Supreme Decisions, Volume 2

Great Constitutional Cases and Their Impact, Volume Two: Since 1896

Melvin I. Urofsky

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429972607
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Supreme Decisions: Great Constitutional Cases and Their Impact, covers twenty-four Supreme Court cases (twelve per volume) that have shaped American constitutional law. Interpretive chapters shed light on the nuances of each case, the individuals involved, and the social, political, and cultural context at that particular moment in history. Discussing cases from nearly every decade in a two-hundred-year span, Melvin I. Urofsky expounds on the political climate of the United States from the country's infancy through the new millennium. Featuring Marbury v. Madison, Dred Scott v. Sandford, Miranda v. Arizona, Brown v. Board of Education, and many more, this text covers foundational rulings and more recent decisions. Written with students in mind, Melvin I. Urofsky's voice offers compelling and fascinating accounts of American legal milestones.

chapter twelve

The Case of the Almost-White Traveler

Plessy v. Ferguson (1896)

ON JUNE 7, 1892, Homer Plessy walked into the Press Street Depot in New Orleans, bought a first-class ticket to Covington, and boarded the East Louisiana Railroad’s Number 8 train. Most passengers who buy tickets and get on a train or a bus or a plane assume that they have embarked on a journey to their destination. Homer Plessy had no such illusions. He expected that he would either be forced off the train or arrested or both, and he was not disappointed. As the train pulled away from the station the conductor asked the light-complected Plessy if he was a “colored man.” Plessy said he was and the conductor told him to move to the colored car. Homer Plessy refused. “I am an American citizen,” he told the trainman. “I have paid for a first-class ticket, and intend to ride to Covington in the first-class car.” The conductor stopped the train, and Detective Christopher Cain boarded the car, arrested Plessy, and forcibly dragged him off the train with the help of a few other passengers. After a night in jail, Plessy appeared in criminal court before Judge John Howard Ferguson to answer charges of violating Section 2 of an 1890 Louisiana law mandating separate railroad cars for white and colored passengers. The case that bears their names gave birth to legalized apartheid in the United States, the era of Jim Crow.

The Freedmen after the Civil War

The Civil War and the Thirteenth Amendment brought an end to slavery, but did not give the former bondsmen either legal or political equality. In fact, the Southern state almost immediately passed a series of laws known as “Black Codes,” which, if not enslaving the freedmen, severely restricted their freedoms and put them at the mercy of whites. Opposition to black freedom often took extra-legal forms as well, as the white-sheeted Ku Klux Klan rode the countryside harassing, brutalizing, and sometimes murdering former slaves.

The Reconstruction congresses tried to protect the freedmen through a series of civil rights and enforcement statutes, and also through two more amendments to the U.S. Constitution. The Fourteenth Amendment defined as a citizen of the United States any person born in the country or who had immigrated and been naturalized. It also prohibited the states from denying to any citizen the due process of law or the equal protection of the laws, or from abridging the privileges and immunities attached to citizenship. The Fifteenth Amendment declared that the right to vote could not be denied because of race. During the time when Union troops occupied the former Confederate states, the army protected the freedmen and enforced these rights, while white Southerners seethed with resentment.

A Confederate soldier who returned to New Orleans after the war wrote how he hoped “the day will come when we have the upper hand of those black scondrels [sic] and we will have no mercy for them. We will kill them like dogs.” His sentiment reflected that of many other whites in the defeated South, but while Northerners evidenced less overt racial prejudice, for the most part white Americans, both North and South, disdained blacks as morally and intellectually inferior, people who would never be able to take their place as equals in the American polis.

By the 1870s the North had tired of the crusade. Slavery had been abolished, laws had been passed protecting the rights of those formerly enslaved, and the Constitution had been amended to safeguard the rights of citizenship. Now the former slaves and their former owners ought to be left alone to work out their new relationship. By the end of the century they had done so, but in a way that guaranteed future strife. The racism that afflicted society in general also affected the Supreme Court, which delivered a devastating blow to efforts to protect the rights of the freedmen in the Civil Rights Cases (1883).

In the last of the great Reconstruction statutes, the 1875 Civil Rights Act, the Republican majority in Congress tried to secure by law some semblance of racial equality that could be protected by the government and by courts. While no one expected that such legislation would change the prevailing racial attitudes held by both Northern and Southern whites, the law aimed to protect the freedmen from deprivation of the minimal rights of citizenship.

A critical provision of the Civil Rights Act prohibited racial discrimination in public places, what would later be called “public accommodations,” which rested on Section 5—the enforcement clause—of the Fourteenth Amendment. Five cases testing the application of this section rose in both the North and South, and the Supreme Court combined them for a single hearing in March 1883. The government argued that the Thirteenth Amendment not only abolished slavery, but had conferred all the rights of free citizens on the former slaves, while the Fourteenth Amendment had given Congress the power to protect those rights through appropriate legislation.

In his opinion for an 8–1 Court, Justice Joseph Bradley denied both of the government’s contentions, and by doing so, robbed the amendments of much of their meaning. Bradley stood on fairly firm ground when he noted that not every example of discrimination against Negroes could be interpreted as a renewal of slavery; therefore the Thirteenth Amendment could not be invoked as a ban on racial prejudice.

Although the Fourteenth Amendment had in fact been drafted specifically to ensure the freedmen’s rights, Bradley denied that Congress had any affirmative powers under the amendment. Congress could only legislate in a remedial manner to correct an unconstitutional law. If a state enacted a law that restricted black rights, Congress could then act to right the injustice. In the absence of positive state action, Congress had no power to initiate action in this area. Bradley also held that if a state failed to take action, but by inaction tolerated discrimination—such as exclusion from hotels, restaurants, and clubs—Congress could still not legislate. By this decision the Court in one stroke nullified all congressional power under the Fourteenth Amendment to protect the freedmen and left their fate to the states. It also invited the Southern states not only to tolerate but to encourage private discrimination. The ruling would remain in force until the Court disavowed it in upholding the 1964 Civil Rights Act, nearly a hundred years after the Civil War ended.

Justice John Marshall Harlan entered the lone dissent in the Civil Rights Cases, pointing out correctly that the Court had eviscerated the Fourteenth Amendment of its meaning. He also noted the bias in the Court’s judgment, since before the war the Court had accorded Congress comparable powers in upholding the various fugitive slave laws. Although he wrote in dissent, Harlan sketched out a theory of “state action” that would become the basis of civil rights jurisprudence several decades later. He utilized the idea of “affected with a public interest,” which the Court had expressed in Munn v. Illinois (1876), and argued that facilities such as railroads, hotels, restaurants, and theaters filled a public function, a notion that had long been recognized in common law and which served as the basis for regulating these services. If such businesses discriminated, then they did so with the consent of the state; this constituted state action and could be reached under the Fourteenth Amendment, even using Bradley’s crabbed view of Section 5 power. Harlan’s ideas would be the basis on which the Court built up a civil rights jurisprudence after World War II.

Not only did the Civil Rights Cases bar Congress from taking affirmative steps against racial discrimination, but states could allow private discrimination simply by looking the other way. But what if states took positive steps to impose racial segregation? What if they not only tolerated private hotels and restaurants from excluding blacks but required them to do so? Theoretically Congress still had the power to reach this type of state action. But if Congress chose not to act—and by 1883 it was clear that Congress no longer had the will or the desire to interfere in the Southern states—would the courts find the state action in violation of the Fourteenth Amendment?

The Beginnings of Jim Crow

Prior to the Civil War the inferior status of slaves had made it unnecessary to pass laws segregating them from white people. Both races could work side by side so long as the slave recognized his or her subordinate place. In the cities, where most free Negroes lived, rudimentary forms of segregation existed prior to 1860, but no uniform pattern emerged. In the North free blacks also labored under harsh restrictions and often found an even more rigid segregation than in the South.

One might have expected the Southern states to have created some system to segregate the races immediately after the war, but this did not happen. Instead, the confusion of Reconstruction led to a number of trends, any one of which might have become dominant. In some states the legislatures imposed rigid separation, but only in certain areas; Texas, for example, required that every train have one car in which all people of color had to sit. The South had had no real system of public education prior to the Civil War, and as the postwar governments dominated by former slaves and carpetbaggers created public schools, these were as often as not segregated by race. Nonetheless, New Orleans had fully integrated schools until 1877, and in North Carolina former slaves routinely sat on juries alongside whites.

Inconsistent segregation practices dominated North and South well into the 1880s. The picture was far from rosy, however, as racial violence grew in the South and the lynching of blacks reached an all-time high in the 1880s and early 1890s. While upper-class whites may have wanted to find some peaceful accommodation with the freedmen, demagogues like Tom Watson of Georgia fomented racial hatred among poor whites.

But although the practices of segregation may have been inconsistent, the white South stood united in the belief that blacks belonged in a secondary status in society, in which they could not exercise political power and would not threaten the social hegemony of whites. Some historians have seen the beginnings of segregation on public transportation, such as steamboats and railroads, as at least in part gender-based. White women had always enjoyed separate first-class train accommodations, so they could be insulated against the crudeness of the men’s smoking car, lower-class whites, and of course slaves and other African Americans, except those who traveled with their mistresses as maids or nannies. The men’s equivalent had been the first-class smoking car, with its bar and spittoons. When freed blacks attempted to buy tickets for these cars, the railroads, sensitive to the patronage and power of their white clients, refused.

In 1878, the Supreme Court in Hall v. DeCuir ruled that states could not prohibit segregation on common carriers such as railroads, streetcars, or riverboats. A dozen years later it approved a Mississippi statute requiring segregation on intrastate carriers in Louisville, New Orleans & Texas Railway v. Mississippi (1890). In doing so the Court essentially acquiesced in the South’s solution to the problems of race relations. Only Justices Harlan and Bradley dissented, on the grounds that such laws, even if confined to intrastate lines, had an inhibitive effect on interstate commerce.

From 1887 to 1892 nine states, including Louisiana, passed laws requiring separation on public conveyances, such as streetcars and railroads. Though they differed in detail, most of these statutes required equal accommodations for black passengers, and imposed fines and even jail terms on railroad employees who did not enforce these regulations. Five of the states also provided criminal fines or imprisonment for passengers who tried to sit in cars from which their race excluded them. The Louisiana Separate Car Act passed in July 1890. In order to “promote the comfort of passengers,” railroads had to provide “equal but separate accommodations for the white and colored races” on lines running in the state.

Challenging the Separate Car Act

The measure marked a dramatic and humiliating reversal of fortune for the black and mulatto citizens of Louisiana. Although a slave state, Louisiana in general and New Orleans in particular had always had, because of their French origins, a more tolerant attitude toward people of color than did other Deep South states. In addition to the usual demarcation between black and white, since the 1700s, New Orleans had acknowledged a third class, gens de couleur libre, sometimes called Creoles, the freed descendants of European fathers and African mothers, who had enjoyed a great deal of autonomy. Although Louisiana, like most Southern states, had laws against marriage between slaves, it did allow free people of color, whites, and the gens de couleur to marry, testify in court against whites, and in some cases inherit property from their fathers. Some became slaveowners themselves, and apparently many of them accumulated significant property. Their social standing, especially in New Orleans, had insulated them from some of the white reaction following the war; for example, public schools in the city had been integrated until 1877. But when whites regained power after the end of Reconstruction in 1877, they saw only two races, and the privileged position of the gens de couleur evaporated; from then on they were black as far as the law was concerned.

Gens de couleur helped form the American Citizens Equal Rights Association when the Separate Car bill was introduced, and they pledged to fight it. Among the members of the committee was Louis A. Martinet, a Creole attorney and doctor who had also founded the New Orleans Crusader, and he and his newspaper became the leading opponents of the law. After its passage his paper called for both a legal challenge and a boycott of those railroads that had segregated cars. “We’ll make a case, a test case,” he editorialized in the Crusader, and “bring it before the Federal Court on the grounds of invasion of the right of a person to travel through the States unmolested.”

Martinet received important help when Albion W. Tourgée, a white lawyer, offered his assistance. Tourgée had fought for the North (and been twice wounded and taken as a prisoner), and after the war had been a lawyer and judge in North Carolina. There he had seen the depredations wrought upon blacks by the Klan and other white terrorist groups, and as a carpetbagger had himself been the victim of some harrowing experiences. He moved back to New York, where he wrote a number of best-selling books, including A Fool’s Errand, by One of the Fools (1879), a novel based on his experiences during Reconstruction. He used his newfound fame and fortune to advocate for black equality, and founded the National Citizens’ Rights Association.

A citizens’ committee drawn primarily from the Creole community raised $3,000 to fund a lawsuit, and Tourgée agreed to be lead counsel in the case. But they also needed a local lawyer, since the challenge to the law would have to go through state courts before it could be appealed to the federal system. A white lawyer, James Walker, finally agreed to take the case in December 1891 for a fee of $1,000. (Tourgée did not accept any fee for his involvement, which stretched over a five-year period.) Martinet did not consider any of the black lawyers in New Orleans competent to raise a constitutional question, since, as he explained, they practiced almost entirely in the police courts.

Tourgée and Martinet considered several possibilities. They could have a black passenger buy a ticket outside of Louisiana and then travel into the state, thus raising a challenge to the law under the commerce clause. They might have a fair-skinned mulatto attempt to enter the ladies’ car, but there they ran into the problem, as Martinet noted, that she might not be refused admission. In New Orleans, he wrote to Tourgée, “people of tolerably fair complexion, even if unmistakably colored, enjoy here a large degree of immunity from the accursed prejudice.”

But Tourgée wanted someone who was an octoroon, a person who was “of not more than one eighth colored blood,” because he believed the winning strategy would be to expose the ambiguities in the definition of race. How did the law, or a train conductor, determine the race of a passenger? “It is a question,” Tourgée told his colleague, that the Supreme Court “may as well take up, if for nothing else, to let the court sharpen its wits on.” Martinet agreed, and in New Orleans began talking to sympathetic railroad officials who wanted the law overturned for their own financial reasons. It would not do if their test passenger was merely excluded from boarding or even thrown off the train; he would have to be arrested so that a real case existed and he could claim injury in federal court. One railway informed him that it did not enforce the law, while another said that though it opposed the statute as too costly, it did not want to go against it publicly. Then the Louisville & Nashville line agreed to a test case. As it happened, for reasons neither Martinet nor Tourgée expected, their test case fizzled.

On February 24, 1892, the twenty-one-year-old Daniel Desdunes purchased a first-class ticket on the Louisville & Nashville from New Orleans to Mobile, Alabama, and took a seat in the whites-only car. He was arrested according to the plan, and charged with a criminal violation of the Separate Car Act. Tourgée, Martinet, and the local ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Reviewer Acknowledgments
• Introduction
• Volume 2: Since 1896
• Constitution of the United States
• Glossary
• Index