The Road to Civil Rights
Plessy v. Ferguson
In 1890, Governor Francis T. Nicholls of Louisiana approved the Separate Car Act, which required white passengers to travel in white rail cars, while African-Americans were restricted to "Colored Only" cars. Governor Nicholls was one of many southern Democratic leaders who had pledged to maintain civil rights policies after the departure of Federal troops as part of the presidential compromise of 1876. During his first term (1877-1880), Nicholls had fostered good feelings among the races. By the time of his second term (1888-1892), he no longer felt bound by his pledge as the Supreme Court eroded protections for African-Americans and public attitudes changed.
A critical test of the Separate Car Act occurred on June 7, 1892, when 30-year old Homer Plessy, an African-American, walked to the Press Street railroad depot in New Orleans. He bought a first class ticket to Covington on the train that would depart at 4:15 p.m., cross Lake Pontchartrain, and arrive in Covington 2 hours later. Plessy took a seat in the car reserved for whites.
As the train began moving, the conductor informed Plessy that he would have to move to the "colored" car. Plessy refused, indicating he had bought his ticket and expected to be taken to Covington.
The incident was not random. A group of New Orleans citizens had decided to challenge the law. Plessy had been selected because his light skin probably would have let him ride in the "whites only" car without challenge. By agreement with the East Louisiana Railroad, after the conductor and Plessy had completed their planned interaction, the conductor signaled to stop the train. A private detective hired by the citizens group warned Plessy that he was subject to arrest. When Plessy refused to move, he was taken to Elysian Fields Avenue for booking at the 5th Precinct Station. He was soon released on bond to assure he would appear for trial. The bond was $500, paid by a member of the citizens group.
At the trial, Judge John Howard Ferguson ruled that the State had a legal right to regulate railroad companies operating solely within its borders. He also denied that Plessy had been deprived of his liberty. "He was simply deprived of the liberty of doing as he pleased, and of violating a penal statute with impunity." The State Supreme Court concurred in Judge Ferguson's decision.
By the time Plessy v. Ferguson reached the Supreme Court in 1896, seven Justices from the Reconstruction era had been replaced in the preceding decade. African-Americans were increasingly pessimistic that their rights would be upheld, prompting some prominent leaders, including Booker T. Washington, to focus on finding ways to succeed within the constraints of Jim Crow restrictions.
The Supreme Court ruled, 7 to 1 (one Justice did not participate in the ruling), on May 18, 1896, that laws segregating the races on a separate-but-equal basis were constitutional. In a ruling written by Justice Henry Billings Brown, a Massachusetts native who lived in Michigan, the court rejected the view that the State law violated the 14th Amendment. The test of constitutionality was the "reasonableness" of segregation laws. In determining reasonableness, legislators were "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."
Justice Brown rejected the argument that the Separate Car Act implied that African-Americans were an inferior race. "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." He also disagreed 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." He added that legislation "is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences."
Justice John Marshall Harlan of Kentucky cast the lone dissenting vote. A one-time slave-owner, Harlan had opposed secession and fought in the Union Army during the Civil War, but also opposed emancipation of the slaves and the civil rights protections accorded the freedmen after the war. However, he renounced these views in reaction to the excesses of the Ku Klux Klan, and became a Republican in 1869. President Hayes appointed Harlan to the Supreme Court in 1877. Woodward said of him:
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. [Birth, p. 102]
In his dissent, Justice Harlan argued that the Separate Car Act discriminated against African-Americans in violation of the 13th and 14th amendments:
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 . . . . 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.
Justice Harlan predicted that the court's ruling "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 separate-but-equal was acceptable on railroads, he asked, what would keep States from enacting laws that required white citizens and African-Americans to walk only on alternative sides of the street, or apply similar restrictions to streetcars and other vehicles, and to courtrooms, juries, or legislatures? "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision by this tribunal in the Dred Scott Case."
Having found that equal but separate facilities were acceptable, the Supreme Court returned the case to the lower court for sentencing. On January 11, 1897, Judge Joshua Baker (Ferguson had stepped down in 1896) accepted Plessy's guilty plea and fined him $25. As author Keith Weldon Medley put it, Plessy "walked out into the brave new world of a segregated Louisiana." [Medley, Keith Weldon, "The Sad Story of how 'Separate But Equal' Was Born," Smithsonian, February 1994, p. 105-117]
Although Plessy v. Ferguson is now viewed as one of the Supreme Court's most disgraceful rulings, contemporary observers took little notice of it, in part because of the series of earlier rulings on civil rights issues. Woodward summarized the reaction:
[The] country as a whole received the news of its momentous decision upholding the "separate but equal" doctrine in relative silence and apparent indifference. Thirteen years earlier the Civil Rights Cases had precipitated pages of news reports, hundreds of editorials, indignant rallies, congressional bills, a Senate report, and much general debate. In striking contrast, the Plessy decision was accorded only short, inconspicuous news reports and virtually no editorial comment outside the Negro press. A great change had taken place, and the Court evidently now gave voice to the dominant mood of the country. [Birth, p. 103]
Professor Harvey Fireside, in a book about Plessy v. Ferguson , agreed that the decision "caused scarcely a ripple when it was announced." He explained:
The next day's New York Times relegated it to page 3 of its second section, where it was in company with the railroad news. The Times briefly reported the Court's validation of the Louisiana segregation law for railroad travel, noting merely two of the grounds on which the opinion was based: that the law applied only to a railroad operating entirely within the state (so did not involve the interstate commerce powers of Congress), and that the cited precedents included federal and state laws permitting the establishment of "separate schools for children of the two races." [Fireside, Harvey, Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism , Carroll and Graf Publishers, 2004, p. 224-225]
Justice Harlan's prediction of the consequences of the ruling proved accurate. Prior to Plessy v. Ferguson , separation of passengers on railroads had been the most common form of segregation, but it was not universal in the South. Woodward explained:
South Carolina did not adopt that until 1898, North Carolina in 1899, and Virginia, the last, in 1900. Only three states had required or authorized the Jim Crow waiting room in railway stations before 1899, but in the next decade nearly all of the other Southern states fell in line. The adoption of laws applying to new subjects tended to take place in waves of popularity. Street cars had been common in Southern cities since the 'eighties, but only Georgia had a segregation law applying to them before the end of the century. Then in quick succession North Carolina and Virginia adopted such a law in 1901, Louisiana in 1902, Arkansas, South Carolina, and Tennessee in 1903, Mississippi and Maryland in 1904, Florida in 1905, and Oklahoma in 1907. These laws referred to separation within cars, but a Montgomery city ordinance of 1906 was the first to require a completely separate Jim Crow street car. During these years the older seaboard states of the South also extended the segregation laws to steamboats . . . . Only a sampling is possible here. For up and down the avenues and byways of Southern life appeared with increasing profusion the little signs: "Whites Only" or "Colored." [Strange Career , p. 81-82]
As Fireside illustrated, "Plessy was seen throughout the South as an invitation to treat African Americans virtually as lepers." [p. 224] The races would be kept "separate," but "equal" was another matter:
In transportation most trains would not admit black passengers to Pullman sleeping cars, dining cars, or club cars. When baggage and mail cars were added behind the locomotive, a Jim Crow car invariably followed (or was de facto half of the baggage car). Its dingy interior, lack of heat or carpeting, and filthy toilet were a far cry from the quality coaches designed for whites. Nor was there complete racial separation, since whites who smoked or drank, as well as shackled prisoners accompanied by guards, were routinely found in the Jim Crow car. [Separate and Unequal , p. 230]