Where Justice Harlan voiced his belief that the Chinese could never assimilate, Frederick Douglass confidently asserted they could.
Plessy v. Ferguson certainly ranks as one of the Supreme Court’s most injudicious rulings. While historically aware Americans probably could identify the 1896 case as upholding the concept of “separate but equal” in public accommodations, few of this number likely know much about its origins or principal actors. Despite nearly a decade teaching U.S. history survey courses and assigning the majority opinion of Justice Henry Brown and blistering dissent of Justice John Marshall Harlan, I knew practically nothing about these men’s biographies before reading Steve Luxenberg’s new book.
Luxenberg, a writer and former Washington Post editor, uses the lives of these two men, along with lawyer Albion Tourgée, as well as a collective portrait of free blacks in New Orleans, to take readers through this important period in the American past. Separate: The Story of Plessy v. Ferguson and America’s Journey from Slavery to Segregation is narrative history at its best, at times a page-turner that illuminates the triumphs, tragedies, and flaws of a highly engaging cast of characters whose actions threw a long shadow over the 20th century.
Three Prominent Lawyers
Justice Harlan of Kentucky (1833-1911) emerges as a noble figure for his ability to grow morally and rise above his proslavery roots. Harlan’s shifting political affiliations underscore the political unrest that was shaking the foundation of the entire Union. Raised in a Whig family, Harlan affiliated with the Know Nothings in 1854 as a 21-year-old lawyer, campaigned for Constitutional Unionist presidential candidate John Bell in 1860, supported the presidential candidacy of Democrat George McClellan in 1864 because of McClellan’s hostility to emancipation, and finally was driven into the Republican Party by 1868 because he rejected the policies of unreconstructed Kentucky Democrats.
Notably unsuccessful at picking political winners, Harlan cast his lot based on principle rather than expediency or popular opinion, a conviction that led to his raising a Union regiment during the war. Yet as Kentucky’s attorney general he opposed the Thirteenth Amendment for infringing on states’ rights, revealing that his views on race and federal power evolved slowly. His devotion to the rule of law in the face of the Ku Klux Klan’s attacks on freedmen convinced him that federal intervention was necessary to secure equality before the law, but he was far from being a Radical Republican. In fact, when running for Governor in 1871, he argued for segregated schools and admitted his belief that blacks were socially inferior to whites.
But further developments in the 1870s, such as his support for the Civil Rights Act of 1875 and the life-altering experience of sharing a meal with the illustrious Frederick Douglass, forced him to reassess his ideas concerning race. In 1877, Rutherford B. Hayes sought a Southern Republican to fill a vacancy on the Supreme Court and wisely nominated Harlan.
After graduating from Yale University and beginning law school (which he never completed), New Englander Henry Billings Brown (1836-1913) settled in Michigan in search of practical experience. He passed the bar, made connections with the state’s influential lawyers and politicians, and married a wealthy heiress. Drawn to the Republican Party, Brown held to a unionism that only ran so deep. After being drafted in 1863, he paid a substitute $850 to avoid serving. Brown practiced law and expectantly awaited a political appointment, enjoying a brief four-month stint as Wayne County circuit judge, failing to win his party’s congressional nomination in 1868, but eventually gaining a judgeship on the federal district court. In 1890, after 15 years on the federal bench, Judge Brown’s ambition was finally rewarded when President Benjamin Harrison appointed him to the highest court in the land.
Ohioan Albion Tourgée (1838-1905) might have lacked the family connections and financial advantages of Harlan and Brown, but these deficiencies did not diminish his aspirations. Struggling to put himself through the University of Rochester, he succumbed to war fever and enlisted, only to be severely injured at First Bull Run. After a seemingly miraculous recovery from what appeared to be permanent lameness, he raised a regiment and became an abolitionist after witnessing slavery firsthand in Kentucky.
Relocating to North Carolina after the war (in part to aid his fragile health), Tourgée failed at business but gained notoriety as a vocal supporter of Radical Reconstruction. Though derided as a carpetbagger, he helped rewrite the state’s constitution, secured a judgeship, and ultimately saw his efforts to aid freedmen and reshape the South fall short in the face of widespread violence and Democratic resurgence.
In 1879, Tourgée anonymously published A Fool’s Errand, a best-selling novel loosely based on his own experiences, which depicted his disappointment with Radical Reconstruction. He believed that well-meaning politicians in Washington had never truly understood the mindset of former slaveholders or seen the deplorable condition of many freedmen, so their legislation failed to address bedrock issues. In his estimation, at least one whole generation needed to pass away before the vestiges of slavery could finally be erased, and in the 1880s and 1890s he used his widely read newspaper column to draw attention to the nation’s social and political failures in addressing the problems of education, race, and the color line.
Free People of Color
In cosmopolitan New Orleans, the social status of les gens de couleur libres, the free people of color, had slowly eroded during the antebellum era. While many of these educated residents owned property and lived well, they could not vote and were subject to discriminatory black codes in public places. In 1868, proponents of integration were unable to secure provisions in Louisiana’s new state constitution that prohibited separate conveyances or discrimination in all public facilities. As state courts throughout the South ignored the federal civil rights legislation of the Reconstruction era and upheld Jim Crow laws, concerned citizens grew determined to test the constitutionality of these measures in the U.S. Supreme Court. In 1892, the Citizens’ Committee of New Orleans recruited light-skinned Homer Plessy to purchase an intrastate train ticket. Plessy sat in the car reserved for whites only and allowed himself to be arrested as planned when the conductor questioned his race.
All parties involved knew that successfully overturning Jim Crow laws was a long shot. In 1883’s Civil Rights Cases, eight Supreme Court justices had revealed their narrow interpretation of the Fourteenth Amendment by claiming that its provisions only protected the rights of citizens from infringement by government, not by individuals or corporations. Only Harlan had dissented in that 1883 decision, crafting a vigorous rebuttal that invoked the Thirteenth Amendment’s destruction of slavery as a potent weapon against public racial segregation, which, as he wrote, amounted to little more than “a badge of servitude.”
Tourgée, as one of the lawyers secured by the Citizens’ Committee, hoped that the Plessy case not only would render a broader interpretation of these important Reconstruction amendments but further highlight the nebulous category of race itself by demonstrating that no train conductor collecting tickets could deduce “a scientific and legal question of great difficulty” in mere seconds. Despite a majority of the justices’ being appointed by Republican presidents, the verdict in 1896 proved no different from that handed down 13 years earlier.
Justice Brown likely had no idea that Plessy’s arrest had been arranged to test the law, and in his majority opinion, he refused to see the Thirteenth Amendment’s applicability. Moreover, he insisted that the Fourteenth Amendment could not “enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” Brown inexplicably cited two prewar precedents whose relevance was extremely dubious in the wake of the Fourteenth Amendment’s enactment. He also failed to distinguish between earlier cases challenging a corporation’s discriminatory policies, such as a private suit upholding a steamboat company’s denial of an indoor berth to a black man, and the current objection to Louisiana’s Separate Car Act, a state’s legal codification of segregation that, according to the prosecution, clearly violated the Privileges and Immunities Clause of the Fourteenth Amendment.
Harlan’s lone voice again cried out against injustice as he forcefully affirmed that “our Constitution is color-blind.” Frustrated and discouraged by a majority ruling that upheld the “thin disguise of ‘equal’ accommodations,” he deplored “the wrong this day done” to both black citizens and the Constitution itself. Furthermore, he implied that the verdict essentially kept alive Civil War controversies and presciently asserted that racial conflict would continue to impede national unity.
Worthy Laws Can Be Hobbled
Separate tells an engrossing tale that delves to the heart of America’s original sins: slavery and racial prejudice. By highlighting the intersection of race relations and the law during the last 60 years of the 19th century, Luxenberg’s comprehensive account reveals both commendable and shameful facets of our history, the nation’s inspiring ideals and its failure too often to live up to them. We learn here that, half a century before Homer Plessy, when railroads in Massachusetts introduced segregated cars and forcibly removed free blacks (and even the former slave Frederick Douglass), abolitionists and tens of thousands of other concerned citizens pressured the Massachusetts legislature to intervene. Conservative state legislators like Charles Francis Adams, scion of two Presidents, felt uncomfortable about such state regulation of business and hesitated to act. In 1843, the managers of the lines, however, voluntarily integrated the cars without state compulsion.
From this seemingly small victory to the major legal setback of Plessy, the book ultimately traces America’s struggle to enact and apply laws equally without making invidious racial distinctions. Marked by skillful prose and fine research, Luxenberg’s riveting portrayal of this essential case in U.S. legal history reminds us of the importance of having a government that passes and enforces just laws to promote the common good.
Of course, worthy laws, as the Reconstruction Amendments proved, can be rendered ineffective without a majority of principled interpreters on the bench. So while it never hurts to have a handful of John Marshall Harlans to sit in the halls of power and pursue legal justice and equity, it is indispensable to cultivate citizens like Homer Plessy, whose steadfast belief in liberty and equality compels them to take personal risks to confront injustice. Separate might describe a distant past, but its history and the prejudices it reveals are still painfully relevant today.