Plessy V. Ferguson

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On May 18, 1896, Justice Henry Billings Brown, a resident of Michigan but a native of Massachusetts, delivered the opinion of the Court in the case of Plessy v. Ferguson . His views upholding the defendant’s case —that the “separate but equal” doctrine was constitutional—were in accord with those of all his brothers, with the possible exception of Justice David Josiah Brewer, who did not participate, and the certain exception of Justice John Marshall Harlan, who vigorously dissented in phrases that often echoed Tourgee’s arguments. In approving, to all intents and purposes, the principle of segregation, Justice Brown followed not only the trend of the times, but a host of state judicial precedents, which he cited at length. That there were no federal judicial precedents to the contrary only added to the technical strength of his position. Just as telling, perhaps, 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 in regular congressional appropriations ever since.

Similar laws, wrote Brown, were adopted by “the legislatures of many states, and have been generally, if not uniformly, sustained by the courts.” The validity of such segregation laws, he 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 sociology and psychology for support of his opinion. He wrote:

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 also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured by the negro 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.

One of the most fascinating paradoxes in American jurisprudence is that the opinion of a native son of Massachusetts, Brown, should have bridged the gap between the radical equalitarian commitment of 1868 and the reactionary repudiation of that commitment in 1896; and that Harlan, a southerner, should have bridged the greater gap between the repudiation of 1896 and the radical rededication to the equalitarian idealism of 1868 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—a repudiation in which, fit- tingly enough, Harlan’s grandson and namesake on the Warren Court wholly concurred.

The elder John Marshall Harlan is correctly described by Robert Cushman as “a Southern gentleman and a slave-holder, and at heart a conservative.” A Kentuckian of the Whig persuasion, Harlan had opposed secession and fought in the Union Army, but at the same time he opposed both the emancipation of the slaves and the passage of civil rights laws to protect the rights of the freedmen. Shocked by Ku Klux excesses, he experienced a sudden conversion, renounced his former views, became a Republican in 1868, and was appointed to the Supreme Court by President Hayes in 1877.

After his conversion Harlan became one of the most outspoken champions of Negro rights of his time, and during his thirty-four years on the bench he lifted his voice repeatedly against denial of those rights by the dominant opinion of the Court. 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.” And in 1896 he was ready to strike another blow for his adopted cause.

Harlan held the Louisiana segregation law in clear conflict with both the Thirteenth and the 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,” and 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 to Negroes 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.”