II. Plessy

In Plessy v. Ferguson, the Supreme Court considered Homer Plessy's challenge to a Louisiana law mandating separate railway accommodations for black and white passengers. Did this separate-but-equal requirement “deny to any person” in Louisiana “the equal protection of the laws”? Before considering the Court's negative answer to this question, a brief discussion of significant constitutional and political developments in the decades preceding the Court's decision may provide a helpful backdrop for our consideration of the Court's 1896 construction of the Fourteenth Amendment.

A. The Clause and Pre-Plessy Court Rulings

1. African-Americans and the Post-Civil War New Slavery

Following the April 1865 formal cessation of hostilities in the Civil War and the ratification of the Thirteenth Amendment's formal proscription of slavery, southern states moved to limit the newfound rights of freed persons. “The civil and political status of the freedmen remained unclear at war's end, it being uncertain whether the Thirteenth Amendment did anything more than abolish the legal condition of chattel slavery.”

In 1865, the states of the former Confederacy enacted Black Codes “legislat [ing] the freed slaves into a condition as close to their former one as it was possible to get without actually reinstituting slavery,” and “practically recrea[ting] slavery for African-American agricultural workers by prescribing their labor terms in detail.” Louisiana's Black Code, for instance, provided that “‘[e]very negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro,”’ and mandated that black persons had to have travel permits and obey curfews. Mississippi's Black Code criminalized black ownership, rental, or leasing of property outside of towns and cities and ordered that each black person had to have proof of lawful employment. The Texas Black Code “required blacks to have a contract if the job they were working on lasted more than a month. Once under contract, laborers were at the mercy of their employers, who could fine them for everything from sickness to ‘idleness.”’ African-Americans were also subjected to whippings, lynchings, and the enforcement of the new slavery by governmental authorities and white vigilantes.

Black workers who were not employed or did not have written labor contracts or government licenses allowing them to practice a particular trade were charged with and convicted of vagrancy. Upon conviction, they “were fined heavily and could be hired out by the state for a pittance until the fine was paid.” For example, in 1866, Alabama Governor Robert M. Patton, in exchange for a fee of $5, leased 374 black prisoners to a partnership controlled by the Alabama and Chattanooga Railroad. (Patton later became president of that same railroad. That same year, Texas provided two railroad companies with 250 “convicts,” with the state receiving a fee of $12.50 per month.

 In an 1866 meeting in a Pulaski, Tennessee law office, the Ku Klux Klan (KKK) was first organized. “Although the Ku Klux Klan started as a social club, it soon changed into something far different. The Klan fought Reconstruction and the corresponding drive to allow freed blacks to participate in the political process.” Pursuing “the goal of overthrowing federal domination and reestablishing the subordination of the black population,” the KKK's terroristic atrocities included murder, burning persons at the stake, whippings, the rape of African-American girls, and, in later years, cross burnings.

2. The Civil Rights Act of 1866 and the Fourteenth Amendment

The Black Codes, later defended by Woodrow Wilson as necessary to control freed slaves, “perpetuated a kind of slavery, described as a twilight zone between slavery and freedom, something that resembled the South Africa apartheid laws.” Responding to the codes, the U.S. Congress, over the veto of President Andrew Johnson, enacted the Civil Rights Act of 1866. This statute provided

That all persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Thereafter, the race-conscious thirty-ninth Congress, “aim[ing] to provide an unimpeachable legal foundation” for the 1866 legislation, proposed the Fourteenth Amendment; that amendment was officially added to the Constitution in 1868. At the time of ratification, and reflecting the Reconstruction-era taxonomy of rights (civil, political, and social the Framers of the Amendment generally understood that the Amendment addressed and guaranteed only civil rights and “never expected blacks to become social equals with whites.” (As will be seen, this categorization and understanding of rights is on display in the Plessy Court's decision and analysis of the constitutionality of the separate-but-equal doctrine.)

The Fourteenth Amendment's Equal Protection Clause--“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws” not explicitly define “equal protection” and does not textually specify that which falls within and without the constitutional mandate. The scope and operative meaning of the clause would be supplied by the Supreme Court exercising its arrogated power “to say what the law is” as it exclusively, and with finality, decides whether “to displace the choices of politically responsible officials with those of a small body of appointed, life-tenured justices.”

3. The Court's Initial Interpretations of the Equal Protection Clause

The Court did not find it “difficult to give a meaning” to the Equal Protection Clause in its first encounters with the Fourteenth Amendment. In the Slaughter-House Cases, the Court declared that “[t]he existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.” The “one pervading purpose found [in the Civil War Amendments to the Constitution], lying at the foundation of each” is “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

Strauder v. West Virginia, decided shortly after the end of the First Reconstruction and at the beginning of post-bellum southern home rule, described the “common purpose” of the Equal Protection Clause as “securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.” Contained within the clause's prohibition of the denial of equal protection of the laws is “a necessary implication of a positive immunity, or right, most valuable to the colored race,” the Court stated, a “right to exemption from unfriendly legislation against them distinctively as colored” and “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.”

The Strauder Court also expressed its view of the “abject and ignorant” members of the “colored race” who were “unfitted to command the respect of those who had superior intelligence.” These “mere children . . . . especially needed protection against unfriendly action in the States where they were resident,” the Court opined, and the Fourteenth Amendment “was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.” Recognizing white resistance to the “true spirit and meaning” of the amendment, the Court stated that

it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed.

Three years after its decision in Strauder, the Court held in the Civil Rights Cases that the Fourteenth Amendment's protections did not apply to or prohibit the racially discriminatory actions of private persons. Moving away from a solely black-protective reading and understanding of the Amendment, the Court said that the Amendment “extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.” The Court also cautioned that providing equal protection for African-Americans has its limits. “When a man has emerged from slavery . . . there must be some stage in the progress of his elevation when he takes the rank of mere citizen, and ceases to be the special favorite of the laws . . . .” Thus, a mere eighteen years after the appearance of the reactionary Black Codes, fifteen years after the adoption of the Fourteenth Amendment, and seven years after the end of the First Reconstruction and the federal government's abandonment of blacks living in the former Confederacy, the Court signaled to the Nation that “favoring” African-Americans under the Equal Protection Clause concerned and even troubled the Court.

An additional case in the precedential backdrop, Pace v. Alabama, rejected an equal protection challenge to a state criminal law's penalty enhancement for adultery or fornication engaged in by white-black couples. Punishing those couples more severely than same-race couples did not violate the Equal Protection Clause, the Court reasoned, because the harsher punishment was “directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.” On that view, equal application of the law satisfied the constitutional requirement of the equal protection of the law.

B. The Plessy Court's Decision

1. The Court's Validation Of The Separate-But-Equal Doctrine

Louisiana's Separate Car Law reviewed by the Supreme Court in Plessy v. Ferguson provided that “all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations . . . .” In separating blacks and whites and criminalizing those who dared to step beyond and outside of the state's segregative box, Louisiana drew an explicit and unambiguous color line. Homer Adolphe Plessy (described by the Court as a man “of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood”) stepped over that line in June 1892 when the thirty-year-old shoemaker paid for first-class travel on the East Louisiana railway from New Orleans to Covington, Louisiana and sat in a seat in the coach designated for white passengers. The Citizens' Committee to Test the Constitutionality of the Separate Car Law and local railroad companies “overwhelmingly opposed to the Separate Car Act because of its extra cost and inconvenience,” and had previously made arrangements to have Plessy expelled from the car designated for whites. When a conductor ordered Plessy to move to a seat in the coach for “persons not of the white race,” Plessy refused to move; he was then arrested and imprisoned and charged with violating the separate-but-equal statute.

Plessy argued that the state's law violated the Equal Protection Clause. Rejecting that contention, Justice Henry Billings Brown, writing for the Court, observed that 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 . . . .

Brown opined that the challenged law was a “reasonable regulation,” with the “question of reasonableness” answered by an examination of the state's “liberty to act 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.” The people's usages, customs, traditions, comfort, public peace, and good order: all reflected in state-mandated racial segregation, in the way things were and, in the eyes of the segregationists, should have been. All resistant to Plessy's effort to step out of the color box and over the color line, and his refusal to cede to the noxious doctrine of purported black inferiority previously proclaimed and sanctioned by a Court on which sat several Justices who had at one time owned slaves. All embraced and constitutionalized by the Court as valid reasons to enforce, by law and subject to penalty, a white supremacist structure denying to African-Americans the same access, rights, privileges, and opportunities available to and enjoyed by whites.

This “reasonable regulation,” in Justice Brown's view, did not offend the Fourteenth Amendment, the object of which “was undoubtedly to enforce the absolute equality of the two races before the law.” “Equality” was not “intended to abolish distinctions based upon color,” Brown wrote, “or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” This construction and constriction of the Equal Protection Clause placed social equality concerns beyond the reach of that provision and served as both premise and prelude to the Court's determination that “[l]aws permitting, and even requiring” the separation of the races “do not necessarily imply the inferiority of either race to the other.” Such laws “have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power,” Brown opined, most commonly in “the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.” And, the Justice continued, “[l]aws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.”

Justice Brown's opinion then presented and addressed three assumptions. First, placing Plessy's challenge to Louisiana's apartheid measure in the category of the purportedly fallacious, Brown argued that any “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. . . . [was] not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” That construction rested upon a second assumption, that if “the colored race should become the dominant power in the state legislature . . . it would thereby relegate the white race to an inferior position.” Not so, said Brown: “We imagine that the white race, at least, would not acquiesce in this assumption.” The third assumption, that “social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races,” incorrectly posited that social equality could be achieved by and through law, Brown reasoned. “If the two 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.” In the Court's view, “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.” Distinguishing social rights from civil and political rights, Brown concluded: “If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

2. Justice Harlan: “Our Constitution Is Color-Blind”

The Plessy Court's decision, as we know, was not unanimous. A dissenting Justice John Marshall Harlan rejected the Court's position that any assumption that Louisiana's law placed a badge of inferiority on African-Americans was “because the colored race chooses to put that construction upon it.” “Every one knows,” Harlan wrote, “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.” Thus, Harlan argued, the “real meaning” of the Louisiana law at issue was to denigrate black persons and treat them as if they were inferior:

What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

Justice Harlan's dissent also set forth his metaphoric conception of the Constitution as it is understood and applied in the sphere of civil rights:

[I]n 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.

Many who today invoke Justice Harlan's 1896 colorblind statement as support for the proposition that the Equal Protection Clause outlaws any and all contemporary governmental considerations and uses of race fail to mention that, in his Plessy dissent, a race-conscious Harlan made clear his view:

[T]he 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.

 And in another passage the Justice wrote: “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.” That is not the view or expression of someone who is blind to race (in fact, Harlan had owned slaves and opposed the Emancipation Proclamation, the Thirteenth Amendment, and the Freedman's Bureau). It is, instead, the sentiment of someone who “seems to be embracing the notion that people inevitably do think and act in race-conscious ways, and that, when contained within the private sphere in which the rights of others are not affected, race-conscious expression and action is not a bad thing.”

It must also be noted that Justice Harlan, viewing the railway car segregation as the denial of a civil right, did not recognize or endorse the social equality of African-Americans. In his words:

[S]ocial equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.

“In other words,” Jack Balkin argues, under Harlan's approach “it doesn't matter how much you integrate the institutions of American political and civil society. Blacks and whites are not social equals and they are not going to be.”

Justice Harlan's race-consciousness is also evidenced by his reference to “a race so different from our own that we do not permit those belonging to it to become citizens of the United States. . . . I allude to the Chinese race.” Exhibiting no colorblindness with regard to that “race,” Harlan buttressed his argument against the Louisiana law by pointing out that “a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race [cannot].”

Many contemporary references to Justice Harlan's colorblind axiom also fail to take into account his opinion for a unanimous Court in Cumming v. Richmond County Board of Education. Decided just three years after Plessy, Cumming held that a county school board's termination of funding for an all-black high school, while continuing funding for an all-white high school, did not violate the Equal Protection Clause. Noting that the question of the constitutionality of school segregation was not before the Court, Harlan saw no evidence that the school board had acted “with any desire or purpose . . . to discriminate against any of the colored school children of the county on account of their race.” In his view, the school board, faced with the choice of operating a high school for sixty black children or closing that school and using the same facility to provide a primary school for three hundred black children, did not abuse its discretion when it acted “in the interest of the greater number of colored children” and closed the black high school. Thus, as Michael Klarman has observed, Harlan considered the “separate-and-unequal scheme” of operating a white but not a black high school to be reasonable and therefore constitutional. Harlan's opinion for the Cumming Court, and the fact that he joined a unanimous Court in Pace v. Alabama's rejection of a constitutional challenge to an enhanced criminal penalty for certain sexual conduct engaged in by different-race couples, reveal that his “jurisprudence on race exhibited no overarching preoccupation with colorblindness.”

C. The Plessification of the Equal Protection Clause

Plessy's validation of Louisiana's blatant but (in light of the Court's decision) constitutional discrimination against African-Americans is not, and should not, be surprising given the pre-1900 legal and social contexts and then-extant racial/racist norms and understandings. At that time, racial segregation, a manifestation and implementation of white supremacy, was viewed by the state and by the Supreme Court as reasonable and consistent with the Fourteenth Amendment's equal protection mandate. Blacks and whites “would not be forced into a situation of social equality before they were ready,” and the fact that Louisiana's law was “part of a system designed to keep blacks in their place was simply ignored.” Black persons traveling in the same railway cars with whites, like black and white children attending the same schools, were contrary to then-settled segregative expectations and white-supremacist-reflective customs and traditions. If African-Americans believed that separating the races and criminalizing integration stamped them with a “badge of inferiority,” they fallaciously saw that which did not exist, the Court concluded, for the mere “legal distinction” implied by the separate-but-equal statute “has no tendency to destroy the legal equality of the two races.” On this account, Homer Plessy's lived and racialized experiences and the subordinating realities and social meanings of Louisiana's racial apartheid system did not matter. All that mattered to the Court was that institution's understanding and construction of an Equal Protection Clause grounded in and flowing from the Justices' worldviews, sensibilities, and belief that social equality could not be achieved by and through law.

The Plessy Court's racial formalism and treatment of “race-as-merely-color stripped the social meaning of group debasement from segregation laws.” Segregation mandated by law was simply a fact of social life, was a “reasonable regulation” reflecting and reinforcing tradition and custom, and was a “neutral” means of promoting “the people's” comfort and preserving the public peace. Louisiana's statute, as interpreted and applied by the Court, “said nothing about the status of [b]lacks” and was not “inherently connected to . . . a legal and social system that perpetuated the stigma of inferiority based on race.”

Under the Court-approved Plessy regime, blacks and whites were “equally protected” by a law that intentionally racialized and separated members of one group from the other and made criminals of those who dared to act contrary to the state's color coding of racial groups. That construction of the Equal Protection Clause is the result of the Court's deference to and endorsement of the state's disingenuous argument that blacks were treated the same as whites--just as Homer Plessy could not ride in a railroad car reserved for whites, a white person could not ride in a car reserved for blacks. Having chosen a tradition-protective over a tradition-corrective reading of the Equal Protection Clause, the Court's finding of legal and constitutional equality was divorced from and ignored the historical background and sociopolitical meaning of classifying, subordinating, and stigmatizing racial segregation. In the words of one scholar, the Court's “radical formalism of constitutional interpretation in the face of contrary social facts . . . produce[d] a legal absurdity.”