Racism and the Law: The Legacy and Lessons of Plessy

112 Pages·1997·2.61 MB·English

by  Gerald J. Postema (auth.), Gerald J. Postema (eds.)

RACISM AND THELAW:
THELEGACY AND LESSONS OF PLESSY
RACISM AND THE LAW:
THE LEGACY
AND LESSONS OF PLESSY
Editedby
GERALDJ. POSTEMA
PhilosophyDepartment, University ofNorth Carolina,
ChapelHill,North Carolina, U.S.A.
ReprintedjromLaw andPhilosophy16(3),1997
Springer-Science+Business Media, B.~
AC.I.P.Cataloguerecordfor thisbookisavailablefrom theLibraryofCongress.
ISBN978-90-481-4883-7 ISBN 978-94-015-8977-2(eBook)
DOI 10.1007/978-94-015-8977-2
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OriginallypublishedbyKluwerAcademic Publishers in 1997.
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CONTENTS
GERALDJ.POSTEMA / Introduction:The SinsofSegregation 1-24
MARKTUSHNET/ Plessyv.FergusoninLibertarianPerspective 25-38
JAMESW.NICKEL / The Liberty Dimension of Historic and
ContemporarySegregation 39-57
FREDERICKSCHAUER/ GeneralityandEquality 59-77
BERNARD R.BOXILL/ Washington, Du Bois and Plessy V.
Ferguson 79-110
GERALD J.POSTEMA
INTRODUCfION: THE SINS OF SEGREGATION
"The fathershaveeaten sour grapes andthechildren'steetharesetonedge."
Jeremiah 31:29
Just over one hundred years ago, the United States Supreme Court
upheld a Louisiana statute mandating segregated railway accom
modations.I TheLouisianastatute,and otherslike itpassedthrough
out the Southern United States in the 1880's and early 1890's, did
not create the structure of social, economic, and political segrega
tion of the races. Jim Crow had already been planted deep in the
institutions, practices, and laws of Nineteenth Century American
life.? Moreover, the "separate but equal" doctrine had emerged in
American transportation law through a series of state and federal
cases dating already from the 1860's.3 The legislation of the late
1880'ssecuredthis social and legal structure and threatened punish
mentforanyonewhochallengedit.Thus,inonerespect,inupholding
theLouisianastatute,Plessymerelymademanifestthenew form that
racism had taken in American life after the demise of slavery. Yet,
Plessymarksa significantpointin American history because itgave
new life to the cancer of racism in the U. S. Constitution and the
American public mind, undermining the efforts of the Reconstruc
tion Amendmentsto cut it out. With the separate but equal doctrine,
the systemofsocial,economicand politicalsegregation,subordinat
ing an entirerace to the will of anotherand denying membersofthat
race afull and equalplacein the civiclife ofthe nation, was publicly
I Plessy vFerguson, 163u.S.537(1896).
2 See C. VannWoodward, The Strange Career ofJim Crow (Oxford: Oxford
University Press, 1966),Charles A.Lofgren, ThePlessyCase:ALegalHistorical
Interpretation (New York: Oxford University Press, 1987), and the many use
ful references inJames Nickel's paper "The Liberty Dimension of Historic and
ContemporarySegregation"(thisissue).
3 Lofgren,ThePlessyCase, chapter 6.
G.J.Postema (ed.),Racismand theLaw: TheLegacyandLessonsofPlessy, 1-24.
© 1997KluwerAcademicPublishers.
2 GERALDJ.POSTEMA
reconciled with the demandfor "dueprocess" and "equal protection
of the laws" that had been written into American fundamental law.
Fifty years of efforts, too often half-hearted and ineffective, to
undo the immeasurable damage of fifty years of segregation, sanc
tioned and protected by the fundamental law ofthe land, have not
removedthebittertaste ofracismfrom Americanpubliclife. Indeed,
the legacy ofPlessy is rich with bitter irony. The decision is today
almost universally condemned as "among the most vilified of all
Supreme Court decisions.?" Yet,as Charles Lofgren amply demon
strates, when the decision was handed down it was "not especially
controversial"andlargely metwithindifferenceinthenation'spress;
for all its obscurity and tortured logic, Justice Brown's majority
opinion"embodiedconventional wisdom"and the case "remainjed]
invisible for a long time after 1896."5
Again, now itiswidely believedthatthedecisionsoughttorecon
cile segregationwiththe constitutionalguaranteeofequal protection
byrequiringseparatefacilitiestobeequal. Yet,asJusticeHarlansaid
bitterlyindissent,"Thethindisguiseof'equalaccommodations' will
not misleadanyone, noratone for the wrong this day done,"(Plessy,
562). More ironic, perhaps, is the fact that the majority opinion in
Plessy never explicitly mentions the separate but equal doctrine.?
and it is likely that the Court believed the issue ofthe quality ofthe
accommodations was not constitutionally relevant. It is also ironic
that Brown v. Board ofEducation.' which allegedly repudiated the
Plessy doctrine and is widely thought to have invited efforts over
the next fifty years to dismantle legislated racial segregation, never
explicitly overruled Plessyi
A finalirony, perhaps, isthe fact that now, acentury after Plessy,
American federal and state policies aimed at dismantling the struc
tures of subordination it sanctioned, are themselves being disman-
4 Cass R.Sunstein,The PartialConstitution (Cambridge,MA: Harvard Uni
versity Press), p.42.
5 Lofgren,ThePlessy Case,pp.5,196-7.
6 The term (actually, the words "equal but separate") does appear once in
Brown'sinitialsketchofthechallengedLouisianastatute, 163U.S.537,atp.540.
7 347U.S.483(1954).
8 Lofgren,ThePlessy Case,pp.204-5.However,Schauerargues that aseries
of cases after Brown so severely weakened Plessy that it lost standing as good
Constitutionallaw.See FrederickSchauer,"GeneralityandEquality"(this issue,
pp.280).
3
INTRODUCfION:THESINSOFSEGREGATION
tled systematically, and that the words ofJustice Harlan's powerful
dissent are used to justify this reversal. Those who find aid and
comfort for their attacks on affirmative action programs in Harlan's
famous phrase, "OurConstitutioniscolor-blind"(Plessy, 559),have
reduced toashallow sloganthecompellingmoralvision itwasmeant
to convey, a vision rooted in a powerful indictment of the sins of
segregation and the cynical devices used to cover the shame and
contradictionstheycause.Asaresult, critics have turned ablindeye
to its most importantlesson.
There are many lessons to be learned from Plessy. These lessons,
in the first instance at least, may appear unique toAmerican history
and constitutionalism. For, surely, the fact ofslavery, recognized at
the founding ofthe nation in its fundamental law, and the associa
tion ofemancipation ofAfrican-Americans with the bitterdefeat of
the SouthernStates ina bloody civil war,give a distinctive shape to
white-blackracism intheUnited States. Yet,racism institutionalized
and sanctionedby law and social practice isnotunique totheAmer
ican experience, and the fundamental moral and political principles
scorned andcruelly violated bysuch institutionsand practices figure
prominently in the political creeds of all democratic peoples. The
lessons, in their substance, then, surely have a broaderapplication.
In this Special Issue of Law & Philosophy, four philosophers
and constitutional scholars take a fresh look at the lessons and
legacy of Plessy. The essays to follow explore them largely from
the perspective of normative political philosophy. This is not the
only perspective from which to view the problem of racism and
racial segregation, but it is a useful and important one. A number
of different themes run through the essays, and each has a distinct
focus. Mark Tushnetexplores the relation between Plessyand other
late Nineteenth Century constitutional cases through the lens of
libertarian theory. James Nickel traces the devastating impact of
racial segregation on basic liberties of citizens. Frederick Schauer
argues that the concern at the heart ofthe moral and constitutional
requirement of equality cannot be reduced to a concern about the
abuse ofcategorialthinking inlegal andpoliticalreasoning.Bernard
Boxill explores the prospects and perils of various forms of resis
tance against racial segregation and discrimination. Uniting these
very different projects is a concern to identify the nature of the fun-
4 GERALDJ.POSTEMA
damental moral evil ofsegregationand the law'scomplicityin it. In
some essays this issue is addressed directly and explicitly, in others
it appears more indirectly and by inference. This concern lies at the
heart ofthe opinions inPlessy as well. In theremainderofthisintro
ductory essay I will highlight this recurring theme. Very different
kinds ofmoral evils are attributed to segregation in these writings.
This is not surprising, since an institution as complex, malign, and
pervasive as segregation is likely to affect society and its members
inawide variety ofways.The analyses offered, then, arenotincom
patible.Westudents ofPlessy'slessons do well tokeep each ofthem
in mind as we attempt to deal with its legacy. Yet, if we are to act
responsibly, weneed some sense oftherelativemoral importanceof
these evils.Tothis endI addsome reflections on thePlessyopinions
and the essays tofollow.
THEPLESSYOPINIONS
The Majority Opinion (Justice Brown). Justice Brown never con
sideredwhetherrailway accommodationsinLouisianawereofequal
quality. This would have been irresponsible, if he had understood
the constitutional validity of the Louisiana practice and of Homer
Plessy's criminal conviction to depend on the equal quality of the
separate accommodations - that is, if he had thought that separate
accommodations were constitutional only ifequal in quality. It is
fair toconcludethat therelative quality ofaccommodationswas not
directly relevant to Homer Plessy's challenge, in theview ofJustice
Brown. Rather, the central issue concerned whether the Louisiana
law mandatingseparate railway accommodationsviolatedtheFour
teenth Amendment's guarantee ofequal protection of the law, even
ifthey proved to be ofequal quality.That is, Brown took Plessy to
have put the more fundamental challenge to the segregation statute
that segregationas such isinconsistentwith constitutionallyguaran
teedequality.Brown answered thischallengebyrejectingitsimplicit
interpretation ofthe scope ofthe constitutionalguarantee.
It is possible to identify two main lines of reasoning by which
Brown rejected Plessy's challenge. First, he argued that segregation
did not involve constitutionally proscribed inequality, even if the
separation was defined and enforced by law. For legal distinctions
INTRODUCTION:THESINS OFSEGREGATION 5
alone do not entail inequalities, as long as the distinctions serve
reasonable goals and are enacted in good faith for the public good.
The plausibility of this argument rests, of course, on how "reason
ableness"istobeunderstood.Brown held thatitisdetermined"with
reference to established usages, customs, and traditions of the peo
ple"(Plessy,550).If"theenforced separationofthetworacesstamps
the colored race with a badge of inferiority" this is due to nothing
in the law, but "solely because the colored race chooses to put that
construction upon it"(Plessy, 551).
Brown's second line of reasoning sought to undermine the chal
lenger's argument that the Louisiana law is constitutionally invalid
because it legally sanctioned, supported, and coercively enforced a
system ofinequalitybetween theracesthatispervasive inthesociety.
Brown seemed willing to concede that such social equalityexisted,
and by implication to concede that the "badgeofinferiority" issued
from a deeper and more pervasive source than merely the construc
tion blacks were inclined to put on the law.But, Brown argued, this
social inequality innowaythreatenedtheequality guaranteedbythe
Constitution, since such matters do not (because they cannot) fall
within the scope ofthe Constitution'sprotection.The constitutional
guarantee of equality is "absolute" in its sphere, he contended, but
itssphere islimited topolitical and civil rights (Plessy, 544).Itdoes
not extend to social inequalities, because the law is "powerless to
eradicate racial instincts or to abolish distinctions" (Plessy, 552). It
wouldbeabsurd toattribute theaimoferadicatingsocial inequalities
to the Amendment, since that is an aim that is beyond the power of
any law to achieve. "Ifone race be inferiorto the other socially, the
Constitution of the United States cannot put them upon the same
plane" (Plessy, 552). Hence, social inequalities are consistent with
"absolute equality" under the Constitution because the guarantee
simply does not and cannotextend to that realm.
The Dissent (Justice Harlan). Like Brown, Harlan seemed to
assume thatthekey issueraised byPlessy wasnottheequality ofthe
accommodations, but the consistencyoflegally sanctioned segrega
tion with the fundamental aims of the Reconstruction Amendments
(Plessy, 557).Running through theopinionareconcerns aboutsocial
peace and security and about invasions ofpersonal liberties, but the
fundamental evil of segregation, in Harlan's view, lay in its radical
6 GERALDJ.POSTEMA
violation of equality. Legally sanctioned segregation, in his view,
perpetuated in new and subtler forms the system of racial domina
tion and subjection stemming from slavery.
Throughout his opinion, this social and historical context con
ditioned and shaped his interpretation of every issue. He assumed
thatracialsegregation,discrimination,andprejudice, andtheRecon
struction Amendments which sought to undermine them, can only
be understood against this background. The Amendments sought
to entrench "a positive immunity, or right [of black citizens] ...to
exemption from unfriendly legislation against them distinctively as
colored - exemption from legal discriminations, implying inferi
ority 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" (Plessy,
556).For"in theviewoftheConstitution,intheeyeofthelaw,there
isinthiscountrynosuperior,dominant,rulingclassofcitizens.There
is no caste here. Our Constitution is color-blind, and neither knows
nortolerates classes among citizens"(Plessy, 559).This resounding
affirmationofthenotionofacolor-blindconstitution,however,must
be understood in its context. This context includes a keen sense of
the law's complicity in the maintenance of racial domination, and
oftheextent to which superficial orformal equalities in the law can
maskdeeper illegitimate inequalities inwhich the law isimplicated.
Againsttheargument thattheLouisianastatutemerely "prescribesa
rule equally applicable to white and colored alike", Harlan replied,
"Everybody knows that the statute in question had its origin in the
purpose not so much to exclude white persons from railroad cars
occupiedbyblacks astoexclude colored people from coaches occu
piedbyorassigned towhitepersons."Itsaim was"tocompel [black
persons] tokeep tothemselves whiletravelling inrailroad passenger
coaches" (Plessy, 557).This is alaw which, regardless of itsformal
terms, "puts the brand of servitude and degradation upon a large
classofourfellowcitizens, ourequals before the law" (Plessy,562),
for it"proceedjs] 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" (Plessy, 560). Harlan concluded, "The
arbitrary separation ofcitizens onthebasis ofrace while they are on
a public highway is a badge of servitude wholly inconsistent with