In the many years I’ve taught either US History or US Government, covering Plessy involved saying that it upheld the constitutionality of the doctrine of “separate but equal.” That’s it. As I was writing the above summary, I wanted to check on the date of the ruling and went to the Wikipedia article about it. I noticed in the article that Plessy was actually only 1/8th Black. He was 7/8th White. That means he had only one great-grandparent that was Black. If one switches “Black” out and replaces it with “Jew,” he would have been considered as part of the Volksdeutsche under Hitler’s Nuremberg Laws. Louisiana law in the 1890s held that a person’s ancestors from three generations back could condemn a man to a life as a second-class citizen.
The story about Plessy has more interesting details. Plessy boarded a Whites-only streetcar as an act of civil disobedience. He had grown up in Reconstruction-era Louisiana, with no restrictions at all based on race. There was no segregation in his world until after the federal troops left Louisiana in 1877, when Homer Plessy was 15 years old. Heck, Plessy was pretty much a white man in appearance – that’s him in the photograph at the start of this articl. He just associated with the Colored society of multicultural New Orleans.
In 1890, Louisiana passed its strict segregation laws and Plessy was part of a group that wanted to challenge those laws. Plessy wanted to challenge the laws because he felt that, as an American, everyone should get equal treatment. He could have it if he wanted, but that option wasn’t available to other people singled out by Louisiana’s draconian law. The railroad companies wanted to challenge the laws because they didn’t want to take on the expense of additional passenger cars. In 1892, Plessy bought a ticket for the streetcar, sat in the Whites-only car and, when asked if he was White, said he was only 7/8th White. In the four years the case took to get to the Supreme Court, the Court became more segregationist in its makeup and they ruled that since the streetcars for Blacks were equal to streetcars for Whites, the Louisiana laws were constitutional. Never mind that the schools and other facilities for segregated Blacks were of inferior quality: the case dealt with a streetcar, and so only the equality of streetcars was in question.
Justice Henry Billings Brown wrote the majority opinion:
The object of the Fourteenth 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 on color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to the either. … If the two races are to meet upon terms of social equality, it must be the result of voluntary consent of the individuals.
In other words, if a majority didn’t like a minority, that minority was going to receive a beatdown from that majority. The one judge that dissented, Justice John Marshall Harlan, wrote:
I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state and hostile to both the spirit and letter of the Constitution of the United States.
How different would our history have been if it had been Justice Brown in the minority and Justice Harlan writing the majority opinion? We would have not had 58 years of Jim Crow segregation. We would not have had William Rehnquist, later a Chief Justice of the Supreme Court, write the following down when he was a law clerk for the Supreme Court in 1952:
I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues but I think Plessy v. Ferguson was right and should be reaffirmed… To the argument… that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.
A year later, Rehnquist wrote:
The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south do not like the colored people: the constitution restrains them from effecting this dislike through state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.
This man later was nominated to serve on the Supreme Court by Richard Nixon, where he became one of the most conservative justices to sit on the bench. Had we not had that majority ruling in Plessy, would Rehnquist’s opinions have been possible? Would they have been tolerated in a Supreme Court Justice?
We live in an America where what happened, happened. We live in an America where not only was Rehnquist hostile to the idea of using the courts to roll back laws that created second-class citizens, he was also hostile to the doctrine of selective incorporation. The journalist Bob Woodward said of Rehnquist that he ruled, “with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases.”
So what did I learn from my dalliance with the Plessy case? Civil rights for minorities did not follow an ever-upward path in America. There were times when rights were on the ascendant, and times when reactionaries pushed back. Obama’s election is by no means “The End” of the struggle for equality in the United States. Racism in America has produced conditions we may find unimaginable today – and that it can produce them again.