41. Separate but equal

Reconstruction ended state by former Confederate state. Southern Democrats increasingly accommodated themselves to the demands of congressional Republicans, who became increasingly weary of trying to shape the South into something those Democrats didn’t want it to be. Meanwhile Northern Democrats campaigned on the Republicans’ distraction from the affairs of the North, threatening the Republicans’ hold on Congress and the White House. When the Democrats in 1874 captured the House of Representatives for the first time since before the Civil War, and then won the popular vote in the 1876 presidential contest, the Republicans concluded they had to terminate Reconstruction once and for all. A political bargain—the Compromise of 1877—delivered a winning electoral vote for Republican Rutherford Hayes after some electors were disputed in the 1876 tally, and a commitment to the Democrats to withdraw the last few federal troops from Southern politics.

Upon implementation of the compromise, the governing groups in the Southern states looked much like they had before 1861: white, male, Democratic. Black people were no longer slaves. The Thirteenth Amendment stood. But sharecropping and selective law enforcement kept most blacks in an economic underclass. Black people were citizens. That part of the Fourteenth Amendment was unchallenged. But the equal protection part was often ignored. Black men had voted during Reconstruction and been elected to office, courtesy of the Fifteenth Amendment. But poll taxes, literacy tests and political violence gradually drove them away from the voting booth.

Slavery had been as much an institution of social control as of labor mobilization. Its end prompted white Southerners to seek another method of marking their superiority. After some experimentation, they settled on legally mandated racial segregation.

Sometimes the legal part was unnecessary. Blacks often had no more desire to mingle with whites than whites had to mingle with them.

Yet in certain areas of life, mingling was unavoidable. Whites and blacks walked the same streets. They shopped at the same stores. They rode on the same railroad trains.

The trains were a particular target of some of the first segregating laws. In rail cars, passengers were thrown into close physical proximity. Elsewhere, rail cars were segregated by economic class, with the rich riding in first class and other people in the cheaper classes. In the South, racial segregation was more important to the ruling groups than economic segregation, although the two kinds overlapped.

The Louisiana legislature in 1890 passed a law mandating different cars for the two races. In a nod to the equal protection clause of the Fourteenth Amendment, the Louisiana law ordered railroad companies operating in the state “to provide equal but separate accommodations for the white and colored races by providing separate coaches or compartments.”

The law took effect and was challenged by a New Orleans civil rights group that valued Louisiana’s history of racial toleration. They looked for a passenger who would test the law by breaking it. The person they found was Homer Plessy, described in the news accounts of the day as an “octoroon”—a person with seven white great-grandparents and one black. His skin was light enough that when he took a seat in the car reserved for whites, the conductor had to ask him if he was colored. He said he was. The conductor called the police and Plessy was arrested.

The case reached the Louisiana supreme court, which found Plessy in violation of the railcar law. Plessy appealed to the U.S. Supreme Court, which heard it as Plessy v. Ferguson.

In a 7 to 1 decision, the court ruled against Plessy. “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,” wrote Associate Justice Henry Brown for the majority. “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 Constitution required equal protection of the laws. It did not try to change men’s hearts. “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.”

Associate Justice John Marshall Harlan dissented vigorously. “In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens,” Harlan wrote. “There is no caste here. Our Constitution is colorblind 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 guaranteed by the supreme law of the land are involved.”

The Louisiana law contradicted this sacred principle, Harlan said. For the state to argue that the railcar law imputed no inferiority to black people was disingenuous. For the Supreme Court to accept this argument was dangerous. “Everyone 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,” Harlan said. “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.”

Harlan warned of the precedent the court set by its decision in the Plessy case. “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 streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a courtroom 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?”

Harlan spoke presciently. Within a generation the segregation he predicted became law. “Equal protection” remained in the Fourteenth Amendment, but on the ground in the South it disappeared.