Plessy V. Ferguson

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At the very outset, he 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 deep 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 master-key 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 Tourgée 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. But this was not a defense of the colored man against discrimination by whites, but a defense of the “nearly” white man against the penalties of color. The argument, whatever its merits, apparently did not impress the Court.

Tourgée 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 particularly the Fourteenth amendments. 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 the 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 Tourgée shrewdly 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 well-being, 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.

Tourgée then asked the Court to look to the future. Should the separate-car law be upheld, he inquired, “what is to prevent the application of the same principle to other relations?” Was there any limit to such laws? “Why not require all colored people to walk on one side of the street and whites on the other?…One side of the street may be just as good as the other.…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.”

The Supreme Court did not get around to handing down a decision on Plessy v. Ferguson until 1896. In the years that intervened between the passage of the Louisiana segregation law in July, 1890, and the time of the eventual decision on its constitutionality in 1896, the retreat from the commitment to equality had quickened its pace in the South and met with additional acquiescence, encouragement, and approval in the North. Two states had already disfranchised the Negro, and several others, including Louisiana, were planning to take the same course. In 1892 Congress defeated the Lodge Bill, designed to extend federal protection to elections, and in 1894 it wiped from the federal statute books 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 the Negro by the foremost leader of the race.