Justice Harlan Stands Alone Again

From the State-Action Barrier to State-Mandated Segregation

I. From Federal Retreat to State Command
The Civil Rights Cases of 1883 restricted the power of Congress to protect Black citizens against racial discrimination by private proprietors.

Plessy v. Ferguson presented a different constitutional wrong.

This time, racial separation was not merely the choice of a private business.

It was commanded by the State.

Louisiana’s Separate Car Act of 1890 required railway companies carrying passengers within the State to provide “equal but separate accommodations for the white and colored races.” It directed railway officers to assign passengers to coaches or compartments according to race and imposed criminal penalties upon passengers who entered a compartment to which they had not been assigned.

The constitutional movement was unmistakable.

Federal protection had retreated. State segregation advanced into the opening.

In 1896, the Supreme Court gave that advance a constitutional doctrine.

II. Homer Plessy and the Test of Louisiana Law
Homer Adolph Plessy did not enter the East Louisiana Railway by accident.

He was a New Orleans shoemaker, a citizen of mixed ancestry, and a participant in a carefully organized challenge supported by the Comité des Citoyens—the Citizens’ Committee formed to resist Louisiana’s segregation law.

On June 7, 1892, Plessy purchased a first-class ticket for travel from New Orleans to Covington, Louisiana. He entered a coach reserved for white passengers and informed the conductor that Louisiana law classified him as Black.

When he refused to move to the coach designated for Black passengers, he was arrested and charged under the Separate Car Act.

Plessy challenged the statute before Judge John H. Ferguson, arguing that compulsory racial separation violated the Thirteenth and Fourteenth Amendments.

After the Louisiana courts rejected his claim, the constitutional test reached the Supreme Court of the United States.

The case concerned one railway law and one passenger.

Its constitutional consequences would reach far beyond the railroad car.

III. The Constitutional Claims
Plessy’s challenge rested upon the constitutional settlement produced by the Civil War and Reconstruction.

The Thirteenth Amendment had abolished American chattel slavery and involuntary servitude, except as punishment for crime. Its enforcement clause authorized Congress to secure that abolition against the badges and incidents of the former slave system.

The Fourteenth Amendment had made national and state citizenship constitutional, prohibited States from abridging the privileges or immunities of citizens of the United States, and required due process and equal protection of the laws.

Louisiana answered that separation did not necessarily mean inequality.

The State claimed authority under its police power to regulate intrastate railway travel and preserve public order by assigning the races to separate accommodations said to be equal.

The question was therefore not whether the law classified by race. It plainly did.

The question was whether a State could command that racial classification while still claiming to provide constitutional equality.

IV. The Majority Constitutionalizes Separation
On May 18, 1896, the Supreme Court upheld the Louisiana law.

Justice Henry Billings Brown wrote for a seven-Justice majority. Justice John Marshall Harlan dissented. Justice David J. Brewer did not participate.

The majority rejected the Thirteenth Amendment claim because the statute did not reestablish legal ownership of persons or impose involuntary servitude.

It rejected the Fourteenth Amendment claim by separating legal equality from social association.

The Amendment, the Court reasoned, was intended to establish equality before the law. It was not intended to abolish every distinction based upon color, enforce social equality, or require the commingling of the races upon terms unsatisfactory to either.

If the railway accommodations were equal, the majority concluded, the State could require them to be separate.

That constitutional formula became known as “separate but equal.”

In practice, separation would become the rule.

Equality would become the promise repeatedly denied.

V. The “Badge of Inferiority”
The majority confronted the argument that forced separation placed a badge of inferiority upon Black citizens.

Its answer exposed the central failure of the decision.

The Court declared that if Black citizens understood the law as stamping them with inferiority, that meaning arose not from the statute itself but from the construction they chose to place upon it.

But the law did not leave passengers free to associate or separate by mutual preference.

It used public authority to divide them by race, assigned railway officers to enforce the boundary, and threatened criminal punishment against the passenger who crossed it.

The constitutional injury was not only unequal furniture, unequal space, or unequal service.

It was the State’s command that one class of citizens be marked, separated, and controlled because of ancestry.

The majority treated that enforced boundary as a neutral regulation.

History would reveal it as a foundation of the Jim Crow order.

VI. Justice Harlan Stands Alone Again
Justice Harlan had dissented alone when the Court struck down the principal public-accommodations protections of the Civil Rights Act of 1875.

He stood alone again in Plessy.

Harlan rejected the claim that Louisiana’s law was a constitutionally innocent regulation. Everyone knew, he wrote in substance, that the statute was designed not to exclude white passengers from coaches occupied by Black citizens, but to exclude Black passengers from coaches occupied by white citizens.

The Constitution, he declared, is color-blind and neither knows nor tolerates classes among citizens.

In respect of civil rights, all citizens are equal before the law. The humblest citizen, Harlan insisted, was the peer of the most powerful.

He warned that the decision would prove as pernicious as Dred Scott and would stimulate aggression against the rights of citizenship secured by the Reconstruction Amendments.

Harlan’s dissent must be read honestly, not converted into legend without remainder. It also contained degrading anti-Chinese rhetoric and reflected racial assumptions of its own era.

Its constitutional principle was greater than all of its author’s prejudices: government may not create a caste of citizens by law.

VII. A Decision Larger Than One Railroad Car
Plessy directly upheld a Louisiana statute regulating intrastate railway accommodations.

It did not itself decide every later controversy involving segregated schools, neighborhoods, parks, hospitals, courtrooms, prisons, or military institutions.

But its reasoning supplied constitutional permission for state and local governments to build a much larger system of compulsory racial separation.

The doctrine joined with disfranchisement, racial terror, economic coercion, and the weakening of federal enforcement to confine Black citizenship within boundaries the Reconstruction Amendments had been adopted to destroy.

The separate facilities were rarely equal in fact.

Yet even perfect physical equivalence could not erase the constitutional meaning of a law that assigned public status according to race.

Plessy converted the Equal Protection Clause from a prohibition against state-imposed racial caste into a doctrine permitting caste so long as its formal arrangements could be described as equal.

That was the constitutional contradiction at the center of the case.

VIII. The Great Constitutional Drift Deepens
Plessy did not begin the Nation’s retreat from Reconstruction.

It followed the narrow construction of national citizenship in the Slaughter-House Cases, the restriction of federal enforcement in United States v. Cruikshank, the political retreat associated with 1877, and the state-action barrier of the Civil Rights Cases.

Each decision involved a distinct constitutional question. None alone created the entire system that followed.

But together with executive withdrawal, congressional retreat, state resistance, and organized racial violence, they formed a constitutional environment in which the protection promised after American chattel slavery could be denied in practice.

Within this series, Plessy marks a deepening of the Great Constitutional Drift.

The Court did more than fail to stop state segregation.

It furnished segregation with the language of constitutional legitimacy.

The Nation would live under the consequences for generations.

IX. The Long Road Toward Brown

Plessy was not defeated in a single moment.

Black citizens and their allies challenged segregated institutions through organizing, journalism, education, migration, legislation, and litigation across decades.

Within the courts, later decisions exposed the instability of the promise that separate facilities could be equal.

Missouri ex rel. Gaines v. Canada required a State providing legal education to white citizens to provide it within the State to Black citizens as well. Sweatt v. Painter recognized inequalities extending beyond physical facilities into reputation, influence, and professional opportunity. McLaurin v. Oklahoma State Regents rejected internal restrictions that impaired a Black graduate student’s ability to study and exchange ideas with other students.

In Brown v. Board of Education, the Supreme Court held in 1954 that separate educational facilities are inherently unequal and rejected Plessy’s contrary rule in the field of public education.

Other decisions and federal enactments continued the dismantling of legally enforced segregation beyond the schools.

The constitutional recovery was real.

The delay was also real.

X. The Continuing Question of Constitutional Stewardship

Plessy is now remembered as an infamous constitutional failure.

But remembrance is not enough.

The case asks how constitutional language devoted to equal protection could be interpreted to permit government-imposed racial caste—and why the other branches and the Nation permitted that interpretation to govern for so long.

This essay does not suggest that constitutional stewardship authorizes a President to disregard the Supreme Court.

It asks whether the Take Care duty also requires the Executive to recognize the purposes of valid constitutional amendments and statutes, use every lawful authority that remains available, protect federal rights within executive jurisdiction, and resist the conversion of constitutional guarantees into empty forms.

Harlan’s dissent did not possess the force of law in 1896.

It preserved a constitutional truth for Posterity.

As America enters its 250th year, Plessy reminds We the People that constitutional drift is not inevitable. It is sustained by choices—judicial, legislative, executive, state, local, and popular.

Its correction also depends upon choices of significant caliber.

The next great judicial station would be Brown v. Board of Education, where the Court began to withdraw the constitutional sanction Plessy had given to segregation.

Constitutional Questions for Executive Consideration

1. How did the Plessy majority distinguish civil or political equality from social equality under the Fourteenth Amendment?
2. Can a law compelling racial separation ever be constitutionally neutral merely because it promises physically equal accommodations?
3. What did the majority fail to recognize when it attributed the badge of inferiority to the interpretation of Black citizens rather than to the State’s command?
4. How should Harlan’s color-blind constitutional principle be assessed alongside the prejudicial language contained in the same dissent?
5. What lawful responsibilities remained to Congress and the Executive while Plessy governed state-imposed segregation?
6. What does the interval between Plessy and Brown reveal about the cost of delayed constitutional correction?
7. As America enters its 250th year, what safeguards can prevent a constitutional guarantee from being preserved in words while defeated in administration?

Primary Sources

• Louisiana Act No. 111 of 1890 (Separate Car Act).
• Plessy v. Ferguson, 163 U.S. 537 (1896).
• S. Constitution, Amendments XIII and XIV.
• The Civil Rights Cases, 109 U.S. 3 (1883).
• Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
• Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).
• Sweatt v. Painter, 339 U.S. 629 (1950).
• McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
• Brown v. Board of Education, 347 U.S. 483 (1954).