In Plessy v. Ferguson, 163 U.S. 537 (1896), the Supreme Court upheld a Louisiana statute requiring separate accommodations for persons of color on passenger trains under what became known as the "separate but equal" doctrine. Plessy remained the law of the land for more than half a century during which many states in the former Confederacy continued to enact and enforce onerous Jim Crow laws requiring the separation of whites and colored persons in most areas of public life. Plessy was not overturned until 1954 when the Supreme Court issued its landmark decision in Brown v. Board of Education of Topeka rejecting the separate but equal doctrine and ending legal segregation of the races in schools and public accommodations.
Today, it is beyond question that the doctrine of separate but equal is both legally and morally flawed. In that sense at least, it is clear Plessy was wrongly decided. The simple explanation for the result in Plessy is that the justices who signed on to the majority opinion were unabashed racists. Indeed, there is little doubt that by today's standards they were. But such an explanation gives little insight into why Plessy was decided the way it was and why it endured for so long. Plessy was a 7 to 1 opinion, with Justice Harlan the lone dissenter and one justice, Brewer, not participating. Harlan decried the majorities concept of "separate but equal" and espoused a more modern view that separation of the races in public life necessarily imposes an inferior status on all who are not part of the dominant race. Despite such forward thinking in terms of race relations, even Harlan expressed in dissent his own personal belief in the inherent inferiority of the black race as compared to the white race. Thus, he too was a confirmed racist as that term is understood today .
To truly understand why Plessy was decided the way it was and why it endured for so long, it is necessary to view the decision in its historical context and the rationale behind the separate but equal doctrine adopted by the Court to justify its decision. Homer Plessy, who was seven-eighths white and one eight black, got himself arrested for violating a Louisiana statute requiring separate accommodations for white and colored passengers on passenger trains operating within the state. He refused to enter a plea to the charge on the grounds that the law was unconstitutional. The Louisiana District Court ordered him to be bound over for trial. Plessy then petitioned the Supreme Court for a writ of prohibition to stop the State from prosecuting him.
At the Supreme Court, Plessy argued the Louisiana statute violated both the Thirteenth and Fourteenth Amendments to the Constitution, which had been adopted after the Civil War.
Section 1 of the Thirteenth Amendment states:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The Fourteenth Amendment states in relevant part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In an opinion written by Justice Brown, the Court denied Plessy's petition, concluding that the Louisiana statute did not violate either Amendment. The Court easily dispensed with arguments based on the Thirteenth Amendment by concluding that requiring colored persons to ride in a passenger car separate from whites did not re-establish a condition akin to either slavery or involuntary servitude.
The Court was somewhat more troubled by Plessy's contention that the statute violated the Fourteenth Amendment because it subjected him to unequal treatment under the law. While recognizing that being prohibited from riding in a car designated for whites only was in some ways unequal treatment, the majority drew a distinction between laws that had a direct impact upon "political equality" and laws that related only to "social equality." In Justice Brown's view, the Fourteenth Amendment's prohibition against state laws that deny equal protection under the law simply did not reach so far as to prohibit laws designed to enforce societal norms, even if those norms resulted in unequal treatment of persons of color. Brown compared the Louisiana statute mandating separate accommodations on trains to laws mandating segregated school systems and prohibiting interracial marriage. Such laws had been widely upheld by a variety of state courts and had not been seriously challenged in the federal courts. Brown characterized laws imposing social inequality or separateness as being fundamentally different from laws that prohibited colored persons from fully participating in the legal system, such as by excluding them from juries. According to Brown, the former affected only the social status of colored persons whereas the latter unlawfully discriminated against them by imposing a legal inferiority, which constituted a "step toward reducing them to a condition of servility."
Only Harlan took issue with the idea that a clear distinction can be drawn between social equality and political equality. In Harlan's view, state laws enforcing social inequality between the races necessarily imposed a form of second class citizenship that was contrary to the fundamental principal underlying both the Thirteenth and Fourteenth Amendments that "all person, whether colored or white, shall stand equal before the laws of the States." He considered the separation of white and colored persons on public highways and in railroad cars to be a "badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution," and presciently predicted that the Court's decision would in time come to be regarded as equally "pernicious" as the Dred Scott case decided 40 years earlier wherein the Court had held that former slaves were not and could not ever become citizens of the United States.
Harlan was, nevertheless a racist by today's standards. Even in dissent, he expressed his firm belief in the innate superiority of the white race as compared to the "colored" races:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.
Like Harlan, the vast majority of citizens in 1896 undoubtedly believe in the superiority of the white race and would have understood the words "equal protection of the law" as guaranteeing only "political" or "legal" equality. Few would have understood the phrase "equal protection of the law" to mean that all non-white citizens, including recently freed slaves, were automatically granted a social status equal to whites. Interracial marriage, integrated schools, and universal suffrage were radically progressive ideas in 1896. Segregation in the armed forces did not end until 1948. The Civil Rights Act was not passed until 1964. Simply put, the vast majority of Americans were not ready to accept full equality of the races as that concept is understood today and would not have understood the Thirteenth and Fourteenth Amendments are establishing such equality.
By the middle of the Twentieth Century, however, views about race and race relations had begun to change. When Brown v. Board of Education was decided in 1954, most citizens not residing in the former Confederate states probably would have understood as Justice Harlan did that imposition by law of an inferior social status through separation of the races in public life perpetuates both political and legal inequality and that such laws are designed to reserve certain legal privileges to those of the dominant race while denying others the full protection of the laws. Put another way, most American would have understood the words "equal protection of the law" as prohibiting the enforced legal separation of the races as a means of preserving the superior political and legal status of whites.
Viewed in this light, it can be said that both Plessy v. Ferguson and Brown v. Board of Education were correctly decided. The difference in outcome is not the result of a flawed judicial process or morally corrupt judges, but the result of the passage of time and a change in the generally accepted understanding of what the particular words used in the Fourteenth Amendments actually mean. Although the words of the Fourteenth Amendment did not change between 1896 and 1954, society did and with it so did the meaning of those words. As a result, the legal standard for determining when "equal protection of the law" has been denied evolved to reflect the common understanding of the people whose conduct the law was intended to govern.
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