Monday, October 10, 2011

Plessy v Ferguson and a Color Blind Constitution?

In 1896 in the case Plessy v Ferguson the Supreme Court held that racial segregation was constitutional if the conditions were “separate but equal.” Justice John Marshall Harlan dissented with the ringing declaration that the “constitution is color blind[!]” This decision was later overturned in Brown v Board of Education of Topeka in 1954. A few years later when I was in elementary school the Brown decision was celebrated in Social Studies class as an endorsement of Justice Harlan’s dissent. However, by the time to I got to college I realized there was a huge debate, both sides totally rejecting the Plessy decision, as to whether the constitution was in fact or should be color blind. And apparently Brown v Board of Education of Topeka did not follow the logic of Justice Harlan’s dissent.

I thought that I might take a look at the decision and see what it actually said. Any real lawyers are free to correct my errors.


Was The statute of Louisiana, acts of 1890, c. 111, requiring railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and colored races, . . (Syllabus) a violation of the Thirteenth and Fourteenth Amendments to the Constitution.

Homer Plessy (I/8 colored and 7/8 white), in an intentional test of the law, boarded a white compartment, informed the conductor he was colored, refused instructions to move to the other car, was removed from the train and arrested. He was convicted in a trial presided over by John Howard Fergusen, appealed to the Louisiana Supreme Court which ruled against him and then appealed to the Supreme court that the law violated his rights under the 13th and 14th Amendments to the Constitution, arguing these admendments made the Constitution color blind.

I extracted key sections of the decision and dissent, key questions to watch are:

1. Is the the issue Federal or State Jurisdiction?
2. Does the 13th amendment merely prohibit slavery or also enforcing what were badges of slavery?
3. Does the 14th amendment allow a government act to know the race of persons effected?
4. What did the Court actually rule?

Justice Brown for the Court

That it [the Louisiana law] does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. . . .. This amendment was said in the Slaughterhouse Cases, 16 Wall. 36, to have been intended primarily to abolish slavery


A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.


The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, 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. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.

In the Civil Rights Case, 109 U.S. 3, it was held that an act of Congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court

The decision provides a long discussion expressing the opinion that this is in the police powers of the state and the Federal government most recognize any reasonable state legislation.

. . .we think the enforced separation of the races, as applied to the internal commerce of the State, 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,. . .

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.


It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

Justice Harlan in Dissent

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act "white and colored races" necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise

of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.


In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the [p555] race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty . . .


These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country,


These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely to secure to a race recently emancipated, a race that through [p556] many generations have been held in slavery, all the civil rights that the superior race enjoy.

They declared, in legal effect, this court has further said, that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.
We also said:

The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.


It as said in argument that the statute of Louisiana does [p557] not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. 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. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, 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. No one would be so wanting in candor a to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. "Personal liberty," . .


It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach.


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. 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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, 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.


The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the [p561] war under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned.


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.


The Court did not actually rule on “Separate but Equal” that was the language of the state law. In the Civil Rights Cases (1883), the court limited the 14th Amendment to judicial review of state legislation but Congress could not directly legislate on individuals. With this limitation in mind the court held that it must accept any reasonable state legislation. The court found that “Separate but Equal” was a reasonable act. Actually the decision allowed states to adopt any "reasonable" policy it wanted from integration to separate but equal.  The court offhandedly dismissed any claim that segration created badge of servitude.

Justice Harlan, made a careful case that a railroad was public highway thus under Federal jurisdiction, and that the railroad as the operator of a public highway was performing an official function. In Strauder v. West Virginia the court had held that persons performing an official function were subject to the Fourteenth Amendment thus the case was direct Federal Jurisdiction. He understood the Fourteenth Admdnmdmet to mean that a government official could “not know the race” of a person subject to his official act. He insisted that segragation imposed real badge of servitude. Thus his Cri du Coeur  affirming Homer Plessey's claim “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.”  It seems he is saying any decision by race is unacceptable per se; not just ones causing segragation.

The effects of this ruling were a disaster to civil rights and race relations. “separate but equal’ became slogan with a life far beyond the the decision. It provided a means for those who wanted to restrict the rights of blacks to do so while claming to support equality. Laws were passed or amended all over the south to establish or legitimize and enforce segregation. Very seldom was separate equal, often very unequal. As Justice Harlan foretold, despite the claim of equality, it created a "badge of servitude” and de facto legal endorsement to those who claimed blacks were inferior and wanted to treat them as such. An irony is the Louisiana railroad had objected to law on the ground that it would require them to maintain extra cars with no extra revenue. If it was not for Plessy allowing legal segregation, the extra cost of maintaining duplicate, if inferior, facilities would have created a friction that would have moved toward integration. I think the rule of Jim Crow would have been shorter, less unjust and ended with less trauma. Justice Harlan’s prediction ” 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.” is a huge understatement..

In 1954 the Supreme Court overturned Plessy v Fergusen in the landmark Brown v Board of Education case in a unanimous opinion written by Chief Justice Warren.

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

But about the question which stared me on this - “is the Constitution color blind?“ Prior to Brown there were arguments against Plessey, segregation was wrong, making decisions based on race was wrong, and these gave a de facto. endorsement to the claim blacks are inferior. No one really separated them out as different arguments. After Brown came the issue: can the government enforce integration by making decisions based on race or is it forbidden to know the race of a person? Both Justice Harlan's dissent and Chief Justice Warrens' opinion use all three. Chief Justice Warren seems to leave the issue of alone. Intentional segregation is unconstitutional and is to be removed with “deliberate speed“. Segregation that occurs due to demographic accident or cultural and personal choice is not discussed, and at least for initial correctives government may make decisions based on race to enforce integration.  Chief Justice Warren later actions seem to support forcing integration and I think Justice Harlan would have repeated his comment "[the Constitution] does not permit any public authority to know the race" of a citizen.

So the debate continues those who hold that the Fouteenth Amendment allows the Government to take reasonable action based on race to achieve integration or cultural diversity; though noted their meaning of “reasonable” is very deferent than Justice Brown’s And those who would say with Justice Harlan the Fourteenth Amendment says what it means and means what it says - the government, Federal and state, in action and regulation should  not know the race of a citizen - that 'the Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, '.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
Martin Luther King, August 28, 1963.


U.S. Constitution

Amendment 13 1. 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.

Amendment 14 1. 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.

Court cases

Plessy v Ferguson
    Justice Brown for the Court
    Justice Harlan in dissent

Scott v. Sandford (Dred Scot Decision)
Slaughter House Cases
Ex Parte Virginia
Strauder v. West Virginia
Civil Rights Cases 1883

Brown v Board of Education of Topeka

Related Posts

The Speech
The Water Tastes the Same
The Stealth Justice

Update 11/05/2011:  I corrected some spelling  format and word choice errors, and added a few lines to make the discussion clearer.


LFC said...

I'm too tired to read all the Plessy excerpts now. But I did look at the bold-font sentences in Harlan's dissent, and right after he says the Constitution is color blind he says that "in terms of civil rights, citizens are equal before the law." Certainly Brown v. Bd. of Ed. is entirely consistent with that statement.

If what you are getting at with the refs to the color-blind Constitution is affirmative action, why not say so? Why beat around the bush?

I'm not up on the recent affirmative action cases and I'm not a civil rights lawyer, but the legal issues surrounding affirmative action can get very tangled and complex. Recall, incidentally, that it was Justice Powell, a conservative from Virginia and a Nixon appointee, who wrote the decision in Bakke holding that universities could take race into account in admissions decisions. This I think is the (or a) key precedent in the area of affirmative action in admissions and has not been overturned, as far as I'm aware. The recent (i.e. last several years) decisions involving the Univ. of Michigan (undergrad and law school admissions) claim to follow the logic of Bakke, again as far as I'm aware.

LFC said...

Btw again, Nina Totenberg had an NPR piece on Justice Thomas a few days ago (which I heard part of) and it prompted a long comment thread at The Volokh Conspiracy blog (which I almost never read). Google "Totenberg + Justice Thomas".

hank_F_M said...


Thanks for reading.

The question I was asking myself was “what did Justice Harlan say?” as those things can be very contextual. The post was too long already so left Brown v Bd of Ed with just the quote overturning Plessy. Following it further will have to be another post for another year.

Ignoring what they are saying both the opinion and dissent are much easier reading than the more recent decisions. Except for Justice Thomas, I can here “Sister Mary Holy Water” teaching English composition. But good composition has nothing to do with whether something is right or wrong or worth writing. (I didn’t go to Catholic schools, but I recognize the style.)

I did give a quick look at the the U of Mich cases, yes affirmative action is narrowly upheld, but looking at that tangle of opinions concurrences and dissents is where I decided to restrict the topic. Brown v Bd of Ed is consistent with Justice Harlan’s dissent but it is a very different logic. The interesting thing is that Plessy did not directly rule on Separate but Equal it ruled that the Federal courts must accept any broadly “reasonable” action by the state legislature, it would have allowed one state to have separate but equal and another to have affirmative action and another to be strictly color blind. (How Separate but Equal can be reasonable is beyond me.) I doubt AA would pass muster with Justice Harlan, who is Justice Thomas‘s favorite predecessor.

Hank’s Eclectic Meanderings

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