Plessy v. Ferguson

A Today in Supreme Court History blog series provided fodder for someone to list daily cases* and eventually use it to publish a book. Mid-2024, I joined in with my personal comments. Sometimes, I go on a bit of a lecture. Constitutional law has long interested me. 

Today's post involved Plessy v. Ferguson oral argument. (The posts just state the anniversary and connect it to some lecture.) That is the infamous case where the justices in 1896 held 7-1 that legal segregation in railroad cars is constitutional. 

(The oral argument came less than a month before the opinion. They had many more cases back then.) 

Justice Souter, in his Harvard speech, argued:

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

Justice Harlan did see in his dissent. We now deem his dissent correct. If only we also deemed his Civil Rights Cases similarly so.**

OTOH, Harlan did have topical blindspots. He argued in his dissent:

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.

He also suggests why he joined the dissenting opinion in the famous birthright citizenship case:

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.

[He did not say that as policy, the Chinese were deemed so different. He stated it as a simple fact.]

Also, his understanding of equal "civil rights" did not include integration of public schools [he dissented when a law blocked a private college from integrating] or miscegation laws.

Harlan understood the general principles of the 13A, 14A, and republican form of governments required striking down the railroad regulation involved. He still had a ways to go.

On that, it took the development of society and the law, which is a significant aspect of enforcing the Constitution.

Harlan and the majority had some excuse for being products of their times. Given we as a nation are repeatedly unable to learn the lessons of history [some lame gotcha won't do it], we should remain modest.

Justice Souter can have the final word:

If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

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* This leaves me even more time to pontificate. 

Gibson v. Mississippi (1896) was a majority opinion written by Justice Harlan. A big "but" here:

We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take cognizance, and which have been so forcibly presented by his counsel, who are of his race, and, giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find, from the record before us, that his rights, secured by the supreme law of the land, were violated by the trial court or disregarded by the highest court of Mississippi.

Bolling v. Sharpe (D.C. segregated schools, so no Equal Protection Clause) used this case as a precedent for an  equal protection component of the Due Process Clause:

As long ago as 1896, this Court declared the principle "that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.

I love those sorts of footnotes. 

** The Supreme Court later upheld usage of the interstate commerce power (left open in the earlier case) to stop discrimination in public accommodations. 

To refute a comment, that is a telling label. It is not mere "private" discrimination. Harlan was correct. The opinion was cited in cases like U.S. v. Morrison, too, another case that could have gone the other way on various grounds. 

Congress in the 1870s enforced the 14th Amendment to regulate discrimination in public accommodations. Congress has more power to pass reasonable enforcement regulations regarding the Reconstruction Amendments. 

The Supreme Court, guided by the spirit of the 19th Century, continues to provide a too limited view of its power. They might have been correct in specific cases  (Ginsburg might very well have been right to go along in Boerne v. Flores), but overall too restrictive.