Conservative Historian

A Brief History of the United States Supreme Court - Part II: The Nadir of the Supreme Court - Plessy V. Ferguson

July 17, 2022 Bel Aves
A Brief History of the United States Supreme Court - Part II: The Nadir of the Supreme Court - Plessy V. Ferguson
Conservative Historian
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Conservative Historian
A Brief History of the United States Supreme Court - Part II: The Nadir of the Supreme Court - Plessy V. Ferguson
Jul 17, 2022
Bel Aves

In all of the triumphs and failures of our judicial branch, Plessy was the worst.  We explore the history of this ruling.  

Show Notes Transcript

In all of the triumphs and failures of our judicial branch, Plessy was the worst.  We explore the history of this ruling.  

A Brief History of the Supreme Court of the United States– Part II: The Nadir of the Supreme Court: Plessy v. Ferguson 


July 2022


“The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means, today, not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.”


Justice Antonin Scalia 


“Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”


Justice John Marshall Harlan


Whenever I find myself writing about law, I think of the Will Rogers line, “I don’t think you can make a lawyer honest by an act of the legislature. You’ve got to work on his conscience. And his lack of conscience is what makes him a lawyer.” Or this gem, what is brown and black and looks good on a lawyer, a Rottweiler. This does not mean that the law itself is trivial nor a matter of whimsy.


On the contrary, in some form or fashion, the law regulates almost every facet of our lives. This truism, however, does not mean that some of the opacity around its definitions is hard to penetrate. So, with that preamble, I will do my best with a bit of help from those who have forgotten more law than I will ever know.  



There are many views on the interpretation of constitutional lawmaking. One is the originalist vision. In an article entitled Scalia’s Originalism, written in 2011 by Matt Malone in America, the Jesuit Review, the author states, “Scalia still believes in what the Jesuits taught him in civics class: the executive branch executes, the legislative branch legislates, and the judicial branch interprets. Still, the question remains: just what standard of interpretation should they use? Scalia thinks there is a right and wrong way to interpret the Constitution, and he’s been making a case for ‘the right way for two decades, in almost any forum that would have him. Scalia calls his interpretive method “original meaning.” Put simply, the idea is that the Constitution should be interpreted to mean what reasonable people would have understood it to mean when it’s various bits and pieces were adopted. Scalia doesn’t care much for the author’s intention; he thinks their intention is not knowable. In other words, “original meaning” is not an attempt to get inside James Madison’s head. Instead, Scalia is simply saying that, in a democracy, the standard of interpretation should be what the people who voted for the Constitution and its amendments understood the texts to mean when they voted.


The other is the living Constitution, as expressed by Woodrow Wilson. “Living political constitutions must be Darwinian in structure and practice. Society is a living organism and must obey life’s laws, not mechanics; it must develop. All progressives ask or desire is permission-in an era when ‘development,’ ‘evolution,’ is the scientific word-to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.” Not shockingly, this view has many progressive adherents today. In practice, a living Constitution evolves, changes over time, and adapts to new circumstances without being formally amended. Andrew Coan, writing for the Duke Law Journal in 2017 and in citing the works of Jack Balkin, who wrote the book Living Originalism, states, “The nub of Balkin’s argument is that the Constitution’s original public meaning is capacious, providing only a bare-bones constitutional framework, which judges, elected officials, and social movements must and should flesh out in a continuous process of living constitutionalist construction. Having thus defined originalism nearly out of existence, Balkin declares himself a card-carrying member of the club.”  


Writing in the Pacific Legal Foundation, James Burling compares the schools as this, “Originalism’s revival in the 1980s was a reaction to the theory of the “Living Constitution.” That theory called for judges to interpret the Constitution not according to its language but rather according to evolving societal standards. In other words, judges shouldn’t focus on what the Constitution says but on what it should say if it were written today. When the Supreme Court engaged in living constitutionalism, the Justices could pretty much ignore its words. By the time we reached the 1960s, our living Constitution had become a mutating virus injected with the philosophical DNA of the interpreting jurists. By using living constitutionalism to rewrite laws in their constitutional image, conservative scholars accused the Justices of the Warren Court of usurping the legislative branch’s powers.”


And finally, there is Textualism, adds Burling, “Textualism is the theory that we should interpret legal texts, including the Constitution, based on the text’s ordinary meaning. A textualist ignores factors outside the text, such as the problem the law is addressing or what the law’s drafters may have intended. But it does mean considering what the words and phrases in the text meant when a particular constitutional provision was adopted.”


It is probably not a shocker to my audience where I fall. Upon the concept of a living constitution, as with so much else, even Wilson’s analogy does not really make sense. The Constitution is a framework for governance, not a living, breathing thing. 

In fact, it actually operates very much like a machine.  

Here is a passage from Strauss capturing my thoughts. “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles, the whole idea of having a constitution. Of course, public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all?


Even worse, a living Constitution is, indeed, open to situational manipulation. If the Constitution is not constant-if, it changes from time to time-then; someone is changing it and doing so according to their own ideas about what the Constitution should look like. The “someone,” it’s usually thought, is some group of judges. So a living Constitution becomes not the Constitution at all; it is not even law anymore. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us.”


Yet the Constitution is not quite in stone, and there are 27 examples. The authority to amend the Constitution of the United States is derived from Article V of the Constitution. Congress proposed an amendment, the Archivist of the United States, today it is David Ferriero, appointed by Barak Obama, who heads the National Archives and Records Administration (NARA), and is charged with responsibility for administering the ratification process. 


An amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. Instead, Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. 


The Archivist submits the proposed Amendment to the States for their consideration. The Governors then formally submit the Amendment to their State legislatures, or the State calls for a convention, depending on what Congress has specified. 

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). As noted, the Constitution can be changed, so the progressives are wrong because it is in amber. But, like the creation of widespread laws through the Constitution itself, the process is arduous, intentionally so. We have to go back 14 years even to see a 60% Senate much less one that was 67% in agreement. Knowing the passions of the day might mean future bad laws or governance, the process was made to be difficult but not impossible.  


We left the last podcast with the Dred Scott decision, an example of progressive SCOTUS lawmaking in which Supreme Court Chief Justice Roger Taney invented laws relating to the rights of African Americans and the spread of slavery practically out of the ether. Within 15 years of that decision, the amendment process in the form of the 13th, 14th, and 15th amendments, ended slavery, extended citizenship with full rights, and the vote to African Americans (men only). Of course, in the intervening years, a war that claimed the lives of 600,000, mostly Northerners, mostly young people. 


An excellent account of the passage of the 13th Amendment is seen in Steven Spielberg’s epic Lincoln. Though not entirely accurate in its telling, the movie, in addition to being an incredible portrayal, provides enough facts to be a decent primer on both the 13th Amendment and the challenges of getting at 2/3 thirds congressional vote and the ¾ states. Here is the 13th Amendment. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”


The 14th provided citizenship to slaves, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Please note this Amendment because it will become paramount in our discussion of Plessy v. Ferguson later in the podcast.  


That is the part that gets the press. However, section 3 of the Amendment contained a bit of a poison pill provision to keep ex-confederates out of national politics, “No person shall be a senator, or representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who had previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability.”


And the 15th The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.” Such were the times when the people supported African American voting nearly 60 years before allowing women to vote, which was granted in the 19th Amendment.  




Plessy V Ferguson


I called out that part of confederates not being in power with the thought that there would be resentments and rancor after the war. A Lincoln might have managed Reconstruction in such a way that some sort of concord could have come out the other end, but his assignation ended that dream. What was left was an obdurate radical right force-feeding reconstruction and a big surprise in the oval office. Andrew Johnson had endured the hatred of the South for being a unionist Democrat from Tennessee, so much so that Lincoln thought him a good man on the ticket, again, to heal the wounds. In reality, Johnson seemed to reidentify with his southern roots and become an obdurate foe of reconciliation once in office.  


During the era of Reconstruction, Black Americans’ political rights were affirmed by those three constitutional amendments and numerous laws passed by Congress. Racial discrimination was attacked on a particularly broad front by the Civil Rights Act of 1875. This legislation made it a crime for an individual to deny “the full and equal enjoyment of any of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color.” Yet, in 1877, President Rutheford Hayes withdrew federal troops from the South, and the white populations, in such guises as the Ku Klux Klan, began to begin a new form of oppression.  

The following information is taken from the National Archives. In 1883, the Supreme Court struck down the 1875 act, ruling that the 14th Amendment did not give Congress the authority to prevent discrimination by private individuals. Victims of racial discrimination were told to seek relief not from the federal government but from the states. At the same time, state governments were passing legislation that codified inequality between the races. Laws requiring the establishment of separate schools for children of each race were common; however, segregation was soon extended to most public and semi-public facilities through “Jim Crow” laws.

Beginning with the passage of an 1887 Florida law, states began to require that railroads furnish separate accommodations for each race. These measures were unpopular with the railway companies that bore the expense of adding Jim Crow cars. Not surprisingly, segregation of the railroads was even more objectionable to Black citizens, who saw it as a further step toward the total repudiation of three constitutional amendments. When such a bill was proposed before the Louisiana legislature in 1890, the Black community of New Orleans protested vigorously. Nonetheless, the law was passed despite the presence of 16 Black legislators in the state assembly. It required either separate passenger coaches or partitioned coaches to provide segregated accommodations for each race. 


In 1891, a group of concerned young Black men of New Orleans formed the “Citizens’ Committee to Test the Constitutionality of the Separate Car Law.” They raised money and engaged Albion W. Tourgée, a prominent Radical Republican author and politician, as their lawyer. On May 15, 1892, the Louisiana State Supreme Court favored the Pullman Company’s claim that the law was unconstitutional as it applied to interstate travel. Encouraged, the committee decided to press a test case on intrastate travel. With the cooperation of the East Louisiana Railroad, on June 7, 1892, Homer Plessy, a mulatto (7/8 white), seated himself in a white compartment, was challenged by the conductor and arrested, charged with violating the state law. Tourgée argued that the law requiring “separate but equal accommodations” was unconstitutional in the Criminal District Court for the Parish of Orleans. When Judge John H. Ferguson ruled against him, Plessy applied to the State Supreme Court for a writ of prohibition and certiorari. Although the Court upheld the state law, it granted Plessy’s petition for a writ of error that would enable him to appeal the case to the Supreme Court.

The opposing sides presented oral arguments starting on April 13, 1896. The Supreme Court’s decision came on May 18, 1896, nearly four years after Plessy’s arrest. Justice Henry Billings Brown, writing for the Court, upheld the validity of the Louisiana statute with a 7-1 vote with only Justice John Marshall Harlan dissenting (one of the justices abstained). 


Brown stated, “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. If this is 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 argument also assumes that legislation may overcome social prejudice and that equal rights cannot be secured except by an enforced commingling of the two races… If both races’ civil and political rights are equal, one cannot be inferior to the other civilly or politically. If one race is socially inferior to the other, the Constitution of the United States cannot put them upon the same plane.”


The majority opinion dismissed Plessy’s claim that the Louisiana statute violated the Thirteenth Amendment, holding that the statute did not impose a badge of slavery on the plaintiff. The Court found that a “statute which implies merely a legal distinction between the white and colored races . . . has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.”


This is a piece of Harlan’s dissent added to the quote with which we began this podcast. “In the eye of the law, there is no superior, dominant, ruling class of citizens in this country. 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 arbitrary separation of citizens based on race while they are on a public highway is a badge of servitude wholly inconsistent with civil freedom and equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”


This is a tremendously moral argument, one I happily concur with, but the issue is that it is not grounded in the law as we understand it. But this one is: 


On the Fourteenth Amendment question, the object of the Amendment was to enforce “political” equality of the races “before the law.” Unlike the question of abortion in 2022, the 1896 court had a law upon which to rule, an amendment that had stood for nearly 30 years, no less.  


But the Court then advanced two sweeping propositions. First, it said that the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory.” Second, the Court argued that laws requiring segregation of the two races did not necessarily imply the inferiority of either.


But of course, it inherently did. If the races were not, in fact, unequal, if they were alike in all things excepting the pigment of their skin, why a separation at all? 



Expanding on the latter point, Justice Brown found “the underlying fallacy” of the plaintiff’s argument consisted “in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this is 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.” It is hard to find a piece of work so disingenuous as a justice of the Supreme Court, supporting a law that would separate the races at the behests of whites, stating that it was, in fact, the black race that denied the content of the ruling because blacks felt themselves either inferior or superior?


Harlan’s dissent was interesting, given he had come from Kentucky of all places. Yet, even an entire century after its delivery in 1896, Harlan’s eloquent defense of civil rights for black Americans retains its power. Indeed, it was a fount of inspiration for one of the great lawyers of the century, the late Supreme Court Justice Thurgood Marshall. 


At a 1993 ceremony in memory of Marshall, a colleague, Constance Baker Motley, recalled that when Marshall was the lead attorney in the NAACP’s fight to end segregation, he picked himself up in low moments by reading aloud from Harlan’s dissent. And he cited it in Brown v. Board of Education, the 1954 case that finally overturned Plessy v. Ferguson. As quoted in Judicial Enigma, a new biography of Harlan, Judge Motley said: “Marshall admired the courage of Harlan more than any justice who has ever sat on the Supreme Court. Even Chief Justice Earl Warren’s forthright and moving decision for the Court in Brown did not affect Marshall in the same way. Earl Warren was writing for a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity.”


Plessy legitimized state laws establishing “racial” segregation in the South and provided an impetus for further segregation laws. It also legitimized laws in the North requiring “racial” segregation, such as in the Boston school segregation case noted by Justice Brown in his majority opinion. Legislative achievements won during the Reconstruction Era were erased through means of the “separate but equal” doctrine. The ruling basically granted states legislative immunity when dealing with “race” questions, guaranteeing the states’ right to implement racially separate institutions, requiring them only to be equal. From 1890 to 1908, state legislatures in the South disenfranchised most blacks and many poor whites by rejecting them for voter registration and voting: making voter registration more difficult by providing more detailed records, such as proof of land ownership or literacy tests administered by white staff at poll stations. African-American community leaders, who had achieved brief political success during the Reconstruction era and even into the 1880s, lost gains made when their voters were excluded from the political system. Historian Rogers Smith noted on the subject that “lawmakers frequently admitted, indeed boasted, that such measures as complex registration rules, literacy and property tests, poll taxes, white primaries, and grandfather clauses were designed to produce an electorate confined to a white race that declared itself supreme,” notably rejecting the 14th and 15th Amendments to the American Constitution.


For me, Plessy V. Ferguson is a case study of majoritarianism concerns. When the law passed, there were no street protests, no threats to the justices for ruling as they did, and no marches on the Supreme Court building. Aside from African Americans, then and now a minority in the Republic, there was enough support for it to become the law of the land for the next 60 years. This time frame also dispels the notions of Super precedents often extolled to maintain Roe V. Wade. Plessy was terrible but lasted even longer than Roe.  


It is also a warning for originalists, of which I am happily one. Unlike Dred Scott or even Roe, Plessy was not making law out of nothing. 

Instead, it was upholding the rights of state legislatures to determine their own course; something sought after in the recent Dobbs decision. The existing state law does not mean it is the final declaration. 

Yet the difference in Plessy and Dobbs is not that the courts were either upholding or demanding state law to determine the course, but rather that Plessy was abrogating not only the 14th Amendment but the entire purpose of the Civil War that was the genesis for the 13th, 14th, and 15th amendments. 


Lincoln’s new birth of freedom led to those laws but so did his concept that a house divided against itself cannot stand. Plessy created that divided House and did so after the 14th Amendment, painstakingly wrought by a 2/3 majority in the House and ¾ of all the states. An originalist reads the Constitution as it is written, and the 14th Amendment is right there. I started with a quote from Scalia, and one misnomer is the word adopted. Because of the amendment process, adopted can also mean at the time in which the Amendment happened. And the purpose of the 14th Amendment here is clear. That is why an originalist would not go back to a property requirement for voting nor deny women the franchise because there is now text to defray that. And this is where Textualism comes in. There is no ordinary meaning in the 14th or 15th amendments about the separation of races. Nor would an ordinary person fail to see that the real reason that Plessy became law had nothing to do with equality and everything to do with recreating a post-Bellum, post-slavery inequality in which African Americans were not only second-class citizens but in many parts of the country, not citizens at all in the sense of the word. And that a white majority supports inequality.  


Harvard Law Professor Rachel Reed, quoted in the Harvard Law Today blog, states, “Their claim was straightforward: that everyone knows why Louisiana enacted this segregation law; it’s to keep Black people down, to say to them that they’re inferior, to make it so that white people don’t have to associate with Black people and to do it through the law. Plessy’s claim was about the intention behind the law, that the intention was discriminatory, and that that was exactly the kind of thing that the 14th and even the 13th Amendments had been framed and ratified to prevent.”


The laws enabled by Plessy leached into all areas of life: education, transportation, restaurants, theaters, neighborhoods, and even cemeteries. The legacy of slavery is an indelible part of our history, but for me, it is Plessy that lives with us today, and it represents the nadir of the Supreme Court.  


Some may say it is Dred Scott, but there was the inevitability of the American Civil War. 

Almost 20 years before Fort Sumter, South Carolina almost perpetuated the war at a time in which the North might not have been positioned to prevail. The great Kevin Williamson calls Andrew Jackson a terrible president, but I beg to differ. 

His record contains moments of extreme depravity ranging from his slaughter of the Seminoles as a general to the trail of tears as President. But there was something about the Southerner Jackson that had a don’t screw with me vibe not present in an Illinois country lawyer with one term in Congress. Those wars against the Seminoles and a victory against the British army at New Orleans carried a fear of Jackson that kept the nation together and allowed a further 20 years of Northern development while the South stagnated with their slave economy. So Dred Scott, along with the Kansas-Nebraska Act, the ineffectuality of Pierce and especially Buchanan, and the election of Lincoln all contributed to the start of the Civil War.  


But the passage of the 13th and especially the 14th and 15th amendments pointed the way towards a better, post-slavery, postbellum America. But with Andrew Johnson, the reemergence of white southern oppression and the withdrawal of federal troops set the table. But if the Supreme Court had the courage of Harlan Jackson and went against the majority of the country, one wonders about the outcome. As it was, they put a legal patina on the oppression that was supposed to have been decided on the bloody fields of Gettysburg, in the halls of Congress, and in 1860s legislatures. 


I see Plessy in many places today, especially in our educational systems where public school teacher’s unions lock brown and black students into inferior educational systems and public housing schemes. 


Yet there is a movement among many African Americans for a sort of separation that Justice Brown might have agreed to. I see it in affirmative action programs that lower the expectations of black performance. 

And I see it today in black-only dorms, no white days, or even in the inception of history such as the 1619 project. However laudable. I see it in the celebration of holidays such as Juneteenth or the use of Live Every Voice and Sing as a black sub in for the national anthem. Separate but equal did not work in the 1890s, and it should not be enabled in 2022.  


In all of these cases, the concept is the same as Plessy, separation, from which will come inequality. Those who think furthering the distinctions of the races will somehow lead to better outcomes are either naïve or simple hucksters such as Patrice Cullors of Black Lives Matter making millions off the concept of separation of races. Slavery ended 170 years ago, but Plessy lives with us today.