THE STORY OF SEPARATE
BUT EQUAL
In
the case of Plessy v Ferguson
(163
U.S. 537, 1896), the Supreme Court set the precedent of ‘separate but
equal’: separate facilities for blacks did not offend Constitutional
provisions so long as they were equal to those provided whites. Louisiana had a
law requiring separate cars for the races – or partitions to separate the
races if there was just a single car. Plessy sat in a railway car
designated for use by whites only and was told by the conductor to leave. As the
Court described it, upon his “refusal to comply with such order, he was, with
the aid of a police officer, forcibly ejected from said coach, and hurried off
to, and imprisoned in, the parish jail” in New Orleans.
The
Court found that the requirement of separate accommodations was a reasonable
regulation, made “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.” Social prejudices,
said the Court, cannot be overcome by legislation, and if the races “are to
meet upon terms of social equality, it must be the result of natural affinities,
a mutual appreciation of each other’s merits, and a voluntary consent of
individuals.” Although Plessy argued that enforced separation “stamps
the colored race with a badge of inferiority,” the majority held that it is
“not by reason of anything found in the act, but solely because the colored
race chooses to put that construction upon it.”
What
is less known about the case is that Plessy “was seven-eighths Caucasian and
one-eighth African blood; that the mixture of colored blood was not discernible
in him,” so the suit involved a claim “that he was entitled to every right,
privilege, and immunity secured to citizens of the United States of the white
race.” Plessy argued that “in a 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.” The Court
conceded it to be so, for the purposes of the case, but argued the statute did
not take his property: either he was a white man who was entitled or a black man
who was not. But who decides, and how? The train conductor seemed to
have power to make racial classifications, but the Court did not see that issue
as properly before it. The state legislatures should properly decide on racial
classifications, but some said “any visible admixture of black blood stamps
the person as belonging to the colored race; others, that it depends upon the
preponderance of blood; and still others, that the predominance of white blood
must only be in the proportion of three-fourths.”
Justice
Harlan was the sole dissenter, claiming that the decision will prove to be as
“pernicious” as the Dred Scott
case, which declared that escaped slaves who traveled North to freedom were
still property and should be returned to their Southern masters. For him,
the statute seemed inconsistent, for example in allowing black nurses to attend
white children but not an adult in bad health. The black employee of a
white woman can not be in the same coach, and the statute criminalizes the
attendant’s “exhibition of zeal in the discharge of duty.” Harlan
also pointed to another group that “is a race so different from our own that
we do not permit those belonging to it to become citizens of the United
States” and are “with few exceptions, absolutely excluded from our
country.” But under the law “a Chinaman can ride in the same passenger coach
with white citizens” yet blacks “many of whom, perhaps, risked their lives
for the preservation of the Union, who are entitled, by law, to participate in
the political control of the state and nation, who are not excluded, by law or
by reason of their race, from public stations of any kind, and who have all the
legal rights that belong to white citizens, are yet declared to be criminals,
liable to imprisonment, if they ride in a public coach occupied by citizens of
the white race.”
Harlan
wondered if the Court’s ruling about the reasonableness of separation would
allow a town to assign the races to different sides of the street or prohibit
the co-mingling of Protestants and Catholics. Perhaps partitions should
also be placed in courtrooms, or even jury boxes and one for the deliberation
room to “prevent black jurors from coming too close to their brother jurors of
the white race.” Unlike the majority, Harlan argued the purpose of the
law was to compel blacks to “keep to themselves” while traveling rather than
keep whites out of black areas, and “no one would be so wanting in candor as
to assert the contrary.” He acknowledged that whites were the dominant race
and said that while “every true man has pride of race” that can be shown in
appropriate situations, but the Thirteenth Amendment abolished slavery and
“prevents the imposition of any burdens or disabilities that constitute badges
of slavery or servitude.” Even though whites were the dominant race, and
“will continue to be so for all time,” he was clear that:
in the 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 is involved.
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