‘Separate’ Review: Drawing the Color Line
The Supreme Court’s “separate but equal” ruling was met with public indifference. Only the lone dissenting justice seemed to see its implications.
The case of Plessy v. Ferguson is one of the most odious references in American law. Constitutional scholar Akhil Amar has described the Supreme Court’s decision in Plessy, which blessed state-mandated racial segregation, as occupying “the lowest circle of constitutional Hell,” alongside Dred Scott, the decision that denied the possibility of U.S. citizenship for black Americans. But where the court’s 1857 decision in Dred Scott ignited a constitutional crisis, its 1896 decision in Plessy stirred hardly any interest. As Steve Luxenberg recounts in his book “Separate,” Plessy was so low-profile that when one of Homer Plessy’s lawyers died in 1898, his hometown New Orleans Times-Democrat, operating on the mistaken understanding that he had represented the cause of apartheid, credited him for his recent “victory.”
“Separate” helps to explain how a decision of such notoriety among modern observers elicited only indifference at the time. The blunt answer—that Homer Plessy’s case was doomed from the start—does little to detract from the dramatic power of the story that Mr. Luxenberg tells. His narrative, built around biographic sketches of the main characters in the case, offers a striking view of Reconstruction and of the tragic stillbirth of freedom in that era.
Along the way, Mr. Luxenberg, a longtime editor at the Washington Post, deftly draws out the particulars of the case. An early chapter reviews the genealogyof the case’s namesake, detailing his descent from a Bordeaux-born merchant, Germain Plessy, and a “free woman of color,” Catherina Mathieu. Homer Plessy’s family tree was filled with prominent members of New Orleans’s large community of French-speaking, mixed-race Creoles. A group of these gens de couleur libres formed a Citizens’ Committee, led by the newspaper editor Louis Martinet, to test the constitutionality of a Louisiana statute requiring the racial segregation of train-car passengers. They settled on Homer Plessy as their litigant. He was fair-skinned, and his case would rest in large part on the incongruity of his being assigned to either a “white” car or a “black” one. The argument would take aim not only at the unconstitutional inequality created by the color line but also at its arbitrary application.
Brought in by Martinet to handle Plessy’s case were three men of varying backgrounds: a local lawyer, James Walker, who had fought in the Confederate army; a Washington lawyer, Samuel Phillips, who had made his name prosecuting the Ku Klux Klan in North Carolina; and a roving lawyer, Albion Tourgée, whose newspaper columns decrying the abandonment of the South’s freedmen had turned him into a national figure.
Tourgée is the central character in “Separate,” and for good reason. His life encapsulated the early optimism and eventual disappointment that accompanied the nation’s first, halting attempts to recognize the civil rights of all. A native of Massachusetts and Ohio, Tourgée served in the Union army with zeal for the cause of ending slavery. He moved to North Carolina after the war to aid in the establishment of a Union in which, as he put it, there would be “no color before the law.” In the face of considerable personal risk, he and his family stayed there for over a decade until it became obvious that their mission had stalled. He wrote a mournful, fictionalized account of that experience, titled “A Fool’s Errand,” that became a best seller, lapped up by a Northern public that had wearied of Reconstruction and wanted explanations for what had gone wrong. Plessy would be Tourgée’s last act as a proponent of racial equality. One wag, quoted in the Washington Post, mocked his oral argument at the court as “another fool’s errand.”
To be sure, Homer Plessy’s lawyers failed to pursue the strategy that guided later civil-rights lawyering, which aimed for the gradual development of favorable precedent. Tourgée and his colleagues instead jumped headlong into the creation of a case they knew they would likely lose. They faced a court that had been steadily narrowing the scope of the 14th Amendment and its promise of “equal protection of the laws.”
In the event, a nearly unanimous court lined up behind the opinion of Justice Henry Brown, whose reasoning channeled the conventional legal thinking of the day: that the object of the 14th Amendment was to “enforce the absolute equality of the two races before the law” but that, “in the nature of things,” the amendment couldn’t possibly have been meant to “abolish distinctions based upon color” or require “a commingling of the two races upon terms unsatisfactory to either.” He derided as a “fallacy” the assumption “that the enforced separation of the two races stamps the colored race with a badge of inferiority.” Separate did not have to mean unequal.
Had the justices’ treatment of the matter ended there, the decision to bring Homer Plessy’s case would surely have ranked as an unmitigated disaster. But Justice John Marshall Harlan, the former slaveowner from Kentucky, stepped up to deliver a masterly response. He stated the principle of the Reconstruction amendments (including the 14th) succinctly: They had “removed the race line from our governmental systems” and prohibited any “arbitrary separation of citizens” on the basis of color. “Our Constitution is color-blind,” he wrote, “and neither knows nor tolerates classes among citizens.”The enactment of segregation statutes like Louisiana’s, Harlan explained, imposed “a badge of servitude wholly inconsistent” with the “law established by the Constitution.”
Of course, the significance of Harlan’s dissent wasn’t grasped immediately. But he had issued, at Homer Plessy’s instigation, a clarion call that would ring through the ages. Decades later, when Thurgood Marshall and others undertook the long and winding task of undoing Jim Crow, they leaned on Harlan’s Plessy dissent. According to one of Marshall’s associates, it was the text to which Marshall turned in his “most depressed moments.”
Mr. Luxenberg writes at the outset of his book that the story of Plessyis a reminder that “history is made, not ordained.” In his moving portrait of the many figures who played a role in the case, he confirms that idea as well as another: that even the most hopeless fool’s errand can emerge, in time, as an unassailable triumph.
Mr. Dameron is a lawyer in Washington.