Homer Plessy was a white man who boarded a train carriage in Louisiana, in 1892, and was kicked out because his blood was one eighth African. Plessy was taken to a police station and charged with the crime, recognized by Louisiana law, of having refused to ride the train in a black only carriage.

Plessy petitioned the United States Supreme Court to review the case on the ground that the Louisiana statute deprived Plessy of his rights as a citizen of the United States and denied him the equal protection of the laws. The Supreme Court ruled 8 to 1 that the statute did not deprive Plessy of any rights recognized by the Constitution.

As Mr. Justice Henry Brown, a Yale graduate and Detroit lawyer, writing the majority opinion, put it:

"The object of the 14th Amendment was undoubtedly to enforce the absolute equality of [the African and Caucasian 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."

 

The Supreme Court's view of things was hardly new. On the one hand, its majority had held that African-American males were entitled to sit on juries with white males (Strauder v. West Virginia), yet on the other it had held that laws forbidding the intermarriage of the two races were within the police power of the state.  And, in 1883, in United States v. Stanley, the Court had declared that the Civil Rights Act of 1875, authored by Charles Sumner and Benjamin Butler, was unconstitutional, because the 14th Amendment "does not authorize Congress to create a code of municipal law for the regulation of private rights."

As the Stanley court put it:

"The Thirteenth Amendment may be regarded as nullifying all state laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States; and upon this assumption it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major propositions to be true, that Congress has the right and power to pass laws for the prevention of slavery in all its badges, the question remains, is the minor proposition also true, that the denial to any person of admission to an inn or public conveyance does subject that person to a badge of servitude?

 

Is there any similarity between servitudes imposed by the old law and a denial by the owner of an inn or public conveyance, of accommodations, even though the denial be based on the race of the individual? Where does any badge of servitude arise from such an act of denial? What has it to do with the question of slavery?

 

The long existence of African slavery in this country gave us very distinct notions of what it was. . . Congress, by the Civil Rights Act of 1866, undertook to wipe out the necessary incidents of slavery, but Congress did not assume to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship.

 

The scope of the 13th and 14th amendments are different; the former simply abolished slavery: the latter prohibited the states from abridging the privileges and immunities of citizens of the United States; from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different and the powers of Congress under them are different.

 

The only question, then, is whether the refusal to any person of accommodation by an individual, without any sanction by law, inflicts upon such persons a badge of servitude? We are forced to the conclusion that such act of refusal has nothing to do with slavery.  It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre."

 

Mr. Justice Harlan, a Kentuckian, dissented from the majority's view in the Civil Rights Cases, as he did from the majority's view in Plessy v. Ferguson. After reviewing the Supreme Court's history regarding slavery―interpreting the Fugitive Slave Clause, the Fugitive Slave Act of 1850, and the case of Dred Scott―Harlan sets the record straight.

"My brethren admit that the 13th amendment established and decreed universal civil freedom throughout the United States. But did freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the Africans to the several States for protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide?

 

That there are burdens which constitute badges of servitude and that the power to enforce by legislation the 13th amendment, for the eradication of such badges are propositions which ought to be deemed indisputable. And I submit that the majority's opinion conclusively shows that the legislation at issue here is constitutional. They admit that the 13th amendment established freedom; that the Civil Rights Act of 1866 sought to remove all incidents of slavery and thus Congress may enact laws to protect Africans against the deprivation of any civil right that belongs to free men."

 

Continuing his theme in his dissent, in Plessy, Harlan wrote this:

"We have before us a state law that compels, under penalties, the separation of the two races in railroad passenger cars. Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.

 

The 13th amendment not only struck down the institution of slavery, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. That amendment was followed by the 14th. These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. They declared in legal effect that the law in the States shall be the same for the black as well as the white. We have also said that the amendments contain the necessary implication of a positive immunity—the right to exemption from unfriendly legislation against the Africans distinctly as Africans, implying inferiority in civil society.

 

The fundamental objection to the Louisiana law, therefore, is that it interferes with the personal freedom of citizens. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

 

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this court in the Dred Scott case. The recent amendments to the Constitution, it was thought, had overruled the principles expressed in that case. But it seems that we have yet, in some of the States, a dominant race―a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of African citizens, but will encourage the belief that it is possible to defeat the intent of the 13th and 14th amendments.

 

Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.

 

It is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway. May it now be reasonably expected that astute men of the dominant race, who affect to be disturbed that the integrity of the white race may be corrupted, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box and in the jury room? I cannot see but that this decision will allow almost any law enacted for the purpose of humiliating citizens of the United States of a particular race."

 

Homer Plessy

The Supreme Court in 1892

Joe Ryan