The Case of the Louisiana Traveler
BY C. VANN WOODWARD
(Plessy v. Ferguson, 163 U.S. 537)
Despite the discouraging decision in the Civil Rights Cases, not all American blacks stood idly by while the country undid the progress that had been made during the Civil War and Reconstruction. C. Vann Woodward, professor emeritus of history at Yale University and author of many important books, including The Strange Career of Jim Crow, describes some of these efforts, culminating in one of the most decisive cases in the history of the Supreme Court. Professor Woodward revised this essay when he published it in American Counterpoint (1971), a collection of his articles on slavery and racism. With the exception of the first two pages, that version, minus the annotation, is here reprinted.
In the spring of 1885, Charles Dudley Warner, Mark Twain's friend, neighbor, and onetime collaborator from Hartford, Connecticut, visited the International Exposition at New Orleans. He was astonished to find that "white and colored people mingled freely, talking and looking at what was of common interest," that blacks "took their full share of the parade and the honors," and that the two races associated "in unconscious equality of privileges." During his visit he saw "a colored clergyman in his surplice seated in the chancel of the most important white Episcopal church in New Orleans, assisting the service."
It was a common occurrence in the 1880s for foreign travelers and Northern visitors to comment, sometimes with distaste and always with surprise, on the freedom of association between white and black people in the South. Yankees in particular were unprepared for what they found and sometimes estimated that conditions below the Potomac were better than those above. Segregation was, after all, a Yankee invention. It had been the rule in the North before the Civil War and integration the exception. In the South slavery and, afterward, its heritage of caste had so far served to define blacks' "place" in the eyes of the dominant whites. There was discrimination, to be sure, but that was done on the responsibility of private owners or managers and not by requirement of law. As Alan Westin points out in the previous chapter, after the Supreme Court's decision in the Civil Rights Cases federal law gave no protection from such private acts.
Where discrimination existed it was often erratic and inconsistent. On trains the usual practice was to exclude blacks from firstclass or "ladies" cars but to mix them with whites in second‑class or "smoking" cars. In the old seaboard states of the South, however, blacks were as free to ride first class as whites. In no state was segregation on trains complete, and in none was it enforced by law. The age of Jim Crow was still to come.
The first genuine Jim Crow law requiring railroads to carry blacks in separate cars or behind partitions was adopted by Florida in 1887. Mississippi followed this example in 1888, Texas in 1889, Louisiana in 1890, Alabama, Arkansas, Georgia, and Tennessee in 1891, and Kentucky in 1892. The Carolinas and Virginia did not fall into line until the last three years of the century.
Blacks watched with despair while the foundations for the Jim Crow system were laid and the walls of segregation mounted around them. Their disenchantment with the hopes based on the Civil War amendments and the Reconstruction laws was nearly complete by 1890. The American commitment to equality, solemnly attested by three amendments to the Constitution and elaborate civil rights acts, was virtually repudiated. What had started as a retreat in 1877, when the last Federal troops were pulled out of the South, had turned into a rout. Northern radicals and liberals had abandoned the cause; the courts had rendered the Constitution helpless; the Republican party had forsaken the cause it had sponsored. A tide of racism was mounting in the country unopposed. Blacks held no less than five national conventions in 1890 to consider their plight, but all they could do was to pass resolutions of protest and confess their helplessness.
The black community of New Orleans, with its strong infusion of French and other nationalities, was in a strategic position to furnish leadership for the resistance against segregation. Within these groups were people of culture, education, and some wealth, as well as a heritage of several generations of freedom. Unlike the great majority of blacks, they were city people with an established professional class and a high degree of literacy. By ancestry as well as by residence they were associated with Latin cultures at variance with Anglo‑American ideas of race relations. Their forebears had lived under the Code Noir decreed for Louisiana by Louis XIV, and their city faced out upon Latin America. When the Jim Crow car bill was introduced in the Louisiana legislature, New Orleans blacks organized to fight it.
On May 24, 1890, a few days after the railroad segregation bill was reported in the legislature, that body received a memorial entitled "Protest of the American Citizens' Equal Rights Association of Louisiana Against Class Legislation." Signed by a committee of seventeen members of the Association, all apparently black, the memorial denounced the proposed separate‑car law as "unconstitutional, un‑American, unjust, dangerous and against sound public policy." Such a law, the protest continued, would be "a free license to the evilly disposed that they might with impunity insult, humiliate and otherwise maltreat inoffensive persons, and especially women and children who should happen to have a dark skin."
Two of the signers of the memorial, Louis A. Martinet and Rudolphe L. Desdunes, black members of the French‑speaking community of New Orleans, were to figure prominently in carrying the fight against the law to the United States Supreme Court. The son of a Creole father and a slave mother, Martinet was a young attorney and physician of the city who had been a Democrat but had recently gone over to the Republicans. In 1889 he founded the New Orleans Crusader, a militant weekly paper devoted to the cause of black rights. Desdunes, descendant of free blacks of New Orleans, was a friend of Martinet, a contributor to the Crusader, a poet, and later the author of a history of his people, Nos Hommes et Notre Histoire, published in 1911.
Under the prodding of the Crusader, the eighteen black members of the legislature, with the aid of railroad interests who opposed the bill, succeeded in stalling the progress of the separate‑car legislation for a while. But on July 10, 1890, the assembly passed the bill, the governor signed it, and it became law. Rightly or wrongly,
The Case of the Louisiana Traveler
Martinet and Desdunes in separate articles published in the Crusader placed a heavy share of the blame for passage of the bill on the black Republican members of the legislature. According to Desdunes, they had been promised votes against the Jim Crow bill in exchange for votes to overturn the governor's veto of the unpopular Louisiana Lottery bill and these promises were then broken. "The Lottery bill could not have passed without their votes," wrote Martinet; "they were completely the masters of the situation" had they only withheld their support. "But in an evil moment our Representatives turned their ears to listen to the golden siren," and "in emulation of their white colleagues, they did so for a `consideration.' "
Putting aside recrimination, Martinet declared: "The Bill is now a law. The next thing is what we are going to do." He thought there was merit in Desdunes's idea of boycotting the railroads, but he was more interested in fighting the case in the courts. "The next thing is . . . to begin to gather funds to test the constitutionality of this law. We'll make a case," wrote the young lawyer, "a test case, and bring it before the Federal Courts on the ground of the invasion of the right of a person to travel through the States unmolested." Nothing came of the proposal for more than a year. Then, on September 1, 1891, a group of eighteen "men of color," all but three of them with French names, such as Esteves, Christophe, Bonseigneur, arid Labat, including Desdunes and Martinet, formed a Citizens' Committee to Test the Constitutionality of the Separate Car Law. Money came in slowly at first, but by October 11, Martinet could write that the committee had already collected $1,500 and that more could be expected "after we have the case well started." Even before the money was collected, Martinet had opened a correspondence about the case with Albion Winegar Tourgee, of Mayville, New York, and on October 10 the Citizens' Committee formally elected Tourgee "leading counsel in the case, from beginning to end, with power to choose associates."
This action called back into the stream of history a name prominent in the annals of Reconstruction. Albion W. Tourgee was in 1890 probably the most famous surviving carpetbagger. His fame was due not so much to his achievements as a carpetbagger in North Carolina, significant though they were, as to the six novels about his Reconstruction experience that he had published since 1879. Born in Ohio, of French Huguenot descent, he had served as an officer in the Union army and in 1865 moved to Greensboro, North Carolina, to practice law. He soon became a leader of the Republican party, took a prominent part in writing the radical constitution of North Carolina, and served as a judge of the superior court for six years with considerable distinction. On the side he helped prepare a codification of the state law and a digest of cases.
Tourgke's Southern enemies questioned his public morals and his political judgment, but not his intelligence and certainly not his courage. They knew him too well. "Tourgee was a special case," as Edmund Wilson shrewdly remarked. "He was a Northerner who resembled Southerners: in his insolence, his independence, his readiness to accept a challenge, his recklessness and ineptitude in practical matters, his romantic and chivalrous view of the world in which he was living .... And he evidently elicited their admiration or he could never have survived as so provocative an antagonist fourteen years, as he did, in their midst." Although he entitled his most successful novel on Reconstruction A Fool's Errand, he had by no means lost the convictions that inspired his crusade for the freedmen of North Carolina, and he brought to the fight against segregation in Louisiana a combination of zeal and ability that the Citizens' Committee of New Orleans would have found impossible at that time to equal.
In a period of mounting racism, when former friends of the blacks had died off, grown silent, or changed their views, Tourg6e stood out, as his biographer says, as "the most vocal; militant, persistent, and widely heard advocate of racial equality in the United States, black or white. He was the Garrison of a new struggle," all the more conspicuous because "the times were wrong." In speeches, articles, books, and after 1888 in his weekly column in the Chicago Interocean, he kept up a passionate, polemical, and unrelenting attack on the enemies and wrongs of blacks. In October 1891, when the New Orleans committee opened correspondence with him, Tourgee was just beginning a drive to organize a biracial National Citizens Rights Association (NCRA), with himself as provisional president, for the defense of black rights. Two or three hundred letters a day were arriving from recruits, many of them in the South, and within six months he claimed over one hundred thousand members. George W. Cable of Louisiana, with whom Martinet and his friends were an touch, served on the executive board of
The Case of the Louisiana Traveler
Tourgee's association, and a local branch of the NCRA was soon established in New Orleans. Martinet, speaking for the Citizens' Committee on the Jim Crow law, had ample reason to write Tourgee, "We know we have a friend in you." He informed his friend that the committee's decision electing him their counsel was made "spontaneously, warmly, and gratefully."
To assist Tourgee with local procedure, the committee employed a white Republican lawyer, James C. Walker. Tourgee served throughout without fee. In keeping with a strategy he had in mind, his first suggestion was that the person chosen as defendant in the test case be "nearly white," but that proposal raised some doubts. "It would be quite difficult," explained Martinet, "to have a lady too nearly white refused admission to a `white' car." He pointed out that "people of tolerably fair complexion, even if unmistakably colored, enjoy here a large degree of immunity from that accursed prejudice .... To make this case would require some tact." He would volunteer himself, "but I am one of those whom a fair complexion favors. I go everywhere, 'in all public places, though wellknown all over the city, & never is anything said to me. On the cars it would be the same thing. In fact, color prejudice, in this respect, does not affect me. But, as I have said, we can try it, with another." An additional point of delicacy was a jealousy among the darker members of the black community, who "charged that the people who support our movement were nearly white, or wanted to pass for white." Martinet discounted the importance of this feeling, but evidently took it into account. The critics, he said, had contributed little to the movement.
Railroad officials proved surprisingly cooperative. The first one approached, however, confessed that his road "did not enforce the law." It provided the Jim Crow car and posted the sign required by law, but told its conductors to molest no one who ignored instructions. Officers of two other railroads "said the law was a bad and mean one; they would like to, get rid of it," and asked for time to consult counsel. "They want to help us," said Martinet, "but dread public opinion." The extra expense of separate cars was one reason for railroad opposition to the Jim Crow law. It was finally agreed that a white passenger should object to the presence of a black in a "white" coach, that the conductor should direct the passenger to go to the Jim Crow car, and that he should refuse to go. "The conductor will be instructed not to use force or molest," reported Martinet, "& our white passenger will swear out the affidavit. This will give us our habeas corpus case, I hope."
On the appointed day, February 24, 1892, Daniel F. Desdunes, son of Louis Desdunes, bought a ticket for Mobile, boarded the Louisville & Nashville Railroad, and took a seat in the white coach. All went according to plan. Desdunes was committed for trial to the criminal district court in New Orleans and released on bail. On March 21, Walker, the local attorney associated with Tourgee in the case, filed a plea protesting that his client was not guilty and attacking the constitutionality of the Jim Crow law. He wrote Tourgee that he intended to go to trial as early as he could.
Between the lawyers there was not entire agreement on procedure. Walker favored the plea that the law was void because it attempted to regulate interstate commerce, over which the Supreme Court held that Congress had exclusive jurisdiction. Tourgee was doubtful. "What we want," he wrote Walker, "is not a verdict of not guilty, nor a defect in this law but a decision whether such a law can be legally enacted and enforced in any state and we should get everything off the track and out of the way for such a decision." Walker confessed that "It's hard for me to give up my pet hobby that the law is void as a regulation of interstate commerce," and Tourgee admitted that he "may have spoken too lightly of the interstate commerce matter."
However, the discussion was ended abruptly and the whole approach altered before Desdunes's case came to trial by a decision of the state supreme court handed down on May 25. In this case, which was of entirely independent origin, the court reversed the ruling of a lower court and upheld the Pullman Company's plea that the Jim Crow law was unconstitutional insofar as it applied to interstate passengers.
Desdunes was an interstate passenger holding a ticket to Alabama, but the decision was a rather empty victory. The law still applied to intrastate passengers, and since all states adjacent to Louisiana had by this time adopted similar or identical Jim Crow laws, the exemption of interstate passengers was of no great importance to the blacks of Louisiana and .it left the principle against which they contended unchallenged. On June 1, Martinet wired Tourgee on behalf of the committee saying, "Walker wants new
The Case of the Louisiana Traveler
case wholly within state limits," and asked his opinion. Tourgee wired his agreement.
One week later, on June 7, Homer Adolph Plessy bought a ticket in New Orleans, boarded the East Louisiana Railroad bound for Covington, Louisiana, and took a seat in the white coach. Since Plessy later described himself as "seven‑eighths Caucasian and oneeighth African blood," and swore that "the admixture of colored blood is not discernible," it may be assumed that the railroad had been informed of the plan and agreed to cooperate. When Plessy refused to comply with the conductor's request that he move to the Jim Crow car, he was arrested by Detective Christopher C. Cain and charged with violating the Jim Crow car law. Tourgee and Walker then entered a plea before judge John H. Ferguson of the Criminal District Court for the Parish of New Orleans, arguing that the law Plessy was charged with violating was null and void because it was in conflict with the Constitution of the United States. Ferguson ruled against them. Plessy then applied to the state supreme court for a writ of prohibition and certiorari and was given a hearing in November 1892. Thus was born the case of Plessy v. Ferguson.
The court recognized that neither the interstate commerce clause nor the question of equality of accommodations was involved and held that the sole question was whether a law requiring "separate but equal accommodations" violated the Fourteenth Amendment. Citing numerous decisions of lower federal courts to the effect that accommodations did not have to be identical to be equal, the court, as expected, upheld the law. "We have been at pains to expound this statute," added the court, "because the dissatisfaction felt with it by a portion of the people seems to us so unreasonable that we can account for it only on the ground of some misconception."
Chief Justice Francis Tillou Nicholls, who presided over the court that handed down this decision in 1892, had signed the Jim Crow act as governor when it was passed in 1890. Previously he had served as the "Redeemer" governor who took over Louisiana from the carpetbaggers in 1877 and inaugurated a brief regime of conservative paternalism. In those days, Nicholls had denounced race bigotry, appointed blacks to office, and attracted many of them to his party, Martinet among them. Martinet wrote Tourgee that Nicholls in those years had been "fair & just to colored men" and had, in fact, "secured a degree of protection to the colored people not enjoyed before under Republican Governors." But in November 1892, the wave of Populist radicalism was reaching its crest in the South. Not only were black and white farmers aroused, but New Orleans workers of both races had just shaken the city by a militant general strike. Forty‑two union locals with over 20,000 members, who with their families made up nearly half the population of the city, struck for a ten‑hour day, overtime pay, union recognition, and a closed shop. Business came to a halt and bank clearings were cut in half. It has been described by one historian as "the first general strike in American history to enlist both skilled and unskilled labor, black and white, and to paralyze the life of a great city." The governor of the state proclaimed martial law, and under threat of force the strikers agreed to a weak compromise. This was the immediate background of the court's decision, though it would probably have gone the same way anyhow. But the course of Judge Nicholls since 1877 typified the concessions to racism that conservatives of his class were making‑and had been making‑to divert white farmers and workers from their course of rebellion.
Tourgee and Walker were denied a rehearing Gut obtained a writ of error, which was accepted by the United States Supreme Court. There ensued a delay of three years before the Supreme Court got around to hearing the case argued. The delay, oddly enough, pleased Tourgee. What he most feared was an unfavorable (and irreversible) decision. He was convinced that time worked in his favor and that with more years of agitation and crusade by the new National Citizens Rights Association, the tide of public opinion could be turned. The tide, of course, continued to mount against his cause. The brief that Albion Tourgee filed with the Supreme Court in behalf of Plessy in October 1895 breathed a spirit of equalitarianism that was more in tune with his carpetbagger days than with the prevailing spirit of the mid‑1890s. And it was no more in accord with the dominant mood of the Court than was the lone dissenting opinion later filed by Justice John Marshall Harlan, which echoed many of Tourgee's ringing phrases.
At the very outset, however, Tourgee advanced an argument in behalf of his client that unconsciously illustrated the paradox that had from the start haunted the American attempt to reconcile strong color prejudice with equalitarian commitments. Plessy, he contended, had been deprived of property without due process of law. The "property" in question was the "reputation of being white." It was "the most valuable sort of property, being the masterkey that unlocks the golden door of opportunity." Intense race prejudice excluded any man suspected of having Negro blood "from the friendship and companionship of the white man," and therefore from the avenues to wealth, prestige, and opportunity. "Probably most white persons if given the choice," he held, "would prefer death to life in the United States as colored persons."
Since Tourgee had proposed that a person ,who was "nearly white" be selected for the test case, it may be presumed that he did so with this argument in mind. He doubtless hoped thereby to appeal to the preferential treatment the Supreme Court notoriously gave to property rights. Of course, this was not a defense of the blacks against discrimination by whites, but a defense of those "nearly" white against the penalties of color. From such penalties blacks admittedly had no defenses. The argument, whatever its merits, apparently did not impress the Court.
Tourgee went on to develop more relevant points. He emphasized especially the incompatibility of the segregation law with the spirit and intent of the Thirteenth and Fourteenth Amendments, particularly the latter. Segregation perpetuated distinctions "of a servile character, coincident with the institution of slavery." He held that "slavery was a caste, a legal condition of subjection to the dominant class, a bondage quite separable from the incident of ownership." He scorned the pretense of impartiality and equal protection advanced in defense of the "separate but equal" doctrine. "The object of such a law," he declared, "is simply to debase and distinguish against the inferior race. Its purpose has been properly interpreted by the general designation of Jim Crow Car' law. Its object is to separate the Negroes from the whites in public conveyances for the gratification and recognition of the sentiment of white superiority and white supremacy of right and power." He asked the members of the Court to imagine the tables turned and themselves ordered into a Jim Crow car. "What humiliation, what rage would then fill the judicial mind!" he exclaimed.
The clue to the true intent of the Louisiana statute was that it did not apply "to nurses attending the children of the other race." On this clause he observed:
The exemption of nurses shows that the real evil lies not in the color of the skin but in the relation the colored person sustains to the white. If he is a dependent, it may be endured: if he is not, his presence is insufferable. Instead of being intended to promote the general comfort and moral wellbeing, this act is plainly and evidently intended to promote the happiness of one class by asserting its supremacy and the inferiority of another class. Justice is pictured blind and her daughter, the Law, ought at least to be color-blind.
Looking to the future, Tourgee asked, "What is to prevent the application of the same principle to other relations" should the separate‑car law be upheld? Was there any limit to such laws?
Why not require all colored people to walk on one side of the street and the whites on the other? Why not require every white man's house to be painted white and every colored man's black? Why may it not require every white man's vehicle to be of one color and compel the colored citizen to use one of different color on the highway? Why not require every white business man to use a white sign and every colored man who solicits customers a black one? One side of the street may be just as good as the other and the dark horses, coaches, clothes and signs may be as good or better than the white ones. The question is not as to the equality of the privileges enjoyed, but the right of the State to label one citizen as white and another as colored in the common enjoyment of a public highway as this court has often decided a railway to be.
Two other briefs in support of Plessy's case, both by Southern whites out of the Radical Reconstruction past, were laid before the court. One was by James C. Walker of Louisiana, Tourgee's associate in the case. The other was by Samuel F. Phillips of North Carolina, an old friend and onetime Scallawag colleague of onetime carpetbagger Tourgee. Thirteen years before the Plessy decision Phillips, then United States solicitor general, had suffered defeat before the same court in the Civil Rights Cases of 1883.
The Supreme Court did not hand down a decision on Plessy v. Ferguson until 1896. In the four years that had intervened since Homer Plessy was arrested in New Orleans, the South had quickened the pace of retreat from its always reluctant commitment to equality and the Fourteenth Amendment, and it had met with additional acquiescence, encouragements, and approval in the North. New segregation laws had been adopted. Lynching had reached new peaks. Frightened by Populist gains in 1892 and 1894, Southern conservatives raised the cry of black domination and called for white solidarity. Two states had already disfranchised blacks,‑ and several others, including Louisiana, were planning to take the same course. In New Orleans, Louis Martinet's valiant Crusader had folded and his forces were in disarray. In 1892, Congress defeated the Lodge Bill to extend federal protection to elections, and in 1894, it wiped from the federal statutes a mass of Reconstruction laws for the protection of equal rights. And then, on September 18, 1895, Booker T. Washington delivered a famous speech embodying the so‑called Atlanta Compromise which was widely interpreted as an acceptance of subordinate status for blacks by the foremost leader of the race.
Given the strong tide of reaction in public opinion on race relations, the weakness of white friends of blacks, and the seeming acquiescence of blacks themselves, it may well have appeared to the court that it was not within the capabilities of the judicial process to stem the tide‑even if the court had been so disposed. If in this case, however, the court acted out of fear of public opinion or deference to majority will, it had certainly shown no such timidity in defying public opinion the previous year, 1895, when it handed down a succession of extremely unpopular opinions in defense of property rights. By 1896 the court may not have been able to stem the tide of segregation, as it might have earlier. On the other hand, it was under no obligation or necessity to give impetus to reaction by the rhetoric in which it couched its opinion.
On May 18, 1896, justice Henry Billings Brown, of Michigan residence and Massachusetts birth, delivered the opinion of the court on the case of Plessy v. Ferguson. His, views upholding the separate-but-equal doctrine were in accord with those of all his brothers, with the possible exception of Justice Brewer, who did not participate, and the certain exception of Justice Harlan, who vigorously dissented. In approving the principle of segregation, justice Brown was also in accord with the prevailing climate of opinion and the trend of the times. More important for purposes of the decision, his views were in accord with a host of state judicial precedents, which he cited at length, as well as with unchallenged practice in many parts of the country, North and South. Furthermore, there were no federal judicial precedents to the contrary.
Whether Brown was well advised in citing as his principal authority the case of Roberts v. City of Boston is another matter. The fame of Chief Justice Lemuel Shaw of the Massachusetts Supreme Court was undoubtedly great, and in this case he unquestionably sustained the power of Boston to maintain separate schools for blacks and rejected Charles Sumner's plea for equality before the law. But that was in 1849, twenty years before the Fourteenth Amendment, which, as Tourg6e pointed out, should have made a difference. More telling was Brown's mention of the action of Congress in establishing segregated schools for the District of Columbia, an action endorsed by Radical Republicans who had supported the Fourteenth Amendment and sustained by regular congressional appropriations ever since. Similar laws, wrote Brown, had been adopted by "the legislatures of many states, and have been generally, if not uniformly, sustained by the courts."
The validity of such segregation laws, the justice maintained, depended on their "reasonableness." And in determining reasonableness, the 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."
In addition to judicial precedent and accepted practice, justice Brown ventured into the more uncertain fields of history, sociology, and psychology for support of his opinion. The framers of the Fourteenth Amendment, he maintained, "could not have intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality." The issue of "social equality" was hardly in question here, but there were certainly grounds for maintaining that the framers of the amendment were under the impression that they intended to abolish all legal distinctions based on color.
The sociological assumptions governing Justice Brown's opinion were those made currently fashionable by Herbert Spencer and William Graham Sumner, but the dictum of Chief Justice Shaw in 1849 that prejudice "is not created by law, and probably cannot be changed by law," can hardly be attributed to the influence of either of those theorists. "We consider the underlying fallacy of the plaintiff's argument," said Brown,
to consist in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority. If this is 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 also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured by the nears except by an enforced commingling of the two races. We cannot accept this proposition .... 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 most fascinating paradox in American jurisprudence is that the opinions of two sons of Massachusetts, Shaw and Brown, should have bridged the gap between the radical equalitarian commitment of 1868 and the reactionary repudiation of that commitment in 1896, and that a Southerner should have bridged the greater gap between the repudiation of 1896 and the radical rededication of the equalitarian idealism of Reconstruction days in 1954. For the dissenting opinion of justice Harlan, embodying many of the arguments of Plessy's ex-carpetbagger counsel, foreshadowed the court's eventual repudiation of the Plessy v. Ferguson decision and the doctrine of "separate but equal" more than half a century later.
John Marshall Harlan is correctly described by Robert Cushman as "a Southern gentleman and a slaveholder, and at heart a conservative." His famous dissent in the Civil Rights Cases of 1883 had denounced the "subtle and ingenious verbal criticism" by which "the substance and spirit of the recent amendments of the Constitution have been sacrificed." In 1896; the "Great Dissenter" was ready to strike another blow for his adopted cause.
Harlan held the Louisiana segregation law in clear conflict with both the Thirteenth and Fourteenth Amendments. The former "not only struck down the institution of slavery," but also "any burdens or disabilities that constitute badges of slavery or servitude." Segregation was just such a burden or badge. Moreover, the Fourteenth Amendment "added greatly to the dignity and glory of American citizenship, and to the security of personal liberty," and segregation denied blacks the equal protection of both dignity and liberty. "The arbitrary separation of citizens, on the basis of race, while they are on a public highway," he said, "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."
Harlan was as scornful as Tourgee had been of the claim that the separate‑car law did not discriminate against blacks. "Every one knows," he declared, that its purpose was "to exclude colored people from, coaches occupied by or assigned to white persons." This was simply a poorly disguised means of asserting the supremacy of one class of citizens over another. The justice continued:
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 guaranteed by the supreme law of the land are involved . . . . 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 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 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.
If the state may so regulate the railroads, "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," or, for that matter, apply the same regulations to streetcars and other vehicles, or to the courtroom, the jury box, the legislative hall, or any other place of public assembly? "In my opinion," concluded the Kentuckian, "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 country received the news of the Plessy v. Ferguson decision with a response that differed from the way it had reacted to the decision in the Civil Rights Cases thirteen years earlier. In 1883, the news of the court's action had precipitated hundreds of editorials, some indignant rallies, congressional bills, a Senate report, and much general debate. Otto H. Olsen has made a systematic survey of the national reaction to the Plessy decision which indicates that the news was not received without dissent, that hostility was not confined to the black press, and that the presumption of consensus about segregation in 1896 is an exaggeration. Nevertheless, it is clear that a great change had taken place since 1883 and that the court gave voice to the dominant mood of the country. Justice Harlan spoke for the convictions of a bygone era.
The racial aggressions that the justice foresaw came in a flood after the decision of 1896. Even Harlan indicated by his opinion of 1899 in Cummings v. Board of Education that he saw nothing unconstitutional in segregated public schools. Virginia was the last state in the South to adopt the separate‑car law, resisting it until 1900. Up to that year, this was the only law of the type adopted by a majority of the Southern states. But on January 12, 1900, the editor of the Richmond Times was in full accord with the new spirit when he asserted: "It is necessary that this principle be applied in every relation of Southern life. God Almighty drew the color line and it cannot be obliterated. The negro must stay on his side of the line and the white man must stay on his side, and the sooner both races recognize this fact and accept it, the better it will be for both."
With incredible thoroughness the color line was drawn and the Jim Crow principle applied‑even to areas that Tourgee and Harlan had suggested a few years before as absurd extremes. In sustaining the constitutionality of the, new Jim Crow laws, courts universally and confidently cited Plessy v. Ferguson as the leading authority. They continued to do so for more than half a century.
On April 4, 1950, justice Robert H. Jackson wrote old friends in Jamestown, New York, of his surprise in running across the name of Albion W. Tourgee, once a resident of the nearby village of Mayville, in connection with segregation decisions then pending before the Supreme Court. "The Plessy case arose in Louisiana," he wrote,
and how Tourgee got into it I have not learned. In any event, I have gone to his old brief, filed here, and there is no argument made today that he would not make to the Court. He says, "Justice is pictured blind and her daughter, The Law, ought at least to be color‑blind." Whether this was original with him, it has been gotten off a number of times since as original wit. Tourgee's brief was filed April 6, 1896, and now, just fifty‑four years after, the question is again being argued whether his position will be adopted and what was a defeat for him in '96 be a post‑mortem victory.
Plessy v. Ferguson remained the law of the land for exactly fiftyeight years, from May 18, 1896, to May 17, 1954. Then, at long last, came a vindication, "a post‑mortem victory"‑not only for the excarpetbagger Tourgee, but for the ex‑slavehoider Harlan as well.