Plessy v. Ferguson

Explanation and Analysis of the Document

Statement of the Case

The case begins with a recitation of the facts of the case and its legal posture. On June 7, 1892, Plessy, the defendant also known as the plaintiff in error, paid for a first-class train ticket on the East Louisiana Railway headed from New Orleans to Covington, Louisiana, and sat down in an empty seat in the railroad car reserved for whites. He was “of seven-eighths Caucasian and one-eighth African blood” and had such a light complexion that one could not tell that he had any African ancestry. However, Plessy had already decided to challenge the law before boarding the train. Thus, after sitting down, Plessy informed the conductor that he was of mixed blood. He was told he had to move to the section for nonwhites or get off the train. Plessy was “forcibly ejected from said coach” and taken to jail after he refused to move.

Plessy was charged with violating an act of the Louisiana legislature commonly known as the Separate Car Act of 1890. In response to the charge, Plessy asserted that the act violated the U.S. Constitution. The Louisiana trial court disagreed and, according to the statement of the case as noted in the Plessy decision, stated 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.” Plessy sought a writ of prohibition that would stop the court from enforcing the act. The Louisiana Supreme Court determined that the Separate Car Act was constitutional and denied the writ of prohibition. Consequently, Plessy “prayed for a writ of error from this court” and the case came to the United States Supreme Court.

Majority Opinion of Justice Henry Billings Brown

Brown's opinion for the Court follows the recitation of facts. It begins by noting that the key issue is “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.” The opinion then describes the content of the statute. The first section of the statute requires that railway companies other than street railroads provide “equal but separate accommodations for the white, and colored races,” either by providing separate train cars or by erecting partitions in a single railcar that separates the races. The second section of the statute requires that the companies segregate their passengers by race. Train conductors and other company employees were required to assign passengers to respective accommodations by race. Passengers who refused to go to their assigned accommodations and train employees who intentionally assigned passengers to the wrong accommodations were liable for a fine of $25 or up to twenty days in jail. A railway company could refuse to carry a passenger who refused to sit in his or her assigned car, and no damages would arise based on the refusal. The third section of the act provides penalties for employees of the railway company who refuse to comply with the act, but it excepts “nurses attending children of the other race.” According to Brown, the fourth section of the act is immaterial.

The opinion repeats facts from the statement of the case: that Plessy was of seven-eighths Caucasian and one-eighth African blood, that one could not tell that he was part African by looking at him, that he sat down in a vacant seat in the coach assigned for whites, that he did not move when he was told to move, that he was removed from the train, and that he was taken to the parish jail. Brown notes that Plessy claims that the Separate Car Act is unconstitutional under both the Thirteenth and Fourteenth Amendments. Brown quickly addresses the Thirteenth Amendment claim and then spends the rest of the opinion addressing the Fourteenth Amendment claim.

Brown explains that the Thirteenth Amendment addresses slavery and like conditions such as “Mexican peonage or the Chinese coolie trade.” In addition, the amendment applies to attempts to place people into involuntary servitude or to place badges of slavery on former slaves. However, says Brown, the Thirteenth Amendment is not applicable to this case. The statute at issue makes a distinction between the races based on color but does not seek to “destroy the legal equality of the two races, or re-establish a state of involuntary servitude.” Brown notes that in cases like this one where a law allows or requires discrimination, if any amendment will apply, it will be the Fourteenth, not the Thirteenth. This is because the Fourteenth Amendment was passed to address race-based distinctions that some believed effectively devalued the freedom given by the Thirteenth Amendment.

Brown begins his explanation of the applicability of the Fourteenth Amendment with an elucidation of its scope and limitations. He notes that the purpose of the amendment is “to establish the citizenship of the negro, to given 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.” Simply, the amendment provides equality of the races before the law. Equality before the law is not necessarily inconsistent with making race-based distinctions or even segregating the races, however. Brown notes that school segregation was allowed even in jurisdictions that scrupulously provided equal political rights between the races, citing Justice Lemuel Shaw's opinion in the 1849 case Roberts v. City of Boston. Although that case was decided before the Civil War and the passage of the Fourteenth Amendment and could not be deemed binding on any construction of the Fourteenth Amendment, Brown's point appears to be that there is a distinction between requiring equality before the law and requiring what he believes constituted social equality. In making his point, Brown previews an argument, which he would use later in the opinion, that enforced separation of the races does not suggest the inferiority of either race.

Brown argues that the Fourteenth Amendment is a limitation on states when political or civil equality is at stake, rather than a mandate to allow Congress to grant positive rights to support notions of equality. For example, the Fourteenth Amendment requires that Blacks and whites be treated equally when civil rights such as the ability to serve on a jury are at issue. Conversely, when social equality issues are at stake, such as conditions of travel, the Fourteenth Amendment leaves those matters to the states to regulate so long as no other constitutional provisions are violated. For example, when Louisiana sought to regulate racial aspects of how passengers were to be treated when traveling through the state in interstate travel, it would have been able to do so had the law not been related to interstate commerce, the regulation of which is left to Congress under the Constitution. That the Fourteenth Amendment generally leaves state prerogatives to regulate intact was made clear when the Court passed on the Civil Rights Act of 1875 in the Civil Rights Cases. There, the Court indicated that the Fourteenth Amendment does not give Congress the power to pass legislation that provides positive rights in areas of state prerogative such as the public accommodation of the races with respect to private businesses. Simply, the Fourteenth Amendment does not provide positive rights; it merely limits the kind of legislation states can pass.

Brown then directly addresses the constitutionality of the Separate Car Act. Although the act forced segregation, Brown finds that it does not harm the rights of African Americans because it “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.” The act had the potential to harm the rights of whites, however. If, as Plessy argues in the claim, the reputation of being a white person in a mixed-race community is like property, the act may have gone too far in protecting a conductor who improperly assigns whites to the Black car and therefore damages the property value of the white person. Brown notes that this problem is of no moment to Plessy's claim, because a Black man like Plessy loses no property value in his reputation by being improperly categorized as a white person.

In response to the argument that allowing racial separation opens the door to allowing the state to create other arbitrary distinctions based on race, Brown answers that the exercise of the state's police power itself has to be reasonable. The question is whether the Separate Car Act is reasonable based on “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.” Based on that standard, it is unclear that the segregation here is any worse than school segregation that, according to Brown, most courts appear to agree is constitutional.

After determining that the act is constitutional, Brown attempts to explain why the rule itself treats the races equally. He reprises his argument that forced segregation does not suggest the inferiority of either race and states that any inferiority that Black citizens may feel comes from the spin Blacks give to the act and not from the act itself. Indeed, he suggests that if a majority-Black legislature had passed the act, whites would not feel inferior to Blacks. Oddly, Brown then explains that voluntary mingling between the races is acceptable, but forced mingling by the state is not required. Given that the statute at issue stops voluntary mingling, Brown's argument is somewhat nonsensical. Brown ends the argument by suggesting that formal civil and political equality is as far as the Constitution does and can go. If the races are social unequals, the Constitution cannot remedy that situation. Brown ends his opinion by noting that it is unclear how much African blood makes one Black for purposes of segregation statutes, but he leaves that issue to the individual states to decide.

Dissenting Opinion of Justice John Marshall Harlan

Harlan begins by highlighting a few of the statute's salient points. He notes that the statute requires strict separation of the races with the exception of a nurse caring for a child of a different race. Indeed, a personal attendant could not attend to the needs of her employer if the attendant and employer were of different races unless the attendant wished to be held criminally liable. However, he notes, regardless of the fairness of the statute, the question for the Court is whether the statute's explicit regulation based on race is constitutional.

Harlan provides the general structure of his argument. The civil rights of all citizens are to be protected equally. Consequently, there is no reason for the government to consider the race of any person when regulating civil rights. When a government considers race when legislating regarding civil rights, not only does it improperly provide civil rights, it also improperly affects the liberty of all United States residents.

Harlan then indicates the purpose of the Reconstruction amendments The Reconstruction amendments provide a broad protection for the rights of all citizens. The Thirteenth Amendment abolishes slavery, “prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude,” and “decreed universal civil freedom in this country.” But the Thirteenth Amendment was not strong enough to fully protect the rights of former slaves. Consequently, the Fourteenth Amendment was ratified to ensure that the freedom provided by the Thirteenth Amendment could be fully exercised. By explicitly making African Americans citizens and by stopping states from regulating rights based on race, the Fourteenth Amendment “added greatly to the dignity and glory of American citizenship, and to the security of personal liberty.” In combination, the Thirteenth and Fourteenth Amendments were supposed to guarantee that “all the civil rights that pertain to freedom and citizenship” would be protected. The Fifteenth Amendment, which states that the right to vote is not provided on the basis of race, color, or previous condition of servitude, was added to guarantee that all citizens could participate “in the political control of his country.” As a group, the Reconstruction amendments were designed to guarantee that African Americans enjoyed the same rights as whites in the eyes of the law.

The Reconstruction amendments were meant to ensure that Blacks and former slaves were to be equal with whites and would enjoy the same rights. Even though the Fourteenth Amendment does not give positive rights, it does stop state governments from treating Blacks badly merely because of their skin color. Indeed, the Supreme Court has made clear that with respect to civil and political rights, “all citizens are equal before the law.” In concrete terms, this means that Blacks cannot, for example, be kept from serving on juries. Harlan notes that the Supreme Court had decided so in Strauder v. West Virginia (1880).

Harlan then begins his attack on the majority's opinion by noting that the statute is clearly designed to keep Blacks away from whites and that anyone who claims otherwise is lacking in candor. Then, rather than focusing directly on the equality issue, he suggests that the statute imperils liberty interests. That is, if people of different races want to sit together on a train, they are not allowed to do so under the statute without breaking the law.

Harlan next suggests that allowing the law to stand could lead to ludicrous results, such as requiring that Blacks use one side of the street and whites use the other side or requiring that Blacks use one side of the courtroom and whites use the other side. Harlan's suggestion that Blacks and whites might be segregated in the jury box is particularly biting, given that the Court had made clear in prior cases that Blacks had a right to serve on integrated juries. How an integrated jury in a segregated jury box might work is anyone's guess.

Harlan then challenges the majority's notion that reasonableness is a ground on which to determine the constitutionality of a statute. He suggests that reasonableness is an issue for the legislature when passing a law. Constitutionality is an issue for the Court when reviewing legislation. It may be acceptable to consider reasonableness when determining how a statute will be interpreted consistent with legislative intent, but it is not acceptable to consider it when determining whether the legislature is allowed to pass a certain statute under the Constitution.

Harlan next begins a discussion that, through the years, would overtake the majority opinion in significance. First, he asserts that the Constitution is color-blind. Harlan, making his point in terms that are harsh to twenty-first-century ears, notes that the white race is dominant in America and that it likely would continue to be so. However, he states that the dominance of the white race does not mean that there is a caste system in America. Indeed, he argues that notwithstanding the relative position of the races, individuals must be treated as equals under the law. He states that the most powerful has no greater rights than the least powerful has and that the Court does a disservice when it claims otherwise. Harlan suggests, in fact, that the Court's vision is so troubling and antithetical to equality that the Plessy decision would become as nettlesome as the Dred Scott decision.

The effect of the Plessy decision, so suggests Harlan, would be to encourage some to create a caste system that would be antithetical to the Reconstruction amendments. The decision is likely to cause great harm, given that Blacks and whites need to learn to live together. Harlan suggests that laws like Louisiana's, which imply that Blacks are “so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens,” would elicit discord, distrust, and hate between the races.

Harlan then attacks the notion that the case is about social equality. The statute at issue relates to allowing people to sit in the same train car. Social equality is no more relevant to that issue than it is to the issue of having citizens of different races share the same street, share the same ballot box, or stand together at a political assembly. Indeed, Harlan notes, it is odd that one would raise the social equality issue in this context, given that the Chinese are considered so different from Americans that they are not allowed to become citizens. Although the Chinese cannot become citizens, they are allowed to ride in the same car as whites. Given that Blacks are supposed to have equal rights as citizens, that they have fought in wars to preserve the Union, and that they have the right to share political control of the country, it is odd that they would not be allowed to share the same railway car with whites. In fact, Harlan argues, “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.”

Harlan suggests that any harm that might come from having Blacks and whites share railcars pales in comparison to the problems that will arise from denying civil rights by separating the races. If separation is appropriate, it is unclear why separation would not be appropriate when Blacks are exercising rights that the Court agrees they must be allowed to exercise. He again suggests that, under the reasoning of Plessy, there would be nothing unconstitutional in a state forcing jury boxes to be partitioned on the basis of race.

As he moves toward the conclusion of the dissent, Harlan argues that the cases that Brown cites to support segregation are from a bygone, pre–Civil War era during which inequality and slavery ruled. Given the mind-set of those who passed the laws and the absence of the Reconstruction amendments, such cases are inapplicable to this situation and should be ignored. The question is not how to think about rights in an era of admitted inequality, but what to do in an era when free Blacks and former slaves are citizens and must be provided equal rights.

Harlan finishes by arguing that the law at issue is an affront to the liberty of all citizens and is inconsistent with the Constitution. He notes that if similar laws were passed by states and localities, trouble would ensue. Lastly, he indicates that if the right to provide rights unequally to citizens is allowed, Black citizens who are full members in society would be placed “in a condition of legal inferiority.” For the aforementioned reasons, Harlan notes, he is required to dissent.

Additional Commentary by Lisa Paddock, Independent Scholar, Cape May County New Jersey

Plessy was essentially a test case. After the Supreme Court ruled in the Civil Rights Cases that the Fourteenth Amendment did not outlaw racial discrimination on the part of private individuals or entities, southern states began adopting a whole series of Jim Crow laws aimed at segregating whites and Blacks. One of these laws was Louisiana's Separate Car Act, which relegated Black train passengers to separate cars. In response, a New Orleans group of African Americans and Creoles—with tacit support from the railroads, burdened with extra expense—organized the Citizens' Committee to Test the Constitutionality of the Separate Car Law. Homer Plessy, a light-skinned individual classified as Black because he was one-eighth African American, was enlisted to test the law on behalf of the committee. Because an earlier state court decision had stipulated that the law in question could not be applied to interstate commerce, Plessy was careful to purchase a ticket for travel only within Louisiana. He also ensured that the conductor knew of his mixed race. After he refused to move to the “colored only” car, Plessy was duly arrested and tried. When, as expected, the state courts rejected his argument that the Separate Car Act violated his rights under the Thirteenth and Fourteenth Amendments, Plessy appealed to the U.S. Supreme Court.

The Court majority similarly rejected Plessy's Thirteenth and Fourteenth Amendment arguments, declaring that the former barred only actions intended to impose slavery and that the Separate Car Act did not violate the latter—not even with its implication that Blacks are inferior. What is more, the majority proclaimed, it was fruitless for the Court to try to mandate racial integration when, as manifested by laws such as the one under consideration, society was so strongly opposed to race mixing. Transportation was like schooling, the Court opined: Racial segregation in both settings was a social right.

Harlan, once again a solitary dissenter, lays out quite a different definition of equality. For Harlan, segregation is in itself an incident of slavery and a violation of personal liberty. The Thirteenth Amendment barred not only slavery per se but also all “badges of … servitude.” “Separate but equal” public accommodations simply could not exist in a society governed by a Constitution that is “color-blind, and neither knows nor tolerates classes among citizens.” The white race, which dominated society, could remain dominant only if it fulfilled its destiny by acknowledging and yielding to its better instincts by adhering to the law.

In the end, Homer Plessy paid a fine and “separate but equal” remained the law of the land for another half century. In 1954, however, yet another African American organization, the National Association for the Advancement of Colored People, chose yet another representative plaintiff—Oliver Brown, the parent of a third-grader obliged to attend an inconvenient segregated school in Topeka, Kansas—to challenge the constitutionality of “separate but equal” in public accommodations. Brown v. Board of Education overturned Plessy, thereby placing the civil rights movement center stage in American life and proving the aptness of Harlan's assertion that our Constitution is color-blind.