asking because, in doing so, he perpetuates the myth that the America Civil War as all about ending slavery and that’s a lie. Yes, the states that would make up the Confederacy seceded—which the our Constitution did not prohibit—but the United States of America did not fight for four bloody years to fee the slaves; the Republicans, lead by their first president, Abraham Lincoln, threw our nation into war to preserve their industrial fortunes. Ending slavery was a most fortuitous afterthought.
After the end of the military occupation of the former states in rebellion—although for a fun exercise, consider that the vast majority of U.S. Army bases in the United States are still in those states—what Neil Young would enshrine (and Lynyrd Skynyrd would challenge) as Southern (White) Man would reasserted dominance through a brier patch of laws that would collectively come to be known as Jim Crow. In 1890, Menand writes:
…a New Orleans lawyer and newspaper editor named Louis Martinet—his mother was born a slave; his father, a Belgian, bought her freedom—formed the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, and set about building a case.
First, Martinet approached the Louisville and Nashville Railroad, which agreed to act as a silent partner. It did not do so out of altruism. From a business point of view, segregation represented a cost—the cost of providing separate facilities for black customers. It would have been cheaper for the railroads if the state had mandated integration instead.
Then Martinet recruited a plaintiff, Daniel Desdunes, a young mixed-race musician whose father was on the Committee. On February 24, 1892, Desdunes boarded a train in New Orleans with a ticket for Mobile, Alabama, and sat in a car reserved for whites. He was duly arrested and charged, his case set to be heard by the criminal-court judge in New Orleans, John Ferguson.
(Sixty-five years later, the National Association for the Advancement of Colored People would enlist the aid of several activists to challenge, and ultimately crush, another Jim Crow law that relegated Negroes to the back of the bus in Selma, Alabama. Prominent among those courageous activists, of course, was Rosa Louise McCauley Parks.)
Martinet lost that first case, but he kept going and found Homer Plessy.
…because of the Louisiana Supreme Court’s ruling, Martinet needed another volunteer scofflaw. Fortunately, he had one at hand: Homer Plessy. Like Desdunes, Plessy was light-skinned—“fair-skinned enough to cause confusion,” as Luxenberg puts it, suggesting that Plessy might have been accustomed to passing, as many nominally “colored” people in New Orleans did. He was twenty-nine years old, married, and in the shoemaking business. Like Desdunes, he followed the script. On June 7, 1892, he boarded a train, one travelling only within the state of Louisiana, and sat in the car for white passengers.
That case made it all the way to the Supreme Court, and again, Martinet lost. This time however, he made history in a way he did not. wish. Menand returns to Steve Luxenberg’s Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation and writes:
…the concept “separate but equal” (the phrase the Court used in Plessy was actually “equal but separate”) was hardly a novelty. It had been a customary way to throw out complaints about segregation since before the Civil War. In Plessy, the Court added a gloss that became almost as famous as the phrase itself: “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,” it said. “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.” As Charles Black, a Yale law professor, wrote of these sentences many years later, “The curves of callousness and stupidity intersect at their respective maxima.”
By enshrining Separate but Equal, Martinet did great damage, but he had to try, albeit with the wrong Supreme Court, as Menand notes:
In Brown v. Board of Education, the Warren Court would cite psychological studies showing that black children are harmed by segregation. That’s not something a nineteenth-century court would have considered appropriate (and some people did not consider it appropriate in Brown). In cases like Plessy v. Ferguson, the Court looked to the text of the statute. If the statute did not prescribe unequal conditions, then, legally, conditions were not unequal.
The Justices in the Plessy case were aware of the repercussions that a robust interpretation of the Fourteenth Amendment would have, of course. Political realities, as always, put a constraint on judicial reasoning. The Supreme Court in the early twentieth century did decide cases in favor of African-American and Asian-American plaintiffs, but it mostly kept its hands off state racial regulations.
The risks were known.
When Louis Martinet formed his Citizens’ Committee to Test the Constitutionality of the Separate Car Law, he wrote to Frederick Douglass and asked for his support. Douglass refused. He said he could not see how the case could help things. Douglass was proved correct. The decision was the worst possible outcome, and the one Plessy’s lawyers had feared. It stamped a constitutional seal of approval on state-mandated racial segregation. The case may not have received much press attention at the time, but over the next fifty years it was cited in thirteen Supreme Court opinions.
Martinet, however, also saw a door closing.
It’s true that in 1890, when the Separate Car Act was passed, Southern race relations were still somewhat in flux. Blacks voted and were politically active. The Louisiana legislature that passed the act had sixteen African-American members. And the composition of the Supreme Court is subject to change; the lawyers for Plessy might have hoped that they would draw a winning hand.
By 1896, though, the endgame was clearly in view. Six years earlier, Mississippi had become the first state to contrive laws to disenfranchise black voters, rather than rely solely on terror and fraud. Other states followed, although extralegal methods remained in use, and, by the end of the century, the work of disenfranchisement was complete. There were 130,334 African-Americans registered to vote in Louisiana in 1896; in 1904, there were 1,342. In Virginia that year, the estimated black turnout in the Presidential election was zero.
There is a invaluable tradition in our court system that the minority opinion in any case carries great judicial weight. In the matter of Plessy v. Ferguson, the vote was 7-to-1 with the lone dissent coming from Associate Justice John Marshall Harlan. Menand continues:
Harlan, the dissenter in Plessy, came from a family with a long history in Kentucky politics. His father was a U.S. congressman; his grandson, also John Marshall Harlan, became an Associate Justice on the Warren Court. Kentucky was a border state—it allowed slavery but did not secede—and Harlan began his career as a pro-slavery Unionist. He led a regiment against rebel forces in Kentucky, but he and his family had owned slaves, and he condemned the Thirteenth Amendment as “the overthrow of Constitutional liberty.”
Harlan was complex, but as Menand notes, he was also prophetic:
Harlan’s Plessy dissent seems unequivocal. “In the eye of the law,” he says, “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.” He saw as well as Douglass did the long-term effect of the Court’s ruling, warning, “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.” When John F. Kennedy addressed the nation on civil rights from the Oval Office, in 1963—the speech that initiated the creation of the Civil Rights Act of 1964—he quoted from Harlan’s dissent.
I like to think that Chief Justice Earl Warren, who engineered the unanimous decision in Brown, reflected on Harlan’s dissent and prophecy.
There is much more in Menand’s article that is tangential, but still cogent and illuminating on the topic of the Jim Crow era in these United States of America. Go. Read. Learn.
Bonus No. 1: They will call Bernie Sanders a kapo.
Bonus No. 2: The lights go on and off in the environment minister’s office, but no one’s there!