Plessy v. Ferguson (1890)

The Reconstruction amendments and the Civil Rights Acts were tested before Plessy and the Comite des Citoyens staged their civil disobedience.

Five cases of discrimination, grouped together as the Civil Rights Cases, made it to the Supreme Court in 1883. The defenders of the Act of 1875 relied on the Thirteenth and Fourteenth Amendments. They insisted that racial discrimination was one of those “badges and incidents” of slavery that Congress had the right to outlaw, as per the Thirteenth amendment. The Court disagreed, claiming that the discrimination was a civil injury and not a legacy of slavery. The Fourteenth amendment, according to the Court, addressed only those actions perpetrated by the states, which were not concerned with the private enterprise of hotels and restaurants. The only dissenting justice was John Harlan, but it was Harlan's dissent in the latter case of Plessy v. Ferguson that would become eternal, and that would “stand out as a beacon to guide civil rights adjudications throughout the second half of the twentieth century” (1).

cabildo court

Instead of seeking a trial, Plessy's lawyers sought a dismissal of the charges before Judge John H. Ferguson on October 13, 1892, using the Thirteenth and Fourteenth Amendments to reveal why Louisiana's Separate Car Act was unconstitutional. Plessy's lawyers argued that any “badge of servitude,” such as the separation of blacks and whites on the railways, violated the Thirteenth Amendment; as slavery was banned with the amendment, so were the vestiges that accompanied it. The lawyers argued, as the anchor of their case, that the Louisiana Act violated the “privileges and immunities” granted to their client by the Fourteenth Amendment, thereby rendering the act unconstitutional (2).

Louisiana argued that the State had powers granted by the Tenth Amendment to protect the safety, health, and welfare of its citizens, and that no discrimination was present since whites were also barred from sitting in “colored” cars. Of course, it was clear to everyone that the accommodations were not equal (3). On November 18, 1892, Judge Ferguson ruled against Plessy, finding “no pretense that he was not provided with equal accommodations...,” and was simply “deprived of the liberty of doing as he pleased, and of violating a penal statute with impunity.” Four days later, the State Supreme Court upheld Ferguson (4). Plessy appealed to the U.S. Supreme Court and was denied by a vote of seven to one (one judge was absent). Justice Henry B. Brown wrote the majority opinion, and Justice John Harlan provided the minority opinion.

Plessy's Supreme Court appeal was based primarily on two distinct arguments. The first was that Plessy's race was mis-identified by the railroad conductor and that he was denied his rights as a white citizen. Albion Tourgee, Plessy's lead counsel, argued that race and reputation was a type of property. Justice Brown did not disagree, but disposed of this argument by the fact that Louisiana deemed Plessy a black man, not a white man (Plessy was one-eight black, and his skin color was probably the only thing he had in common with Judge Ferguson)(5). The second matter was that the Louisiana law conflicted with the Thirteenth and Fourteenth amendments, therefore was unconstitutional (6). Tourgee argued that the Louisiana Act pinned a “badge of servitude” upon Plessy and other Negroes, thus violating the broader reading of the Thirteenth Amendment. Justice Brown “cavalierly” dismissed this by claiming that the amendment is “too clear” on this matter, that Louisiana was not enslaving Plessy; Justice Brown held to a narrower version of the amendment and referenced the outcome of the Civil Rights Cases. Tourgee claimed that Plessy was denied his equal protection and due process rights granted under the Fourteenth amendment; he argued that the intention of the Louisiana law was not to promote the public good, but the happiness of the whites.

Justice Brown found major fallacies with Plessy's Fourteenth Amendment claim. One was that the Louisiana law granted separate and equal accommodations; thus, the law did not place a “badge of inferiority” on blacks (7). Another was his rejection of Tourgee's desire for a judicial interpretation of the Fourteenth amendment that would reflect the framers' intent to fully protect the rights of blacks as American citizens. This, according to Justice Brown, “assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by the enforced commingling of the two races...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” (8). The Fourteenth Amendment protected only the civil rights, not the social rights, of citizens (civil rights being such as contracts and owning property; social rights being the right of association).

The lone dissenter, Justice Harlan, argued that the majority decision violated the Constitution. Justice Harlan did not rely on “the nature of things,” or “natural law,” as Justice Brown did, but place his faith in the written word. Justice Harlan writes in his dissent, “The glory of our American system of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power.” He denied Justice Brown's assertions that the “natural justice inherent in the Anglo-Saxon character would suffice to avoid the abuse of power.” (9). Justice Harlan argued that the Court's duty was to rule on the constitutionality of the Louisiana law, not the reasonableness of it. The law, according to Harlan, was unconstitutional, since for him, “our Constitution is color-blind, and neither knows nor tolerates classes among citizens." He wrote further that the consequences of the ruling would not promote public good, but harm it, by arousing “race hate” and creating a feeling of “distrust” between the two races (10). Justice Harlan was soon proven correct in his assessment.

It is of interest to note that the Plessy decision arose from events that happened in Louisiana. Of all the Confederate states, Louisiana represented the best chance for blacks after the War to obtain and retain civil rights. The state had the largest population of “free people of color,” some of whom were prosperous and well-educated, creating a substantial group from which leaders could arise. The blacks in 1870 were in a majority, 374,000 to 372,000, and represented a majority in over half of the parishes. The large metropolis of New Orleans represented business, not agriculture, and it is reasonable to assume that civic leaders would not want to disrupt the peace and order with attempts to repress civil rights (11). These favorable conditions did lead to a civil rights movement after the War, but by the end of Reconstruction, white supremacists were well on their way to regaining control of the state, and of the South.


1. Harvey Fireside, Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism (New York: Carroll & Graft Publishers, 2004), 119.

2. ibid., 118-120.

3.ibid., 120.

4. Keith Weldon Medley, We as Freemen: Plessy v. Ferguson (Gretna, La.,: Pelican Publishing Company, 2003), 86.

5. Richard A. Maidment, "Plessy v. Ferguson Re-Examined," Journal of American Studies 7, no. 2 (1973): 126.

6. Fireside, 203.

7. Brook Thomas, ed., Plessy v. Ferguson: A Brief History with Documents (Boston: Bedford/St. Martins, 1997), 33.

8. Fireside, 213.
9. Thomas, 35.
10. ibid., 36.

11. Donna A. Barnes and Catherine Connolly, "Repression, the Judicial System, and Political Opportunities for Civil Rights Advocacy during Reconstruction," The Sociological Quarterly 40, no. 2 (Spring, 1999): 333.