Plessy Vs. Ferguson

We walk through Plessy v. Ferguson and how a planned railcar protest helps the Supreme Court legitimize Jim Crow through the “separate but equal” doctrine. We also dig into Justice John Marshall Harlan’s dissent and why his warning about caste and constitutional duty keeps showing up in modern legal fights. 
• rise of Jim Crow segregation in the 1880s and 1890s and why transportation becomes a focal point 
• why public accommodations matter in constitutional law and equal access 
• Homer Plessy’s test case and what “passing” reveals about racial classification 
• the unusual coalition of civil rights activists and railroad operators opposing segregation mandates 
• the Court’s reliance on “reasonableness” and its attempt to recast civil rights as social policy 
• Harlan’s separation of powers critique and his colorblind Constitution argument 
• how Plessy becomes a green light for broader segregation across schools and daily life 
• how dissents shape legal strategy and help pave the way to Brown v. Board of Education 

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Transcript

elcome And Case Setup

SPEAKER_01 0:49

Welcome back to Civics in a year. Today we're talking about the Supreme Court case in 1896, Plessy versus Ferguson. And we have Dr. Sean Weinberg back with us. Dr. Weinberg, there's so much to this. This essentially creates the doctrine of separate but equal, but there's so much more to it. So, Plessy versus Ferguson, what do we need to know about this case?

im Crow Rises In Transportation

SPEAKER_00 1:15

Well, quite a bit. We've already been talking about it and alluded to it and dancing around it in several podcasts. So as we've, as I sort of alluded to in a couple of the other ones, in the 1880s and 1890s, you start seeing the sort of rise of this sort of Jim Crow separate racially hierarchical regime. And one of the places that you start to see that is in is in transportation. And so they want to basically create segregated transportation where, like all, you know, blacks and whites have to sit on different front or left, front or back, left or right, whatever, but they're supposed to be segregated. Now it's worth emphasizing this is a relatively new phenomenon. And think about this. Why would this be a new thing? Why would you not want racial segregation like this if it's like 1860 or 1855?

unknown 2:08

Right?

omer Plessy And The Test Case

SPEAKER_00 2:08

If you're a white southerner, you want to have your slaves on the train with you, carrying your stuff or something like that, right? You don't actually have segregation built up when slavery is what's doing the sort of racial division. And so you have this movement in the 1880s to say, well, now we have to figure out what's a new way we can enforce this in a this basically racial system. And so now you start seeing all this stuff come up. And so that's an important thing. And just to show how quickly this changes, a few years before, the states are basically passing explicit, explicit southern states under reconstruction are passing explicit sort of anti-segregation things. So that's the backstory here. The southern states are starting to segregate. A railroad car or something like that is not just a grocery store or something like that. It is a public accommodation, which for common law for centuries had very, very strong levels of access and equal protection guarantee, like sort of guarantees to it. So this is a big deal in law. As we were sort of talking about before the podcast started, the actual backstory of this case is really interesting. Because Homer Plessy, the of the case name, is seven eighths white. He looks like a white guy. So he walks on the car, he walks on, he buys his ticket, he sits down, the conductor doesn't care. And then he says, By the way, you should know I'm a black American. By the way. And the guy's like, What? He has to be removed under law. Now, why is pl why is Plessy doing this? Because there's a there's basically a joint effort between civil rights activists and also railroad operators. They are partly funding this because for them, this is an annoying, unfunded, like irritating government regulation. So they basically don't want, like, I don't want to deal with having to enforce this. This is just an extra basically annoying nanny-state rule to them. And so you have this sort of weird, interesting coalition of basically business libertarians with the civil rights activists, which is not uncommon actually. The NAACP's leadership, originally, like Moorefield's story, are often sort of business libertarian types in some ways. But so the Supreme Court hears this case, and it is whether it is unconstitutional under the 13th and especially 14th Amendment for a state to mandate. Again, we're not even talking about tolerating a railroad doing it himself, to mandate uh basically racial and egalitarian structure like this. And the case is really fascinating. The dissent, I think, is rightly celebrated as one of the most important constitutional writings uh in American history by John Marshall Harlan. Now, Harlan is worth a little bit of a detour on as well. Harlan is a former slaveholder himself. He is from, I think, Kentucky, if I recall correctly. So he I don't so he is, but he's the only one that dissents on this. So we have this like fascinating thing of uh he's not Confederate, Kentucky State's Union, but he's clearly Kentucky's a southern state. We have a southern former slave holder that says, like, we have this constitutional amendment, we should probably enforce this. So that's the sort of the backstory of how we get to to Plessy. I can talk, I'll talk more about the sort of the doctrine, et cetera, in a second, but I'll I'll I'll hand it back to you if you have other questions you want to get me to.

hy Railroads Join The Fight

SPEAKER_01 5:37

So why is it a common thing for, you know, you're talking about how the railroads are getting involved. Is this a at the time a common thing for, you know, businesses and things to get involved in Supreme Court cases and in laws?

he Majority Opinion And Reasonableness

SPEAKER_00 5:56

I mean, we're yeah, they're always there's tons of cases that involve railroads are actually regular, there are lots and lots of case law about this. Less for the the sort of racial piece here and more for this is an era when sort of kind of concerns about monopoly and concerns about access to again, they're basically a utility, right? I mean, a railroad is closer to be a utility at the time. If you're a farmer and you can't get your stuff, there's there's my students are always baffled, like, why are half of these cases we're reading from the 70s and 80s about like grain silos and railroads and whatnot. So, yeah, so railroads are very invested, and you know, businesses always invested from time immemorial in you know, regulations of property affect not just citizens, but businesses too. So that's not uncommon. I don't know if they expected this case to become as as important as it did, but it definitely does. So the opinion of the majority is, you know, generally speaking, when I read through a Supreme Court case, like I can read both sides, like I see where you're coming from, even if I'm pretty sure I know. And even ones where I like don't like the outcome, I can usually see the legal reasoning. This is one where the more I squint at it, the more I find it utterly baffling. The majority opinion. I think their their take on the 13th Amendment is probably pretty defensible. They say, look, there's a big deal between an amendment banning slavery and an amendment and like implementing that and saying, and therefore we're regulating railroads. Like I can buy that piece. But the 14th Amendment's part is really quite bizarre. And the bulk of the opinion is effectively they say, look, the government is not supposed to be regulating your social interactions. To which, like Frederick Douglass would say, yes. Like I'm not wanting the government to like, you know, police who invites me to their home for tea at night, but whether I can basically participate in a public accommodation is a core, like that's a civil right. And sort of being able to basically operate in society requires you to be able to like go on streetcars or public transit or go to you know, go to court, things like this, right? And so, you know, his argument is not that this is about what you do like behind closed doors. But that's how the Supreme Court kind of wants to make this. They say, look, this is about social policy. They're trying to make, they're trying to make, you know, the government can't be responsible for doing that. And so we don't need to worry. So this is just an effort to basically keep public peace. And so then they say, you know, they say, at the end of the day, we're ultimately going to assess whether this law is reasonable. And that's a doctrine that they have at the time. Whether for we talked about whether classifications are reasonable or not. And they say, look, this one seems reasonable. And they more or less just sort of take that on faith. And this is one of the things that Harlan in his dissent really attacks them on. Even before we get to the sort of the race piece, Harlan says what the court is doing in the Plessy opinion is a violation of both federalism and separation of powers. Because they say, What's our job? Like fifth grade civics version, what's the Supreme Court's job supposed to be? Not our terms.

SPEAKER_01 9:05

To say what the law means or what it says.

arlan’s Dissent And A Colorblind Constitution

SPEAKER_00 9:09

Yeah, it's interpreting the law. Yeah, it's interpreting and applying the law, and particularly the constitution in this case, or statutes, but like it's applying and interpreting constitutionalism. And so as Plessy says, why do they spend half their opinion talking about reasonability? He says, I do not understand how the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet may be characterized as unreasonable. He goes on to say, there's a dangerous tendency in these days to enlarge the functions of the court by means of judicial interference with the will of the people as expressed by the legislature. Our institutions mean that the three departments of government are coordinate and separate, each keeps within the limits defined by the Constitution. If the power exists to enact a statute, that ends the matter. And then because he's effectively saying that the court shouldn't be saying, is this reasonable or unreasonable? That's the legislature's job. And more so, and he he alludes, he makes it a little clear in some of his other opinions, but he picks up on this. We as federal courts shouldn't be deciding whether state policy is reasonable or unreasonable. So when we do that, we are enlarging our function. We're acting where we shouldn't. But then he sort of pivots back around and says, but also now we're not acting where we should. Because in this case, this isn't about whether this law is reasonable or unreasonable. This is whether the equal protection of the laws guaranteed by the 14th Amendment, or the privileges and immunities of citizenship, depending on which one you want to point at, whether basically the constitution allows a racial caste system. And then the most famous line from this, right, he says, in the view of the Constitution, the eyes of law, there is no superior, dominant, ruling class of citizens. There's no caste here. Our constitution is colorblind and neither knows nor tolerate classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful powerful. The law regards man as man and takes no account of his surroundings or of his color when civil rights are guaranteed by the Supreme Lawlands. He says, look, we have the actual constitution here. We should be enforcing that, not doing these weird side quests about reasonability and unreasonability. So the section I just read to you is the most famous piece, but it actually follows this really interesting kind of separation of powers federalism piece that's much more biting in its critique of what the court's doing, what the court's doing overall. And he goes on to say, and I think he's right about this, he says this decision will not only stimulate aggressions, more or less brutal and irritating upon the admitted rights of citizens, but will encourage the belief that it is possible by means of state enactment to basically defeat the recent amendments of the Constitution. And he's completely right about that. You know, plus he ends up serving as an additional green, as one of the additional green lights to the southern states wanting to build their system of racial hierarchy.

eparate But Equal Spreads Nationwide

SPEAKER_01 11:57

So I when we talk about separate but equal, then and this doctrine that came out of it, this is where we see these famous, you know, photos of like the separate drinking fountains. And in that, then the Supreme Court is saying, yeah, that's completely constitutional.

SPEAKER_00 12:12

The court is saying as as long as basically a white southerner and a black southerner can both get on the train, it doesn't matter if one's in the front and one's in the back, or it gets extended out to then say, and then they extend this out to say, well, as long as there is a school system for white southerners and a school system for black southerners, as long as they're equal. And you know, Harlan, and so the majority wants to say, look, left, right, front, back, whatever, this is the same. And Harlan's obviously saying, like, no, no one is particularly caring whether it's front or back or left or right. Like, this is part of a reinforcing system that you're you're trying you're trying to do. Eventually, some of the smarter Southerners will get spooked and realize that they've let the systems become so unequal, they're gonna lose on the second prom, even within Plessy. And so some of the some of the like 1930s Southern Democratic governors say, we need to actually spend a lot more money on our, you know, our black school system, or we need to build better water fountains or whatever, because we're gonna lose even under Plessy, as bad as it is to sort of black rights. We're gonna lose even under Plessy. But yeah, Plessy sets this and then it gets reinforced as Plessis, obviously about rail cars, but you have many, many subsequent cases that just say see Plessy, and they sign off on other things. So, yeah, Plessy is basically the green light to create sort of, as you said, all the famous images of the water fountains or the different school systems or whatever, which eventually gets unwound originally by attacking the equal piece, and then them eventually saying, look, we're gonna have to keep doing this over and over and over. It's clearly inherently unequal. Effectively, Harlan was right to say, look, the obvious purpose of this is to create uh, you know, this isn't like left-handed and right-handed people. Like there's an obviously a reason that they're doing this as part of a broader system.

SPEAKER_01 14:02

And this, and we've kind of talked about this in another episode, but this is why dissents are important. Even though a dissent is not, you know, the law, it this dissent was used by Thurgood Marshall.

issents That Shape Future Victories

SPEAKER_00 14:19

Thurgood Marshall and WACP who we look in the forehead, yeah.

SPEAKER_01 14:22

Yes, Thurgood Marshall in his arguments for Brown versus Board. So this is dissents are important in American legal history and American political history and just American history in general. These dissents matter.

SPEAKER_00 14:35

Yeah, I can't remember the exact quote, but there's some line that uh that that someone referred to, or Thurgood Marshall says, like, that was effectively my lodestar inspiration. I don't remember exactly what the sort of inspirational framework, like inspirational like language was exactly. But yeah, the Harlan descent is is a massively important document for that reason. And partly because it's well written, partly because it's such an effective condemnation of the court, again, on both pieces. Like you guys aren't doing real law. It's one thing if you like get a hard, you know, a case that has an unfortunate result. Like, you're not even doing that. You know, and and uh just while I'm while I'm picking at it even some more, right? You know, when they're talking about reasonableness in the majority opinion, they say, look, there's discretion on the part of the legislature. And we're looking for reasonableness. The legislature can think of the established usages, customs, and traditions of the people. Fair enough. But as I pointed out, five years, seven years is hardly making it an established usage, custom, and tradition of the people. This is hardly looking back to you know English common law running around in the forests kind of thing. So, I mean, the the the majority opinion is just it's the it's just odd and it's just bad. So there's a again, a reason, as you were saying, why the Harlan descent ends up being it's it's almost not even fair looking back in history. Like it's so much, even independent of the outcome being just the legal reasoning is much better, the writing is much better. The historical analysis, again, Harlan, I think, is a little pushy on the 13th Amendment, but the legal analysis is just far better.

odern Echoes And Closing Thanks

SPEAKER_01 16:12

Then that just goes to show like the Supreme Court isn't always right, which is why there are checks on the Supreme Court, not only for themselves, because again, we talk about how Brown versus Board overturns this doctrine in the public education system. But Congress can always pass you amendments. Like there's so many things that can happen. The Supreme Court is supposed to be the least threatening branch, according to Alexander Hamilton. And they do get it wrong sometimes. And that's kind of again the fun thing about studying American history is seeing how that progresses through. So, Dr. Weinberg, thank you so much for going through this and really talking about why this mattered at the time, and then also, you know, why dissents matter? So thank you.

SPEAKER_00 17:03

Which one still matters? People quote this all the time in cases in recent years. So everybody basically wants to be Harlan. If you read the debates about you read SFFA, the affirmative action case, everybody says I'm John Marshall Harlan. And that's that's a striking thing. There you go.