Plessy v. Ferguson

At issue in Plessy v. Ferguson was an 1890 Louisiana law that required passenger trains operating within the state to provide "equal but separate" accommodations for "white and colored races." The Supreme Court upheld the law by a 7–1 vote, in the process putting a stamp of approval on all laws that mandated racial segregation. In his majority opinion, Justice Henry Billings Brown concluded that the Fourteenth Amendment "could not have 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."

Justice John M. Harlan, the lone dissenter, responded that the "arbitrary separation of citizens on the basis of race" was equivalent to imposing a "badge of servitude" on African Americans. He contended that the real intent of the law was not to provide equal accommodations but to compel African Americans "to keep to themselves." This was intolerable because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Nevertheless, Plessy was the law of the land until 1954.

Plessy v. Ferguson

(May 18, 1896.)

No. 210.

1. An act requiring white and colored persons to be furnished with separate accommodations on railway trains does not violate Const. Amend. 13, abolishing slavery and involuntary servitude. 11 South. 948, affirmed.

2. A state statute requiring railway companies to provide separate accommodations for white and colored persons, and making a passenger insisting on occupying a coach or compartment other than the one set apart for his race liable to fine or imprisonment, does not violate Const. Amend. 14, by a abridging the privileges or immunities of United States citizens, or depriving persons of liberty or property without due process of law, or by denying them the equal protection of the laws. 11 South. 948. affirmed.

Mr. Justice Harlan dissenting.

In Error to the Supreme Court of the State of Louisiana.

This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, withstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city of preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit that he was in any sense or in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the Supreme Court of Louisiana.

A.W. Tourgee and S. F. Phillips, for plaintiff in error. Alex. Porter Morse, for defendant in error.

Mr. Justice Brown, after stating the facts in the foregoing language, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts

"that all railway companies 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: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to."

By the second section it was enacted

"that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state."

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employes of railway companies to comply with the act, with a proviso that "nothing in this act shall be construed as applying to nurses attending children of the other race." The fourth section is immaterial.

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand he was forcibly ejected with the aid of a police officer and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the states.

1. That is does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude—a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word "servitude" was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency

So, too, in the Civil Rights Cases, 100 U.S. 3, 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. "It would be running the slavery question into the ground," said Mr. Justice Bradley,

"to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business."

A statute which implies merely a legal distinction between the white and colored races—a distinction which is found in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, 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. 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. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. "The great principle," said Chief Justice Shaw,

"advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security."

It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes, and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia (sections 281–283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 705; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177 Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U.S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that in the selection of jurors to pass upon his life, liberty, and property there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U.S. 370; Bush v. Com., 107 U.S. 110, 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U.S. 565, 16 Sup. Ct 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabins set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else that commerce among the states.

In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of Congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the Fourteenth Amendment was prohibitory upon the states only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the Fourteenth Amendment

"does not invest Congress with power to legislate upon subjects that are within the domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes to redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect."

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry Co. v. State, 133 U.S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a petition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and that being the construction of the state statute by its highest court, was accepted as conclusive. "If it be a matter," said the court (page 591, 133 U.S., and page 348, 10 Sup. Ct.),

"respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate passengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to Congress by the commerce clause"

A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South, 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South. 203, and affirmed by this court in 133 U.S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen, 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King (N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is "property," in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called "property." Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police 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. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco: to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Gems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices 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 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. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448:

"This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed."

Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carrying passengers in that state are required to have separate but equal accommodations for white and colored persons, "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." Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to a colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, buy are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employes of railroad companies to comply with the provisions of the act.

Only "nurses attending children of the other race" are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana person of different races who are not citizens of the United States, the words in the act "white and colored races" necessarily include all citizens of the United States of both races residing in the state. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise "of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned." Mr. Justice Strong, delivering the judgment of this court in Olcott v. Supervisors, 16 Wall. 678, 694, said

"That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?"

So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676:

"Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state."

So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564:

"The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement."

"It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public."

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 take such action based upon it as to him seems proper. But I can 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.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that

"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the sate wherein they reside,"

and that

"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any state 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."

These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that

"the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude."

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure "to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy." They declared, in legal effect, this court has further said

"that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

We also said:

"The words of the amendment, is true, are prohibitory, but they contain a necessary implication of a positive immunity or right, most valuable to the colored—race 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 the rights which others enjoy; and discriminations which are steps towards reducing them to the condition of a subject."

It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race, however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia, 100 U.S. 303, 306, 307; Virginia v. Rives, Id. 313; Ex parte Virginia, Id. 339: Neal v. Delaware, 103 U.S. 370, 386; Bush v. Com., 107 U.S. 110, 116, 1 Sup. Ct. 625. At the present term referring to the previous adjudications, this court declared that

"underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law. Gibson v. State, 162 U.S. 565, 16 Sup. Ct. 904."

The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

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 question 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. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. "Personal liberty," it has been well said, "consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law." 1. Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. 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? Furthermore, 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 answer given at the argument to these question was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questions is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained "the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment." Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each must keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

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, 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. 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 guarantied 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.

It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word "citizens" in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at the time of the adoption of the constitution, they were

"considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them." 17 How. 393, 404.

The recent amendments of the constitution, it was supposed, had eradicated these principles 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, it may well be apprehended, 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, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. 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. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

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.

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. 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.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a "partition" when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a "partition," and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such was as to prevent black jurors from coming too close to their brother jurors of the white race. If the "partition" used in the court room happens to be stationary, provision could be made for screens with openings through which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

I do deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them, are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing here, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the statute 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. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the "People of the United States," for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the Constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Plessy v. Ferguson

Legal decision

By: U.S. Supreme Court

Date: May 18, 1896

Source: Homer A. Plessy v. John H. Ferguson. 163 US 537 (1896).

About the Author: The U.S. Supreme Court, the highest judicial body in the United States, is composed of the chief justice and eight associate justices. All the justices are nominated by the U.S. President and confirmed by the U.S. Senate. In the case of Plessy v. Ferguson, Associate Justice Henry Billings Brown (1836–1913) delivered the majority opinion of the Court.

INTRODUCTION

In the post-Civil War era, southern reconstruction, which included federal military control over portions of the southern United States, the reintegration of former states that made up the Confederate States of America, and the absorption of four million slaves into the American economy and civil society, led to the legal and social enforcement of segregation of the races. While the Thirteenth Amendment to the U.S. Constitution outlawed slavery, the Fourteenth Amendment was required to make former slaves citizens and to provide legal grounds for equal protection rights. Although the Fifteenth Amendment granted all men the right to vote in the United States, a carefully constructed system of legal and social segregation crafted in the southern United States after the Civil War effectively kept many former slaves from voting and enjoying the full benefits and protections of U.S. citizenship.

Andrew Johnson, a former Tennessee Senator, a Democrat, and the Vice-President of Republican President Abraham Lincoln, assumed the presidency after Lincoln's assassination. Though Johnson had been selected as Lincoln's running mate in 1864 because of his anti-secession views, he was in no way a supporter of equal rights for African Americans. A strong supporter of the U.S. Constitution over states' rights, Johnson angered fellow southern legislators; in essence, his views alienated both Republicans and Democrats, northerners and southerners alike. Reconstruction placed certain requirements on Confederate states before their re-admittance to the Union—acceptance of the Fourteenth Amendment, acceptance of African American suffrage, an oath of allegiance, and the establishment of civil governments. Many states balked at the provisions and passed "black codes" which restricted African American labor rights, created forced apprenticeships for black children, and established stringent vagrancy laws that could result in forced labor for African Americans without identification.

In response, the U.S. Congress passed the Reconstruction Act of March 1867, which divided the South into districts, which the U.S. military would occupy. Only those states that accepted the reconstruction provisions would escape military occupation. Southern states complied, in part because of vetoes from President Johnson on such issues as further black rights and restrictions on Confederate leaders holding political office. The battle between Johnson and the U.S. Congress led to his impeachment in 1868, although the Senate did not convict him. Republicans charged that Johnson's role in weakening African American rights in the antebellum South helped to foster racial separation and increased violence aimed at former slaves. In the meantime, southern states continued to pass segregation laws, cementing the system of the racial separation in the South.

In 1890, Louisiana passed a law separating train coaches by color. Homer Plessy, who was one-eighth black, purchased a railway ticket on the East Louisiana Railway on June 7, 1892, with the intent of challenging that law. Plessy belonged to a group called the Citizens' Committee of African Americans and Creoles. The group had hired a lawyer to represent Plessy should charges be brought against him. When Plessy made his racial status known to the conductor and sat in the "whites only" section, he was asked to leave. He refused and was arrested. The case was appealed to the U.S. Supreme Court in 1896.

PRIMARY SOURCE

Mr. Justice BROWN … delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts 'that 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: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.'

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional.

It is claimed by the plaintiff in error that, in a mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police 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.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices 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 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…. Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. 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 judgment of the court below is therefore affirmed.

Mr. Justice HARLAN dissenting.

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 destinies of the two races, in this country, are indis-solubly 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. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country.

I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway. 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 legalgrounds.

I am of opinion that the state 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. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the 'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

[Edited from original language, taken from Westlaw, by project editor.]

SIGNIFICANCE

Plessy's lawyer, white New York attorney Albion Tourgée, had successfully represented black clients in rights cases, and the Citizens' Committee of African Americans and Creoles hired him based on his experience. The Citizens' Committee had been successful in another court case in which a Louisiana district court ruled that segregated railcar laws for interstate transportation were unconstitutional. The group hoped to duplicate that success for intrastate travel as well.

In representing Plessy, Tourgée argued that Louisiana violated both the Thirteenth and the Fourteenth Amendments to the U.S. Constitution when crafting and implementing the 1890 Separate Car Law. Plessy's right to "equal protection" under the law was violated by prohibiting him from using "whites only" railcars, according to Tourgée, while segregation itself implied the inferiority of African Americans, which Tourgée argued violated the Thirteenth Amendment.

The U.S. Supreme Court rejected outright the notion that Homer Plessy's rights had been violated regarding the Thirteenth Amendment, for the railcar law in no way enslaved blacks or returned them to forced servitude; creating an atmosphere of inferiority for one race was not the same as slavery. On the issue of the Fourteenth Amendment, Justice Henry Billings Brown makes the distinction that legal rights are quite different from social policy. According to the court's decision, separate is not inherently unequal. As Justice Brown states in the excerpt above, "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 U.S. Supreme Court ruling affirmed the Louisiana's 1890 Separate Car Law.

Justice John Marshall Harlan, a former slave owner and the only voice of dissent in the seven to one ruling, vehemently disagreed with his fellow justices on the grounds that the law's intent is clear. "What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana."

Homer Plessy paid a twenty-five dollar fine under the terms of the Louisiana law. The 1896 decision set the tone for racial segregation in the United States until the 1954 U.S. Supreme Court decision Brown v. Board of Education, which rejected the "separate but equal" concept. In the intervening fifty-eight years, segregated schools, neighborhoods, restaurants, private clubs, public restrooms, transportation, and other kinds of race-based separations were completely legal in states that enacted such legislation.

FURTHER RESOURCES

Books

Fireside, Harvey. Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism. New York: Carroll & Graf, 2004.

Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004.

Medley, Keith Weldon. We as Freemen: Plessy v. Ferguson. Gretna, La.: Pelican Publishing, 2003.

PLESSY V. FERGUSON

In a seven-to-one decision, with one justice not participating, the United States Supreme Court on 18 May 1896 ruled that an 1890 Louisiana law mandating "equal but separate" accommodations for "whites and "coloreds" on intrastate railroads did not violate the constitutional rights of Homer Plessy (1863–1925), who, because he had one-eighth African ancestry, was considered a "colored" person under state law. The Court's decision allowed states to impose a legal system of racial segregation, until the 1954 ruling of Brown v. Board of Education. The majority decision was written by Justice Henry Billings Brown (1836–1913), born in Massachusetts. The lone dissenter was Justice John Marshall Harlan (1833–1911), a former slave owner and one of two southerners on the Court. Plessy's attorney was Albion W. Tourgée (1838–1905), a novelist and lawyer who was one of the period's most vocal advocates of civil rights for African Americans.

CIVIL RIGHTS AND THE THIRTEENTH AND FOURTEENTH AMENDMENTS

Plessy v. Ferguson tested the limits of the Thirteenth and Fourteenth Amendments, which were added to the Constitution after the Civil War. The Thirteenth Amendment forbids slavery and involuntary servitude, except as punishment for the commission of a crime. Soon after its 1865 ratification, the Court ruled that it also forbids "badges and incidents" of slavery. Ratified in 1868, the Fourteenth Amendment states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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."

These two amendments prompted Congress to pass important civil rights acts in 1866 and 1875. The 1866 Civil Rights Act extended U.S. citizenship to African Americans and others by declaring, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." It also guaranteed "citizens of every race and color" various rights, especially economic ones, such as the right "to make and enforce contracts, to sue, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property" (Thomas, ed., Plessy v. Ferguson, p. 13). The 1875 Civil Rights Act made it illegal to discriminate on the basis of color in theaters, amusement parks, places of public accommodation, public transportation, and so on. The more comprehensive Act of 1875 marked the high point for the legal protection of civil rights in the postbellum period, but it also sparked heated controversy. The Supreme Court resolved the controversy in the Civil Rights Cases of 1883 when an eight-to-one majority, with Justice Harlan again dissenting, declared the Act of 1875 unconstitutional.

In the Civil Rights Cases the U.S. government argued that the Act of 1875 was supported by both the Thirteenth and the Fourteenth Amendments. Racial discrimination, it argued, was a product of the institution of slavery and thus constituted a "badge of servitude." It also claimed that discrimination violated both the due process and the equal protection clauses of the Fourteenth Amendment. Finally, it asserted that freedom from discrimination was one of the privileges and immunities of citizenship protected by the Fourteenth Amendment. The majority of the Court, however, disagreed. It countered the Thirteenth Amendment justification by pointing to laws in the North prior to the Civil War that denied equal rights to free blacks. Racial discrimination, it concluded, was not inextricably linked to the institution of slavery. In denying the government's Fourteenth Amendment justification, the majority looked at the amendment's exact language. The privileges and immunities clause, the due process clause, and the equal protection clause, it noted, place restrictions on states, not individuals. Whereas the Act of 1875 had forbidden private parties from discriminating on the basis of race, the Fourteenth Amendment forbids only state action. Thus the Act of 1875 was not supported by the Constitution.

The Civil Rights Cases set the stage for Plessy. Emboldened by the Court's decision, various states passed laws like the one in Louisiana, mandating separate but equal facilities. Since these laws were clearly the actions of states, not individuals, the question before the Court in Plessy was: How far could a state go in forcing people to be assorted by race?

A COURT CHALLENGE AND A DECISION

Albion W. Tourgée, contacted in September 1891 by New Orleans blacks who wanted to protest the 1890 law, proposed challenging the Jim Crow law with someone of mixed blood, hoping that doing so would point out the arbitrariness of creating mutually exclusive categories of "whites" and "coloreds." Plessy volunteered to test the law. Because he was able to pass as white, he could have ridden in the white car undetected, but Tourgée needed a legal challenge. That challenge received some silent support from railroad companies, which did not like the added expense of providing separate cars. By prearrangement the railroad conductor and a private detective detained Plessy on 7 June 1892 when he sat in the forbidden coach. He was convicted and his case wound through a series of appeals until it reached the Supreme Court four years later.

Tourgée argued that the Louisiana law violated both the Thirteenth and the Fourteenth Amendments. Again the Court disagreed. Relying on the Civil Rights Cases, it dismissed the Thirteenth Amendment appeal with little comment. The Fourteenth Amendment appeal, it admitted, was more complicated. In his decision Brown first addressed intention. "The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, 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" (Thomas, ed., Plessy v. Ferguson, p. 44). He then established that every state has certain police powers that can be used for the public good. The question facing the Court in Plessy, therefore, was whether the Louisiana law was reasonable. "In determining the question of reasonableness," Brown argued, "[a legislature] is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order" (Thomas, ed., Plessy v. Ferguson, p. 50). According to this standard, the Louisiana law was deemed constitutional. Indeed, to stress its reasonableness, Brown cited the antebellum Massachusetts case of Roberts v. City of Boston (1849). Speaking for the Court, Lemuel Shaw, Herman Melville's famous father-in-law, declared that segregated schools did not violate the Massachusetts constitution's guarantee of equality before the law.

It is important to remember that, without the guarantee of equal facilities, the Louisiana law would not have passed constitutional scrutiny. Because a white was forbidden to sit in a black car just as a black was in a white car and because facilities in both were supposed to be equal, whites and blacks were, Brown reasoned, treated equally under the law. Indeed, the "underlying fallacy" of Plessy's argument, he asserted, was 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" (Thomas, ed., Plessy v. Ferguson, p. 50).

A second fallacy of Plessy's argument, according to Brown, was the assumption "that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races." The Constitution, he asserted, guarantees equal civil and political rights, but it cannot create social equality. As to Tourgée's effort to have someone of mixed blood challenge legal assortments by color, Brown concluded that in the federal system states have the right to determine racial classifications.

A DISSENTING OPINION

The majority opinion did not go unchallenged. Comparing the decision to that of Dred Scott (1856–1857) on the status of slavery in the Federal territories, Justice Harlan delivered a powerful dissent. The Louisiana law, he declared, "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" (Thomas, ed., Plessy v. Ferguson, p. 53). Despite its guarantee of equal conditions, "every one knows that the statute in question 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 or assigned to white persons" (Thomas, ed., Plessy v. Ferguson, p. 55). Countering the majority's claim that the crucial issue was whether the law was a reasonable use of a state's police powers, he asserted that the question facing the Court was not reasonableness but constitutionality. According to him, it was unconstitutional because "our Constitution is color-blind, and neither knows nor tolerates classes among citizens" (Thomas, ed., Plessy v. Ferguson, p. 57). He went on to add a warning that, far from promoting the public good, such laws would "arouse race hate" and "perpetuate a feeling of distrust" between the two races. "The thin disguise of 'equal' accommodations for passengers in railroad coaches," he concluded, "will not mislead any one, nor atone for the wrong this day done" (Thomas, ed., Plessy v. Ferguson, p. 59).

As powerful as his dissent was, Harlan was a product of his time. He continued to subscribe to the belief that the white race was the "dominant race" in the country "in prestige, in achievements, in education, in wealth and in power" (Thomas, ed., Plessy v. Ferguson, pp. 56–57). Also, to bolster his argument for blacks, he made statements at the expense of the Chinese, whom he called a "race so different from our own that we do not permit those belonging to it to become citizens of the United States" (Thomas, ed., Plessy v. Ferguson, p. 58).

PLESSY AND LITERATURE

Indirectly, Plessy is related to numerous works of literature written in the era of Jim Crow. It is most directly connected, however, to the works of Tourgée and Charles W. Chesnutt (1858–1932), who was also trained as a lawyer. In an unpublished speech entitled "The Courts and the Negro" (c. 1911), Chesnutt declared:

The opinion in Plessy v. Ferguson is, to my mind, as epoch-making as the Dred Scott decision. Unfortunately, it applies to a class of rights which do not make to the heart and conscience of the nation the same direct appeal as was made by slavery, and has not been nor is it likely to produce any such revulsion of feeling. (Thomas, ed., Plessy v. Ferguson, p. 157)

All three novels that Chesnutt published in his lifetime undertake the difficult task of producing such a feeling. There are a number of allusions to the case in all three works. The most obvious is a scene in The Marrow of Tradition (1901). Forced to ride in a colored car, the book's protagonist, Dr. Miller, watches as "a Chinaman, of the ordinary laundry type, boarded the train, and took his seat in the white car without objection. At another point a colored nurse found a place with her mistress" (p. 59). The detail of the Chinaman shows the care with which Chesnutt read Harlan's dissent. The detail of the nurse alludes to a provision in the 1890 Louisiana law that exempted nurses of children from separate car restrictions. Dr. Miller's response to this exemption is almost exactly the same as Tourgée's response in his brief to the Court: "White people . . . do not object to the negro as a servant. As the traditional negro,—the servant,—he is welcomed; as an equal, he is repudiated" (p. 59). Indeed, since few blacks had white nurses for their children, this provision betrayed the true intent of the law.

Tourgée's literary works are related to the case in different ways. Some were not a response but rather a rehearsal of arguments Tourgée would later make before the Court. For instance, one of his most ingenious claims in Plessy was that the Louisiana law allowed the conductor, without due process, to impair Plessy's reputation as a white man. Since reputation affects earning power, the law deprived Plessy, or at least seven-eighths of him, of the Fourteenth Amendment's protection of property. Tourgée worked out the logic of this argument in his 1890 novel Pactolus Prime, in which the black protagonist advises a young mulatto training for the law to pass as white to increase his earnings. In other works Tourgée did not so much rehearse arguments as complicate them. For instance, Harlan borrowed his famous metaphor of color blindness from Tourgée's brief to the Court, which proclaimed, "Justice is pictured as blind and her daughter, the Law, ought at least be color-blind" (Thomas, ed., Plessy v. Ferguson, p. 29). Tourgée first used the metaphor in his 1880 novel, Bricks without Straw. But in this novel he did not use color blindness as a positive quality that keeps people from discriminating. Instead, he considered it a defect that does not allow people to see the actual condition of freedmen. Describing how the freedman had been granted legal rights, the narrator complains, "Right he had, in the abstract; in the concrete, none. Justice would not hear his voice. The law was still color-blinded by the past" (p. 35).

see alsoCivil Rights; Jim Crow; Jurisprudence

BIBLIOGRAPHY

Primary Works

Chesnutt, Charles. The Marrow of Tradition. Boston: Houghton Mifflin, 1901.

Thomas, Brook, ed. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford Books, 1997. Includes the Plessy v. Ferguson decision; the dissent of Justice Brown; Charles W. Chesnutt's "The Courts and the Negro"; writings by W. E. B. Du Bois, Booker T. Washington, and others; and press reactions to the decision.

Tourgée, Albion W. Bricks without Straw. New York: Fords, Howard, and Hulbert, 1880.

Tourgée, Albion W. Pactolus Prime. New York: Cassell, 1890.

Secondary Works

Crane, Gregg. Race, Citizenship, and Law in American Literature. New York: Cambridge University Press, 2002.

Fiss, Owen M. Troubled Beginnings of the Modern State, 1888–1910. New York: Macmillan, 1993.

Garraty, John A., ed. Quarrels That Have Shaped the Constitution. Rev. ed. New York: Perennial Library, 1987.

Lofgren, Charles A. The "Plessy" Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987.

Olsen, Otto H. Carpetbagger's Crusade: The Life of Albion Winegar Tourgée. Baltimore: Johns Hopkins University Press, 1965.

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

Sundquist, Eric J. To Wake the Nations: Race and the Making of American Literature. Cambridge, Mass.: Harvard University Press, 1993.

Thomas, Brook. American Literary Realism and the Failed Promise of Contract. Berkeley: University of California Press, 1997.

Thomas, Brook. "Plessy v. Ferguson and the Literary Imagination." Cardozo Studies in Law and Literature 9 (1997): 45–65.

Weiner, Mark S. Black Trials: Citizenship from the Beginnings of Slavery to the End of Caste. New York: Alfred A. Knopf, 2004.

Brook Thomas

Plessy v. Ferguson

Legal decision

By: Henry Billings Brown

Date: May 18, 1896

Source: Homer A. Plessy v. John H. Ferguson. 163 U.S. 537. Supreme Court of the United States, May 18, 1896.

About the Author: Supreme Court Justice Henry Billings Brown was appointed to the United States Supreme Court in 1890 by President Benjamin Harrison. Brown wrote the majority opinion for Plessy v. Ferguson, his most famous case, in 1896, ten years before he retired from the Supreme Court at the age of seventy.

INTRODUCTION

Post-Civil War southern society faced daunting social, economic, and political struggles as more than four million slaves, recently freed, looked for acceptance, homes, jobs, and a way to build new lives outside of the slave system. While the Thirteenth Amendment ended slavery and the Fourteenth Amendment granted the newly freed slaves citizenship, the legal rights given to former slaves were sorely tested in the coming decades.

Southern whites used a wide range of laws to restrict the rights of African American citizens. "Black codes" limited the jobs at which they could work, removed parental rights from African-American parents who sent their children to work as apprentices, targeted African American persons with tight vagrancy laws, and created an atmosphere of increased division between the races. African Americans earned less, had fewer educational opportunities, faced higher rates of violence—including organized violence from groups such as the Ku Klux Klan—and experienced racism in social and civil life through the segregation of public venues such as restrooms, public transportation, motels, and restaurants. Northern discrimination against African Americans was also not uncommon, although it tended to be less systematic and pervasive.

Louisiana passed a law segregating train coaches by race in 1890. When an African-American passenger named Homer Plessy, who was one-eighth black, purchased a ticket on the East Louisiana Railway on June 7, 1892, he represented a group called the Citizens' Committee of African Americans and Creoles. The group had been trying to challenge the 1890 law and prepared to provide Plessy with legal representation in the event of his arrest. After informing a conductor that he was one-eighth black, Plessy sat in the "whites only" section of the railcar and refused to leave or to sit elsewhere. Plessy was arrested and later sued with the contention that the Separate Car Act of 1890 was unconstitutional. The state court determined that the railroad company had the right to discriminate on all traffic within the state of Louisiana, and found for the defendant. The case made its way to the United States Supreme Court in 1896 and the resulting decision established the "separate but equal" doctrine.

PRIMARY SOURCE

So, too, in the Civil Rights Cases it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states. The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, 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. 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. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. 'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law… But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.' It was held that the powers of the committee extended to the establish-ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281–283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices 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 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. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: 'this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.' Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. 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.

SIGNIFICANCE

While Plessy's lawyer, New York attorney Albion Tourgée, and the Citizens' Committee of African Americans and Creoles had been successful in previous railroad rights cases, Tourgée's use of the Thirteenth Amendment troubled the justices; they stated that the Separate Car Act did not enforce servitude, or reduce black people to slave status, regardless of issues of perceived inferiority in society. Tourgée argued that Plessy's right to "equal protection" in the Fourteenth Amendment had been violated by the segregation itself; denying Plessy the right to sit in "whites only" sections contradicted the Fourteenth Amendment.

In his majority decision, Justice Henry Billings Brown addressed the Fourteenth Amendment in both legal and social terms; legal rights are qualitatively different from social policy, and thePlessy v. Fergusondecision could not change the fact that, in Justice Brown's words, "When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed. Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation." In other words, the "separate but equal" decision hinged on the legal equality of all races; separate facilities were a matter of social discourse, not court decisions, according to the court. In the end the U.S. Supreme Court ruling declared the Louisiana Separate Car Law constitutional.

Not only did Homer Plessy lose the Supreme Court case, he also paid a $25 fine for violating Louisiana law. For the next fifty-eight years,Plessywas used to reinforce racial segregation both legally and socially. The case was used to support miscegenation laws, segregated school and public facilities, segregated healthcare systems, zoning laws prohibiting African American citizens from renting or purchasing homes in certain areas, and more. The overall result was a system that strictly separated the races in many areas in the United States. And while the doctrine was nominally "separate but equal," in reality it meant that African Americans were singled out for poor treatment, and their rights were routinely suppressed.

Civil rights activists struggled for years against the results of thePlessy v. Fergussondecision. Gradually, they achieved results. The armed forces were integrated in 1948. In 1954,Brown v. Board of Educationdeclared that, in fact, "separate but equal" violated the equal protection clause of the Fourteenth Amendment, forcing the integration of schools and paving the way for further gains. The struggle for integrated public transportation would be sparked by another African American who chose to sit in a "whites only" seat on December 1, 1955: Rosa Parks. Until the 1964 Civil Rights Act, public transportation laws restricting African American riders were legal in many states; Plessywas finally overturned, in full, after sixty-eight years.

FURTHER RESOURCES

Books

Fireside, Harvey. Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism. New York: Carroll & Graf, 2004.

Klarman, Michael. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004.

Medley, Keith Weldon. We As Freemen: Plessy v. Ferguson. Gretna, La.: Pelican Publishing Company, 2003.

Plessy V. Ferguson

HISTORICAL BACKGROUND

THE MAJORITY DECISION

THE DISSENT

BIBLIOGRAPHY

In the 1896 case of Plessy v. Ferguson, the United States Supreme Court upheld the constitutionality of a Louisiana law that required railroads to provide “equal but separate accommodations for the white and colored races.” The case enshrined the constitutional validity of racial segregation laws under what came to be known as the “separate but equal doctrine,” and it permitted the proliferation of mandatory segregation laws across the American South during the late nineteenth and early twentieth centuries. These laws formed a pervasive web of racial rules, known as Jim Crow laws, requiring the separation of the races in public accommodations, schools, hospitals, and even cemeteries. Although most Jim Crow laws called for equal facilities, public accommodations and services under the segregated system were glaringly unequal. In addition, laws requiring racial segregation were extended in many jurisdictions to include not only African Americans and “people of color,” but also Native Americans and people of Chinese or Mexican descent.

The separate but equal doctrine operated to enforce a racial caste system that subordinated and disenfranchised nonwhites, denied them basic public services, isolated them in poor neighborhoods and schools, and limited their employment and educational opportunities. In the 1920s the Plessy case became the target of a litigation campaign by the National Association for the Advancement of Colored People (NAACP), which, after many years of litigation, succeeded in overturning the separate but equal doctrine in the landmark 1954 case of Brown v. Board of Education.

HISTORICAL BACKGROUND

Before the American Civil War, racial distinctions existed in the law of virtually every state and territory of the United States. These laws prohibited or limited the migration of slaves and free Negroes, excluded Negroes from public accommodations, prohibited intermarriage, and imposed various civil disabilities on nonwhites. The codes governing the behavior of slaves in the South were particularly onerous, for they prohibited slaves from such activities as learning to read and write, carrying a weapon, or testifying in court. In the immediate aftermath of the Civil War, Southern legislatures—still controlled by members of the former Confederacy—enacted Black Codes that resurrected much of the prewar slave-control legislation. Radical Republicans in Congress saw the actions of the former Confederate leaders as a threat to the Union and reacted by enacting federal civil rights statutes and extending federal protection to the civil and political rights of the former slaves.

During this postwar period, known as Reconstruction, three amendments were added to the federal Constitution to achieve these goals. The Thirteenth Amendment formally abolished slavery and involuntary servitude, except as punishment for a crime. The Fourteenth Amendment extended federal and state citizenship to all persons born or naturalized in the United States and prohibited the states from enacting any law abridging the privileges and immunities of citizenship. It further declared that the states may not “deprive any person of life, liberty, or property, without due process of law” or deny any person “the equal protection of the laws.” The Fifteenth Amendment promised that the right to vote would not be denied or abridged because of “race, color, or previous condition of servitude.”

While federal troops occupied the South, former slaves voted in large numbers across the states of the former Confederacy and began to enjoy some level of political clout. Blacks served on juries, were elected to political office, and opened schools. In some areas a black middle class began to emerge and some public accommodations were desegregated. In 1877, however, when federal troops were withdrawn from the South following the Hayes-Tilden Compromise, the social and political position of blacks in Southern society began a long decline. White “Redeemers” regained control of Southern legislatures; the Ku Klux Klan enlarged its campaign of terror; the number of lynchings increased; whites used poll taxes, literacy tests, violence and fraud to prevent blacks from voting; and new racial segregation laws began to be passed.

In 1890, when the Louisiana legislature enacted a bill requiring the separation of the races in railroad travel, a group of black and mixed-race citizens in New Orleans determined to test the legislation in court. Led by prominent “persons of color” in the Creole community, notably Louis A. Martinet, they formed a Citizens’ Committee and hired Albion Tourgée, a well-known white lawyer, judge, carpetbagger, and activist for civil rights, to begin planning an appropriate test case.

The test case was initiated on June 7, 1892, when Homer Plessy, an octoroon (a person of one-eighth Negro ancestry), bought a first-class ticket for a trip from New Orleans to Covington, Louisiana, on the East Louisiana Railroad. As arranged in advance, Plessy was arrested when he refused to be seated in the car reserved for the colored race. In the state court, Plessy admitted that he had refused to take the assigned seat, but he asserted that he could not

be punished because the statute was unconstitutional. The Louisiana Supreme Court upheld the statute, and an appeal was taken to the U.S. Supreme Court.

THE MAJORITY DECISION

Before the Supreme Court, Plessy’s lawyers argued that the Louisiana statute violated the Thirteenth Amendment to the Constitution because it was designed to degrade blacks and impose a badge of servitude on them. Further, they claimed that the statute violated the Fourteenth Amendment guarantee of due process, because any passenger wrongly identified as a colored passenger would be deprived of the status and reputation of being white, which were valuable property. They also argued that the statute violated the Fourteenth Amendment equal protection clause by restricting the personal right of citizens to freely enjoy all public privileges and by unjustly discriminating against one class of citizens.

In a seven-to-one ruling against Plessy, the Supreme Court rejected all of Plessy’s arguments. Justice Henry Billings Brown, writing for the majority, found no violation of the Thirteenth Amendment because the statute “merely implies a legal distinction between the white and colored races” and has “no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.” Further, the statute presented no violation of the Fourteenth Amendment due process clause because any white man wrongly assigned to the colored coach could bring an action for damages against the railroad company. Most importantly, the statute did not violate the equal protection clause of the Fourteenth Amendment because it was a reasonable exercise of the state’s police power to legislate for the public good, taking into account “the established usages, customs and traditions of the people.”

In response to the argument that the separation of the races stamps the colored race with a badge of inferiority, Brown wrote, “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.” Finally, Brown rejected the idea that social prejudices may be overcome by legislation, saying, “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.” Brown did not note that members of different races would face criminal penalties if their natural affinities inclined them to sit together on the train.

THE DISSENT

Justice John Marshall Harlan, a former slaveholder from Kentucky who became a Republican and a Union Army Colonel during the Civil War, wrote a lone dissenting opinion. For Harlan, the denial of equal civil rights to freed blacks in the South presented an affront to the federal power embodied in the Civil War Amendments, as well as a threat to the stability of the federal government. The states did not have the power, he asserted, to regulate the use of a public railroad by citizens on the basis of race. If a white man and black man chose to occupy the same public conveyance, he argued, it was their right to do so. The statute thus violated the personal liberty of members of both races.

Harlan rejected the majority’s conclusion that the statute did not discriminate against either race because it applied equally to both, saying “Everyone knows that the statute in question 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.” Harlan concluded that the law impermissibly stamps the colored race with a badge of inferiority. Although Harlan acknowledged the dominance of the white race in prestige, achievements, education, wealth, and power, he denied the authority of the legislature to draft laws that regulated the enjoyment of civil rights on the basis of race. “There is no caste here,” he wrote, “Our Constitution is color-blind and neither knows nor tolerates classes among citizens.” To permit the states to legislate based on race would ignore the fact that “the destinies of the two races, in this country, are indissolubly linked together,” and it would allow the states “to plant the seeds of race hatred under the sanction of law.” Harlan predicted what would happen if similar statutes were enacted across the nation:

Slavery as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, on the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the People of the United States.

Harlan’s dissent accurately predicted the effect of judicial approval of mandatory segregation laws. Such laws proliferated in the wake of Plessy and played an important role in consigning people of color to a second-class version of American citizenship. Harlan’s dissent also became important for its articulation of the concept of the color-blind Constitution. Legal color blindness, in the sense of the elimination of legal distinctions based on race, was a central goal of civil rights activists of the mid-twentieth century. Many believe that the ideal of color blindness still holds promise as a tool to be used in achieving racial equality.

On the other hand, the color-blind principle came to be used in the late twentieth century as a rallying cry for conservatives who sought to dismantle programs designed to remedy past discrimination, such as affirmative action programs or minority set-asides. Race-conscious measures designed to benefit historically disadvantaged racial groups are “color conscious” rather than “color blind.” Thus, color blindness is presently viewed by many as a weapon in a battle against minority efforts to improve equality.

SEE ALSO Color-Blind Racism.

BIBLIOGRAPHY

Kluger, Richard. 1976. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Alfred A. Knopf.

Lofgren, Charles A. 1987. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press.

Stephenson, Gilbert Thomas. 1969 (1910). Race Distinctions in American Law. New York: Negro Universities Press.

Woodward, C. Vann. 1964. “The Case of the Louisiana Traveler.” In Quarrels That Have Shaped the Constitution, edited by John A. Garraty. New York: Harper & Row.

Molly Townes O’Brien