Document 5.1.2: Excerpt from “Brief for Homer Plessy,” by Attorney Albion Tourgée, October term, 1895

Tourgée was a white writer and lawyer from the North who led Plessy’s suit all the way to the Supreme Court.  This is part of his argument before the Court. 

The evident effect of these provisions  (in the Fourteenth Amendment) taken alone and construed according to the plain and universal meaning of the terms employed, is to confer upon every person born or naturalized in the United states two things:

1) National Citizenship.

2) State citizenship, as an essential incident of national citizenship.

This grant of both a national and state citizenship in the constitution of the United States is a guarantee not only of equality of right but of all natural rights and the free enjoyment of all public privileges attaching to either state or national citizenship. Its effect is (1) to make national citizenship expressly paramount and universal; (2) to make state citizenship expressly subordinate and incidental to national citizenship

Source: Reprinted in Olsen, Otto H. The Thin Disguise: Turning Point in Negro History. Plessy v. Ferguson, a documentary presentation (1864-1896). New York: Humanities Press, 1967, pp. 103–108.

Excerpts from U.S. Supreme Court majority opinion in Plessy v. Ferguson, May 18, 1896

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 more than once been the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature . . . it would thereby relegate the white race to an inferior position. We imagine that the white race at least would not necessarily 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....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. . . .

The judgment of the court below is affirmed.

Document 5.1.3

Excerpts from Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson, May 18, 1896 Justice Harlan was the lone dissenter in this case – an 8 to 1 decision. 

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 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 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 his color when his civil rights as guaranteed 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... 

The arbitrary separation of citizens, on the basis of race, while they are on a public highway [railroad], is a badge of servitude wholly inconsistent with the civil freedom and equality before the law established by the Constitution. It cannot be justified upon any legal ground.

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 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. . . .

For the reasons stated I am constrained to withhold my assent for the opinion and judgment of the majority.

Document 5.1.4

“A Strange Decision,” Democrat and Chronicle (Rochester, New York), May 20, 1896

The supreme court of the United States has decided that the law of Louisiana requiring the railroads of that state to provide separate cars for white and colored passengers is constitutional.  The majority of the court seems to have reasoned by analogy, assuming that if the laws of congress requiring separate schools for the two races is constitutional, therefore the laws requiring separate cars likewise comes under the protection of the fundamental national law.

Justice Harlan’s vigorous dissent denouncing these laws as mischievous comes very much nearer the sentiment of the American people upon that question than the decision of the majority does.  Justice Harlan says with entire truth that it would be just as reasonable for the states to pass laws requiring separate cars for Protestants and Catholics or for descendants of those of the Teutonic race and those of the Latin race.

The announcement of this decision will be received by thoughtful and fair-minded people with disapproval and regret.  It is not in harmony with the principles of this republic or with the spirit of out time.  It is a concession to one of the lowest and meanest prejudices to which the human mind is liable, the prejudice which draws a line between citizens and discriminates against people of a specified race and color.  It puts the official stamp of the highest court in the country upon the miserable doctrine that several millions of American citizens are of an inferior race and unfit to mingle with citizens of other races.

The certain consequences of this decision will be to encourage Southern legislatures in passing other laws detrimental to the interests of the colored people of those states.  Florida has a law which makes the teaching of white and colored children together in schools a crime.  Under that law recently several Northern gentlemen and ladies constituting the faculty of an admirable Congregational school at Orange Park, an institution supported by the National Congregational Association, were arrested and held for trial.  If there is any ground for the supreme court decision in the railroad case there seems to be no doubt that these black laws of the Southern states regarding schools would also be sustained by that tribunal.  In that case the large educational interests of the religious denominations, chiefly supported by Northern contributions and unselfish services, would be seriously affected.

This question came before the Methodist General Conference on May 9^th and strong resolutions condemning the Florida law were unanimously adopted without reference to a committee.  In Georgia a short time ago an attempt was made to enact a similar law, but fortunately the public sentiment of that state appeared to be too enlightened to support the movement and the bill failed.

Source: Reprinted in Brook, Thomas, ed.  Plessy V. Ferguson: A Brief History with Documents.  Boston, MA: Bedford Books, 1997.

Document 5.1.5

“Who is Permanently Hurt?” by Booker T. Washington, Boston Our Day, June 1896

Booker T. Washington (1856–1915) is best known for his belief in a practical, work-based education for African Americans in the decades following the end of Reconstruction.  Appointed the first  principal of Tuskegee Institute in 1881, he guided the growth of the school so that by 1890, it trained five hundred African American boys and girls each year.  Washington believed that if African Americans could improve their economic status, civil rights would follow.  In time, his accommodating approach toward white people increasingly separated him from leaders such as W. E. B. Du Bois.

 The United States Supreme Court has recently handed down a decision declaring the separate coach law, or “Jim Crow” car law constitutional.  What does this mean? Simply that the separation of colored and white passengers as now practiced in certain Southern states is lawful and constitutional. 

 This separation may be good law, but it is not good common sense. The difference in the color of the skin is a matter for which nature is responsible. If the Supreme Court can say that it is lawful to compel all persons with black skins to ride in one car, and all with white skins to ride in another, why may it not say that it is lawful to put all yellow people in one car and all white people, whose skin is sun burnt, in another car. Nature has given both their color; or why cannot the courts go further and decide that all men with bald heads must ride in one car and all with red hair still in another. Nature is responsible for all these conditions.

But the colored people do not complain so much of the separation, as of the fact that the accommodations, with almost no exceptions, are not equal, still the same price is charged the colored passengers as is charged the white people.

Now the point of all this article is not to make a complaint against the white man or the “Jim Crow Car” law, but it is simply to say that such an unjust law injures the white man and inconveniences the negro.  No race can wrong another race simply because it has the power to do so, without being permanently injured in morals, and its ideas of justice. 

The negro can endure the temporary inconvenience, but the injury to the white man is permanent. It is the one who inflicts the wrong that is hurt, rather than the one on whom the wrong is inflicted. It is for the white man to save himself from the degradation that I plead. 

If a white man steals a negro’s ballot, it is the white man who is permanently injured.

Physical death comes to the negro lynched—death of the morals—death of the soul— comes to the white man who perpetrates the lynching.

Source: Reprinted in Thomas, Brook, ed. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford Books. 1997.

Document 5.1.6

Excerpts from “The Courts and the Negro,” a speech by Charles Chesnutt, 1911

Charles Chesnutt (1858–1932) was the best known African American fiction writing or his time.  Born in Cleveland, Ohio, to parents who were free blacks before the Civil War, he lived in North Carolina and witnessed first hand Reconstruction and its end.  He returned to Cleveland in 1884, studied law, passed the bar exam, and began working as a legal stenographer.  He had already begun writing, and in time had three novels published, many short stories, and a biography of Frederick Douglass.  Chesnutt gave this speech after he abandoned his literary career.  In the speech, he draws on his legal background to give a concise history of how Supreme Court rulings have affected African Americans.

[T]o my mind the most important and far reaching decision of the Supreme Court upon the question of civil rights is that in the case of Plessy vs. Ferguson, a case which came up from Louisiana in 1895. (163 U.S., 537.)  The opinion is a clear and a definite approval of the recognition by State laws, of color distinctions, something which had theretofore been avoided in civil rights cases.  It establishes racial caste in the United States as firmly as though it were established by act of Congress.  To the opinion Mr. Justice Harlan dissented with his usual vigor, and Justice Brewer did not hear the argument or participate in the decision.  The Court cited the passage quoted by me from a former decision:

The Fourteenth Amendment was ordained to secure equal rights to all persons, and 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, and made the rights of the two races exactly the same.

And then the Court stabbed in the back, and to death, this ideal presentment of rights, and threw its bleeding corpse to the Negro,—the comprehensive Negro, black, brown, yellow, and white—the plaintiff in that case, which involved the separate car law in Louisiana, was seven-eighths white and showed no sign of darker blood—as that court’s definition of his civil status:…

When it was suggested in the argument that to sustain such discrimination laws might justify separate cars for people with red hair or aliens, or require people to walk on different sides of the street, or require colored men’s houses to be in separate blocks, the Court in the opinion, said that such regulations must be reasonable.  And the Court held:

In determining the question of reasonableness, it is at liberty to act with reference to the usages, customs, and traditions of the people, with a view to the promotion of their comfort and the preservation of the public peace and good order.

It is obvious where this leaves the Negro, and it is difficult to see where the Fourteenth Amendment has any application.

The opinion in Plessy vs. Ferguson is, in my mind, as epoch-making as the Dred Scott decision.  Unfortunately, it applies to a class of rights which do not make the heart and conscience of the nation the same direct appeal as was made by slavery, and has not been nor is it likely to produce any such revulsion of feeling.

Another extract from the opinion makes one wonder whether the Court was merely playing with the subject:

We consider the underlying failure of the plaintiff’s argument to consist in the assumption that the enforced separation of the races stamps the colored race with the badge of inferiority.  If this be so, it is not by reason of anything found in the act itself, but solely because the colored race chooses to put that construction upon it.

I presume that hanging might be pleasant if a man could only convince himself that it would not be painful, nor disgraceful, nor terminate his earthly career.  It is perhaps true that some Negroes—I suspect very few people of mixed blood—have seemed to accept this reasoning.  But I have never been able to see how a self-respecting colored man can approve of any discriminating legislation.

To do so is to condone his own degradation, and accept an inferior citizenship.  If discrimination must of necessity be submitted to, it should meet no better reception than silence.  Protest were better still.

I need not suggest the far-reaching effect of this decision.  The colored people of the South have been, it would seem, as completely segregated as the business of daily life will permit.  Perhaps the lowest depths of race hatred have not been sounded, but a more humiliating, insulting, and degrading system is hardly conceivable under even a nominally free government.  Under Plessy v. Ferguson there is no reason why any northern State may not reproduce in its own borders the conditions in Alabama and Georgia.  And it may be that the Negro and his friends will have to exert themselves to save his rights at the North….

Source: Original copies of the speech are at The Charles W. Chesnutt collection at the Fisk University library.  Published in Thomas, Brook. ed. Plessy v. Ferguson: A Brief History with Documents. Boston: Bedford Books, 1997.

Document 5.1.7