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Awful Eight #1: Two Generations Lost



By the end of 1866, not quite two years after the end of the Civil War, the southern states all had passed a series of discriminatory laws collectively referred to as the Black Codes. Northerners were furious at the brazen move to reconstitute the antebellum political and social order and the resulting backlash swept the “Radical Republicans” into office. Besides exacting a measure of revenge the Radicals wanted to ensure the costly gains of freed blacks (“freedmen”) were not erased, and over President Andrew Johnson’s vetoes they voted to garrison Union troops and establish military governors in the southern states.

For those narrow purposes their efforts worked. By 1870 blacks held around 15% of elected offices in the South.

The gains were steadily chipped away through the early 1870’s, and then came the disastrous presidential election of 1876. In a climate of escalating racial tension, three states- Florida, South Carolina and Louisiana- sent electors from both parties to the Electoral College. Each accused the other of fraud. Corruption was indeed rife- “repeaters” stuffed ballot boxes, fraudulent ballots were printed to trick illiterate blacks into voting for the Democratic candidate and reports of voter intimidation at the polls were widespread.

At the end of this mess Senator Samuel Tilden led Rutherford B Hayes in electoral votes well as the popular vote. However, the three contested southern states had enough electors to put Hayes over the top. With the outcome in doubt both parties threatened to storm Washington and put their man in office by force. After a bi-partisan election commission failed to solve the dilemma, party leaders- both Republicans and Democrats- met in a hotel in Washington and hammered out a deal:

They would give Hayes the presidency in exchange for Hayes’ withdrawing federal reconstruction troops from the South. The solution to the “race problem” would be left to local southern governments. So the Radical Republicans (and carpetbaggers) left the South and “Redeemer” Democrats reclaimed state legislatures. The result was the steady passage of ever-more restrictive, racist laws. By 1890 blacks held a mere 1% of elected offices.

Which brings us to a train station in New Orleans on the afternoon of June 7, 1892.

Low sopping clouds and subtropical heat bore down on the passengers at the Press Street station. A well-dressed thirty-year-old shoemaker bought a first class ticket aboard the East Louisiana Railroad for a two-hour jaunt to nearby Covington. His journey lasted one block.

Homer Plessy was born in the French-speaking Creole society of New Orleans. As a young man he had watched the steady erosion of civil rights after Hayes withdrew troops. Socially aware, in 1887 he was voted Vice President of a group dedicated to reforming public education.

In 1892 a local grass roots organization called the Comité des Citoyens (“Citizens’ Committee”) strategized how they could overturn the 1890 Louisiana Separate Car Act segregating public trains. With zero success in the legislature the Committee decided they had to appeal to the courts. There was more at stake than a segregated train, they realized. If they failed, the black race would “sink into a state of hopeless inferiority.”

The Committee recruited Plessy for their case. Plessy’s main qualification was that he was “white enough to buy a ticket and black enough to get arrested.” At 7/8 white (or 1/8 black, depending on your perspective), he was an octoroon and under Louisiana state law was considered a Negro, but was fair-complexioned with Caucasian features. He could easily board and probably make the journey without incident if he so chose.

Leaving nothing to chance, the Committee wanted to make sure Plessy would be charged with violating the Separate Car Act, so they hired a private detective. When the conductor took Plessy’s ticket, Plessy claimed he was black and the detective dutifully arrested him and charged him for violating the Separate Car Act.

The Committee left little to chance… except the outcome of the case.

The case first went to trial in New Orleans before local judge John Howard Ferguson. In an earlier case involving travel to Mississippi he had ruled the Separate Car Act was unconstitutional because it violated the Commerce Clause. However, since this case involved only travel within Louisiana, Ferguson upheld the Separate Car Act. The Louisiana Supreme Court agreed with Ferguson’s ruling and the case headed to the Supreme Court.

The Case-  Plessy v Ferguson, 1896

At issue was whether a state’s mandating racial segregation on trains violated the Thirteenth Amendment abolishing slavery and the Fourteenth Amendment’s Equal Protection clause. Writing the majority opinion was Justice Henry Brown, the second-most senior Justice on the bench.

The opinion is conflicting, to say the least.

After rejecting the plaintiff’s Thirteenth Amendment argument that separate accommodations constitute slavery, he turned to the Fourteenth Amendment issue. He started out well enough:

“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law….”

Then, in an inexplicable contradiction:

“…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.”

This leaves one to wonder what “absolute equality” is if it does not include social equality. In his dissent Justice John Harlan reasoned if it is permissible to separate citizens by race, the government could also separate people as Catholic or Protestant. (Plessy’s attorney also wondered if the government could segregate people based upon the color of their hair. The observation was not well received by the concurring Justices.)

Ignoring thirty years of evidence with the Black Codes, the Redeemer movement and the KKK, Brown countered it was perfectly fine to segregate as long as the “exercise of police power must be reasonable… and not for the oppression of a particular class.”   In his dissent Harlan called garbage when he saw it by pointing out the obvious:

“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.” Slicing through Brown’s equivocations, Harlan wrote the law was enacted “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.” Separate, yes.   Equal?

Brown thought so. Just because the races are separate does not imply one is inferior. In fact, if there was an assumption of inferiority it was solely because “the colored race chooses to put that construction upon it.” So the Equal Protection clause was not violated by segregation so long as the races are treated equally.

Of course, they absolutely were not. In a hypothetical that defies credulity, Brown admitted as much by saying “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

Harlan’s rebuttal became a civil rights beacon that shone across the twentieth century:

“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 Louisiana statute was upheld by a 7-1 vote. “Separate but equal”, though the words in that order do not appear anywhere in the opinion, became the law of the land.


Plessy tops our list because it cast a shadow two generations long over millions of people. I cannot find another single ruling that changed the lives of so many so disastrously for so long.

In a chilling bit of prescience, Harlan’s lone dissent describes the coming Jim Crow laws: if the government could segregate trains, “why may it not, upon like grounds, punish whites and blacks who ride together in streetcars….? Why may it not require sheriffs to assign whites to one side of a courtroom 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?”

Within fifteen years of Plessy every southern state had such laws on the books. After 1901 the South would not send another black lawmaker to Congress until 1973.

Brown v Board of Education (1954) punctured the “separate but equal” myth, but it would take another decade before the Civil Rights Act of 1964 finally outlawed segregation. A man born when gavel landed on Plessy would live 68 long years under its yoke. Perhaps the magnitude of that fateful decision is best illustrated in an alternate history, where Plessy had been adjudicated properly:

The Civil Rights movement would have taken place in the 1890’s. Different heroes would have emerged. We may have never met Medgar Evers or Martin Luther King or Thurgood Marshall, but Emmett Till might still be alive as well as the three thousand blacks who were lynched. African-Americans would have been full participants in both world wars. The cross-current of desegregation in the 1960’s would have been a trickle. Obama may not have been elected President….

Who knows how much larger our GDP might be, or what wonders might have been invented, or what leaders would have emerged if Plessy had been decided differently.

Harlan peered into the future and saw the decision for what it was, writing “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.


Unlike Roe v Wade or Kelo v New London, the Plessy ruling did not create major headlines. It came to be reviled gradually as civil rights lawyers like Thurgood Marshall chipped away at it bit-by-bit. The concurring Justices never lived long enough to see the full impact of their disaster. The last concurring Justice died in 1924, decades before Brown. In a bit of karmic serendipity John Harlan’s grandson, John Harlan II, served on the Court starting in 1955, the year after Brown was decided. One of his first decisions was Brown II, which required school desegregation “with all deliberate speed.”

And Homer Plessy?

After the Court ruling he pled “guilty” to his crime and paid a $25 fine. For the remainder of his life he lived in relative anonymity. He sold insurance, raised a family with his wife Louise and was active in his church and community. Plessy died in 1925 at the age of 61, in New Orleans.

But the case that bears his name echoes even to the present day.   Today you can visit the New Orleans Civil Rights Memorial at the corner of Royal and Press Streets. Locals call it Plessy Park. A private school in New Orleans’ Seventh Ward is named in his honor. Every year Louisiana celebrates Homer A. Plessy Day.

Perhaps the most touching coda to this sad chapter is this: on February 11, 2009 Keith Plessy and Phoebe Ferguson formed the Plessy & Ferguson Foundation, dedicated to “maintaining the relevance of Plessy v Ferguson….” Yes, they are direct descendants. You can visit their website at

And, on February 12, 2009, Lincoln’s 200th birthday, descendants of Plessy and Ferguson placed a marker at the corner of Press Street and Royal.

A Final Word

What’s troubling about this case is that I can find no ulterior motives or predispositions in any of the concurring Justices. Brown was born into Massachusetts’ upper middle class, graduated Yale and attended a few semesters of law school at both Yale and Harvard but never received a law degree (a practice not uncommon at the time).

There is nothing to suggest a racist streak in Brown nor an abolitionist one; in fact he sat out the Civil War, choosing instead to hire a substitute (again a common practice for the well-off at the time). He was wealthy enough that he could afford to leave his law practice and take a low-paying job as a federal judge.   Through a series of appointments and patronage he was confirmed as a Supreme Court Justice fifteen years later.

Perhaps in these sparse clues we can find a reason for ruling the way he did: Brown simply followed the practice of the times. He and the Court reflected the excesses of the Gilded Age. In fact all but one of the concurring Justices were from northern states- Pennsylvania, Massachusetts and New York. Brown was regarded as a solid though not exactly shining member of the Court, and therein may lie another clue: like football teams wax and wane, perhaps Courts do, too. This was a weak Court. Unless the names Rufus Peckham or Melville Fuller ring any particular legal bells, I rest my case. (Peckham wrote the majority opinion in Lochner v New York (1905), another Court disaster albeit of lesser infamy.)

In a staggering bit of irony Justice Harlan- the lone dissenting voice- was not only a Southerner, but a former slaveholder.

I’m still conflicted by all this. On the one hand we find in Harlan a man who truly left his past and interpreted the law apart from any personal feelings or history or prevailing public opinions. But on the other hand sat seven men who were trapped by the customs of their times; who could not see that a new liberty had been birthed at terrible cost and who bore the awesome responsibility to nurture it.

And in the end, I suppose that’s what’s most disconcerting about all of the cases we’ve looked at: that the best constitutional scholars in the land, hearing the same argument about the same law and interpreting the same Constitution, can arrive at different conclusions based not on objective law but subjective interpretation and personal experience.

Some are comfortable with idea that Justices interpret the law differently based on their worldviews.

I do not so conclude.

**Enjoy this article?  Reread the entire series, beginning HERE.

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