Plessy v. Ferguson: Background
- In Plessy v. Ferguson (1896), the Court held that “separate but equal” was a permissible standard under the Equal Protection Clause. Consider Plessy in light of the Civil Rights Cases (1883) (that Plessy discusses). Can you distinguish the earlier case? That, of course, was exactly the problem for Plessy’s lawyer. If you were the lawyer for Plessy, how could you distinguish the Civil Rights Cases and try instead to use it to your advantage? Recall the Court’s discussion of the purposes of the Equal Protection Clause in the Slaughter-House Cases (1873). How might you try to use it for Plessy?
- What is the standard of review the Court uses in Plessy?
Albion Tourgee was the lawyer for Plessy. A brief biography by Michael Curtis follows. It is adapted from the America National Biography, copyright 1999 by the American Council of Learned Societies. Used by permission of Oxford University Press, Inc.
Albion Winegar Tourgee (May 2, 1838–May 21, 1905) is best known as the lawyer who challenged state-imposed racial segregation of railroads in the Supreme Court and lost. He was a Northerner who emigrated to the South immediately after the Civil War, becoming a Republican activist, a framer of the North Carolina Constitution of 1868, a Superior Court judge, an enemy of the Ku Klux Klan, and a supporter of equality for newly freed slaves. In 1879 he published a best selling novel on Reconstruction, left North Carolina, and, in the years that followed, published many less successful novels and much political commentary.
In 1865, partly on the advice of a doctor that he seek a warmer climate for his health, he and his wife moved from Ohio to Greensboro, North Carolina. Tourgee was by this time a thoroughly radical Republican.
Tourgee’s commitment to racial equality, broader democracy, and protection of the economic underdog — white and black — collided with the values of most of the Southern elite. As Jonathan Worth, a former North Carolina Governor, wrote, “We who were born here will never get along with the free negroes, especially while the fools and demagogues of the North insist they must be our equals.” In 1866, Tourgee attended the Convention of the Southern Loyalists where he supported an unsuccessful radical resolution in favor of suffrage for African Americans. From 1866 to 1867, he edited a Republican newspaper in Greensboro.
In 1868, Tourgee was elected to represent Guilford County at the state Constitutional Convention. His platform included equal political and civil rights for all citizens, ending property qualifications for jury duty and office holding, popular election of all state officers (including judges), free public education, abolition of whipping post, stocks, and branding for those convicted of crimes, judicial reform, and uniform taxation. In good part because of his leadership, these reforms as well as a homestead exemption, protecting a modest amount of real and personal property from creditors, were written into the North Carolina Constitution. A scholar who was critical of Tourgee’s advocacy of racial equality still praised his contribution to North Carolina: “Few men have lived in the State who have conferred on it such lasting good . . . ,” the bemused scholar wrote in 1906, “and yet he was a partisan leader of a motley horde. . . .” After the Constitutional Convention Tourgee was one of three Code Commissioners who prepared a new Code of Civil Procedure for the state, making the legal system less technical and more likely to produce substantial justice.
Tourgee was elected Superior Court judge and served from 1868 to 1874. During his tenure as a judge Tourgee continued to attend Republican party functions. Although Tourgee was viciously attacked at the time in the press and criticized for partisanship by an earlier generation of scholars, his modern biographer concludes that he was a fair and impartial judge. Lawyers who were his political opponents said he was the ablest judge before whom they had practiced. He roused the ire of Conservatives by insisting that blacks be included on jury lists and that the jail be heated in winter, a concern for inmates that Conservative critics believed would encourage crime.
During Tourgee’s tenure as Judge, the Ku Klux Klan engaged in a systematic campaign of terror and political assassination designed to drive blacks and their Republican allies from power. The Klan was particularly active in Judge Tourgee’s piedmont North Carolina judicial district. Tourgee faced threats to his personal safety with extraordinary courage. The terror had an effect, however, and eventually self-styled Conservatives regained power in the state.
State efforts to prosecute Klansmen had been unsuccessful because of Klan disguise, secrecy, widespread public support, and the Klan practices of furnishing alibis for their fellows and intimidating witnesses. Still an 1871 investigation by Tourgee led to indictments of sixty-three members, including many from leading families, for Klan atrocities. Indeed Tourgee believed the Klan was controlled by the wealthy and powerful.
Conservatives, by then in power, responded with legal maneuvers to prevent prosecutions, including amnesty laws that on their face sheltered both the Klan and secret Republican organizations. As Tourgee sardonically noted, “in the excess of their zeal, and lest it should be supposed they desired to screen only their friends, they extended the mantle of forgiveness so as to cover apparently the innocent as well as the guilty. . . . In short, they pardoned not only the perpetrators of these outrages, but, in a reckless determination to forgive, they even pardoned the victims!”
As Republican political dominance faded, so did Tourgee’s hope for re-election as a judge. His law practice did not prosper. A handle manufacturing company he founded had failed during a financial panic, and Tourgee often found himself in difficult financial circumstances.
He was elected to the state Constitutional Convention of 1875 where he fought a partially successful rear guard action to protect the values enshrined in the Constitution of 1868. He ran unsuccessfully as Republican candidate for Congress in 1878.
In 1878, just a few years after the Illinois Supreme Court refused to admit women to the practice of law and the U.S. Supreme Court found nothing in the Constitution to prevent the exclusion, Tourgee argued successfully before the North Carolina Supreme Court for the admission of Tabitha Anne Holton, the first woman ever licensed to practice law in the state.
In 1879, Tourgee wrote a novel based on his Reconstruction experiences, A Fool’s Errand, and published several highly regarded legal treatises on North Carolina law. He left North Carolina, eventually moving to Chautauqua County, New York. A Fool’s Errand was a huge success, selling over 200,000 copies and attracting laudatory reviews.
Tourgee served without pay as counsel in Plessy v. Ferguson (1896), an unsuccessful challenge to Louisiana’s law requiring segregated railroad cars. “Justice,” he wrote in his brief, “is pictured as blind and her daughter the Law, ought at least to be color-blind,” and he insisted that the requirement for “separate but equal” railroad cars established a constitutionally impermissible caste system. Tourgee apparently inspired Justice John Marshall Harlan’s famous dissenting dictum “There is no caste here. Our Constitution is color blind. . . .”
Tourgee believed caste (“the legal subjection of one class to the domination and control of another”) had triumphed “under the protection of a supreme court, which has always been the consistent enemy of personal liberty and equal right. . . .” But, he said, caste was inconsistent with basic American values and would fall eventually, just as slavery had fallen.
Tourgee thought deeply about the failure of Reconstruction. As Tourgee saw it, Reconstruction was a continuation of the struggle against slavery. The techniques developed in the time of slavery to silence opponents of the institution were reincarnated in an effort to silence those who supported civil and political rights for blacks. The elimination of Republicans and blacks as a political force paralleled the similar fate of opponents of slavery in the South before the Civil War.
History’s view of Tourgee has altered with changes in attitude toward equal rights for African-Americans. Historians writing in the 1960s through the 1990s have been far more positive about Tourgee than those who viewed him through a lens of hostility to the goals of Reconstruction. Tourgee would not be surprised. “The life of the Fool,” he wrote in the introduction to his Fool’s Errand, “is full of the poetry of faith. . . . He differs from his fellow-mortals chiefly in this, that he sees or believes what they do not, and consequently undertakes what they never attempt. If he succeed in his endeavor, the world stops laughing, and calls him a Genius: if he fail, it laughs the more, and derides his undertaking as A Fool’s Errand. So the same individual is often both a fool and genius . . . a fool to one century and a genius to the next. . . .”
Plessy v. Ferguson
163 U.S. 537 (1896)
[Majority: Brown, Fuller (C.J.), Gray, Shiras, White, and Peckham. Dissenting: Harlan.]
Mr. Justice Brown . . . delivered the opinion of the Court.
This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts “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: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.”
By the second section it was enacted “that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison. . . .”
The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.
The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts both with the 13th Amendment of the constitution, abolishing slavery, and the 14th Amendment, which prohibits certain restrictive legislation on the part of the states.
- That it does not conflict with the 13th Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude — a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases (1873) to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word “servitude” was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the 14th Amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases (1883), it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. “It would be running the slavery question into the ground,” said Mr. Justice Bradley, “to make it apply to every act of discrimination which a person may see fit to make as to the 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 theater, or deal with in other matters of intercourse or business.”
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, or re-establish a state of involuntary servitude. . . .
- By the 14th Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.
The object of the 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 upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have 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.
One of the earliest of these cases is that of Roberts v. City of Boston (Ma. 1849), in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. “The great principle,” said Chief Justice Shaw,
advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. . . . But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.
It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia, as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. [Citing cases from Ohio, Missouri, Louisiana, California, New York, Indiana, and Kentucky.]
Laws 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. State v. Gibson (In. 1871).
The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. . . .
Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. DeCuir (1877). The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states. . . .
While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the 14th Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state’s attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.
It is claimed by the plaintiff in error that, in any 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. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called “property.” Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins (1886), it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power.
So far, then, as a conflict with the 14th Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at 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. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the 14th Amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes 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. We cannot accept this proposition. 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. As was said by the court of appeals of New York in New York v. Gallagher (N.Y. 1883):
This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.
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. 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.
It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that 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. But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The judgment of the court below is therefore affirmed.
Mr. Justice Brewer did not hear the argument or participate in the decision of this case.
Mr. Justice Harlan dissenting . . .
[T]he state regulates the use of a public highway by citizens of the United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants’ Bank (1848), said that a common carrier was in the exercise “of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.” . . .
In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. 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. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.
The 13th Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the 14th Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” and that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the 15th Amendment that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.” . . .
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows 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. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. “Personal liberty,” it has been well said, “consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 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.
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, “the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.” Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. . . .
The 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. But in 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 guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case (1857). . . .
The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling 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.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, 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. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.
The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done. . . .
I am of opinion that the state 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. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the”People of the United States,” for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.
For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.