The Great Dissenter (Plessy v. Ferguson) | The Equal Protection Clause, Pt. 1

Alex tells the story of Supreme Court Justice John Marshall Harlan, a former Kentucky slaveowner who became the sole voice left on the Supreme Court defending equal rights under the law.

Transcript

SPEAKER_01 0:00

Come listen, all you gals and boys, I'm just from Tuckahoe. I'm going to sing a little song, my name's Jim Crow. Wheel about and turn about and do just so. Every time I wheel about a jump Jim Crow.

SPEAKER_03 0:16

In the 1830s, while slavery was still legal all through the southern United States, a traveling performer from New York City named T. D. Rice would adapt and popularize a traditional slave song called Jump Jim Crow. He would dress in blackface and perform minstrel shows for white audiences, depicting a raggedy, simple-minded stereotype of a black slave. Now, Jim Crow was not a real person. He was a caricature who Rice used as his stage persona. Historians note that this image of black slaves would remain ingrained in white minds all over the nation for decades to come. But throughout the late 19th century, the name Jim Crow would take on a whole new meaning. As part of the compromise that decided the election of 1876, Federal troops pulled out of the former Confederate states, granting them more freedom to govern themselves. As a result, a new wave of laws would sweep the southern United States. The one thing they had in common was that they were all designed to separate black people from white people. Everyone could use public transportation, but they had to use it separately. Everyone could get an education, but would have to attend separate schools. Jim Crow was no longer just a fictional stage character, but a symbol of how African Americans were seen and treated. And these laws became known as Jim Crow laws. They were based on false negative stereotypes that would divide the races and the country yet again. But there was still one branch of government that could have nipped the rise of Jim Crow laws in the bud. Without the military station to ensure racial equality, it came down to the nine justices of the Supreme Court to declare that separating the races violated the Fourteenth Amendment to the US Constitution. The Supreme Court would have two opportunities to stop racial segregation before it got out of hand. Those cases would ultimately be decided by a vote of eight to one and seven to one, respectively. This episode is about the one. This episode is about the great dissenter of the Supreme Court.

SPEAKER_02 3:03

But he did legitimate.

SPEAKER_03 4:00

As happens to many of us from time to time, he had no idea how to put his thoughts on paper. The subject was Congress's latest attempt to address civil rights. Thanks to the Radical Republicans, several different Civil Rights Acts had been passed in the aftermath of the Civil War. The 1866 Act was the big one, and its language was explicitly included in the Fourteenth Amendment. But just before he died, Charles Sumner had tried to pass legislation that addressed discrimination by private parties. He wanted to make sure that black citizens would be treated equally in public accommodations. So basically, the law would require that in addition to states not being able to discriminate, private innkeepers and hotel owners would have to allow any citizen, black or white, to stay in their establishments. Congress ended up passing that legislation just after Senator Sumner passed away. And so it was officially illegal for businesses like hotels and theaters to refuse to serve people based on race. But there was one big problem with what became known as the Civil Rights Act of 1875. The truth was that before the Civil War, federal power over the states was pretty much at a bare minimum. The only reason the 1866 Act worked was because enough states had ratified the 14th Amendment that strictly and constitutionally guaranteed equal protection. But the 14th Amendment still said nothing about private parties. Everyone understood that states could no longer discriminate, but there was still no language in the Constitution that gave the Federal Congress the power to tell private businesses who they had to serve. Now, meanwhile, the 15 years between 1860 to 1875 had seen some dramatic changes to their country, especially to Southern society. Southern states had gone from having legal slavery to joining the Confederacy to abolishing slavery to being told that they had to give citizenship and equal protection of the laws for all former slaves, to enfranchising black voters, electing black political leaders, and finally to being told that all of their private citizens had to serve people of all races. Even within the Supreme Court, things were changing. John Rock had become the first African American eligible to argue a case to the Supreme Court on the very day that Abraham Lincoln had signed the 13th Amendment abolishing slavery. But John Rock died before he ever got to argue one. But then in 1880, Samuel Lowry would go one step further and became the first African American to walk into the Supreme Court Chamber and argue a case in front of the nine justices. Meanwhile, that same year, Rutherford Hayes' first and only term as president of the United States had come to an end. Despite how dramatic the prior election had been, Republicans managed to keep the presidency in 1880 with the election of James Garfield. But tragically, James Garfield was murdered only six months into his presidency, becoming the second president to be assassinated less than 20 years after Abraham Lincoln had become the first. Chester Arthur would take over, and it was during his time as president when multiple lawsuits were filed by African American plaintiffs against various theaters, hotels, and transportation companies that refused to serve them in violation of the Civil Rights Act of 1875. So the court decided to consolidate all these cases, and creatively, they called them the civil rights cases. The decision would have a lot of consequences for the nation. Today, in the 21st century, state and federal laws together govern private parties. We often take it for granted now that we expect private businesses to serve everyone. Now, don't get me wrong, discrimination lawsuits are still filed all the time. But today the question is usually whether or not discrimination took place. For example, if someone says they were fired because of their race, the inquiry is to whether or not that's true. But in the 1880s, there was no question about whether discrimination took place. The question was whether the government could do anything about it. If the 1875 Act was going to stand, then it was pretty clear that the black plaintiffs would win. But of course, if the act were declared unconstitutional, then the plaintiffs would all lose. The court, meanwhile, had recently ruled in racial justice's favor by striking down West Virginia's constitutional provision that excluded black men from juries. But that case had involved the state government. Private companies, private theaters, and private hotels were something different entirely. So while deliberating over the civil rights cases, the Supreme Court examined the language of the Fourteenth Amendment to assess whether it gave Congress the power to pass the 1875 Act. The final vote was nearly unanimous, and the person who wrote the majority opinion was Joseph Bradley. If you recall, Justice Bradley was the justice that single-handedly decided the outcome of the 1876 election. He was a Republican and sided with the Republicans after Justice Davis resigned from the Supreme Court to become a Democratic senator. Bradley looked at the 14th Amendment and concluded that there was nothing in there that mentioned private parties. Black Americans still had to be given equal protection of the laws from the state, but that didn't mean that every business owner had to put aside their own personal beliefs and serve people they didn't want to. Justice Bradley was joined by every other justice. Samuel Miller, Stephen Field, William Woods, Stanley Matthews, Horace Gray, Samuel Blatchford, and Chief Justice Morrison Waite. All of them. Except for one. Which brings us to exactly why Justice John Marshall Harlan had writer's book. He was outnumbered, no question about it. The civil rights cases were decided 8-1. So what was the point of fighting a losing battle? Dissents are rarely fun to read and probably often less fun to write. You not only have to come to terms with the fact that your side lost, but you have to write an opinion explaining your thoughts as to why your side should have won. A dissenting justice doesn't always write an opinion, and you might ask why any of them do it. What's the point of reading something that isn't the law? But the truth is that every once in a while, a dissent can carry great importance in the chapters of history. Dissents, especially in close cases, can serve as tools for later generations. In season one, when we talked about homosexual rights, the Supreme Court overturned a case that had upheld sodomy laws. What always helps a lawyer is when a dissenting justice provides you with the argument you need. It may not be binding precedent like a majority opinion is, but sometimes it can be a persuasive blueprint that becomes a foundation for a legal argument generations later. All this to say that there was a point in writing a dissent. But John Marshall Harlan didn't know what to write. And he had no other justice to bounce ideas off of because they had all voted to strike down the 1875 Civil Rights Act. It was at the height of this frustration that his wife gave him a pep talk. Her name was Melvina Harlan, and on that day in 1883, she would give her husband something that he thought he had lost. A pen. Well, it was more of an ink stand. But not just any ink stand. It was the ink stand that former Chief Justice Tawny had used to write the infamous case of Dred Scott versus Sanford. Melvita Harlan returned the ink stand that she had once hidden away to give her husband the push he needed. Its last owner had been responsible for a lot of pain. And it was up to Justice Harlan to do some good with it. At that moment, Justice Harlan took the ink stand, dipped his quill into it, and began to write. He wrote and wrote and wrote. By the end, he had over 30 pages of a lone descent to stand up for what he saw as wrong. Justice Harlan looked beyond whether the 14th Amendment says anything about private parties. He looked at the purpose of the Reconstruction Amendments. It was clear that they were designed to ensure that every citizen is treated equally before the law. That had to include public accommodation and general participation in society. Here is a reading of Melvina Harlan's personal memoirs, where she describes what it was like to read her husband's dissenting opinion.

SPEAKER_00 14:04

It was, I think, a bit of poetic justice that the small ink stand in which Tani's pen had dipped when he wrote that famous or rather infamous sentence in which he said that a black man had no rights which a white man was bound to respect should have furnished the ink for a decision in which the black man's claim to equal civil rights was as powerfully and even passionately asserted as it was in my husband's dissenting opinion in the famous civil rights case.

SPEAKER_03 14:32

It was a very powerful dissent, but it would not be just as Harlan's greatest one. Because just over a decade later, the concept of equal protection came under attack again. And he would have to dust off another inkstand when the court took on the question about the constitutionality of state-mandated segregation by the 1890s, many states, including the state of Louisiana, had begun testing a new form of discrimination. Well, it wasn't that new. During the years of the South had slavery, many northern states, known for their abolitionist viewpoints, nonetheless would segregate their citizens by race. But most of those states had repealed their segregation laws by then, although the same could not be said for their Southern counterparts. In fact, Southern state legislatures made sure that segregation would make up the fabric of American society. That's why many civil rights activists found that the momentum had turned against racial equality. They knew that before all of this spiraled out of control, before generations of black children would attend separate schools, drink from separate water fountains, and live in separate neighborhoods, someone had to do something about it. The Fourteenth Amendment had promised the equal protection of the races. But that's not what was happening. These activists argue that state laws separating by race could not possibly be compatible with the Constitution after the Civil War. After all, that was what the war was for, wasn't it? Charles Sumner would have said so, and so did the Louisiana Comité de Citoyens, aka the Louisiana Committee of Citizens. The committee decided to take matters into its own hands by having segregation declared unconstitutional before it got out of hand. But as always, they would need a specific case to be able to bring a claim to the Supreme Court. And the clearest way was if someone was arrested for violating the law. But they had to be very deliberate about who it was going to be. They landed on a man named Homer Plessy, who by all accounts seemed like a white man. He was in fact seven-eighths white, but his paternal grandmother was a black woman from Haiti. And by law, even though he was mostly white, Plessy was classified as black. So, strictly speaking, he had to sit in the blacks-only car. So he and the committee came up with a plan. On June 7, 1892, Homer Plessy would buy a first-class ticket and board a whites-only car. He would then reveal himself as a black man to an officer. This part of the plan went off without a hitch. In fact, the railroad company and even the officer were all in on the plan. It might be a little surprising to know that a lot of businesses at the time were actually quite opposed to segregation. For the railroad company, it meant having to buy extra rail cars. Imagine being required to only sell seats to one race or another. Not exactly good for business. So when the officer asked Plessy to vacate the whites-only car and he refused, Plessy was removed from the train and arrested. He was later convicted and fined $25 by a judge named John Howard Ferguson. Now, the Committee of Citizens had a conviction that they could appeal and hopefully get the entire segregation law struck down as unconstitutional. Plessy and the committee did not find much success in the Louisiana courts. They asked for Judge Ferguson's conviction to be overturned, but to no avail. So perhaps inevitably, the committee appealed to the U.S. Supreme Court in what is now remembered as a landmark case of Plessy versus Ferguson. On April 13th, 1896, the Supreme Court heard oral arguments in the case. Plessy was represented by a man with one of the most 19th-century names you've ever heard. Albion Winniger Tourget. Now Tourget was a radical Republican. He had also fought for the Union Army during the Civil War. Albion Tourget walked into the old Senate chamber of the U.S. Capitol building, because the current Supreme Court building did not exist yet, with one purpose. To end segregation as it was beginning. His argument was simple. It was clear that all these laws stemmed from the bigoted statement that whites were superior to blacks and should live separately from them. The 13th Amendment had abolished slavery, and with it the sentiment that any race was better than another. The Equal Protection Clause of the Fourteenth Amendment said it explicitly. States cannot deny the equal protection of the laws. A black man has an equal right to sit in any train compartment as a white man. Now today that sounds like a slam dunk legal argument. The idea of making any laws that group people based on race is pretty universally condemned in modern society. From a legal standpoint, equal protection of the laws obviously means that you can't exclude a certain race from education, transportation, and housing. But in the years that had passed since the civil rights cases, segregationists had found their ideal workaround. Attorneys Milton Joseph Cunningham and Alexander Porter Morse represented Judge Ferguson's side, and were there to argue why, despite the Fourteenth Amendment, separating based on race was perfectly acceptable. Because where does it say anything about separating in the Equal Protection Clause? As far as Cunningham and Morse were concerned, as long as African Americans had equal access to things like school and public transportation, then why can't they access those things separately? And so, the concept of separate but equal was argued to the nine justice of the Supreme Court. Could the races still be treated equally if they were separated? Torget said no. It may start with separating, but where does it end? By the end of that April afternoon, the case was out of Tourget's hands and into the hands of John Marshall Harlan and his colleagues. The justices deliberated for a month. Now, the years since the civil rights cases had been quite volatile politically. So that meant that the court in Plessy was pretty diverse in terms of political party. John Marshall Harlan, as you know, was nominated by Rutherford Hayes. Gover Cleveland had become the first Democrat to win the presidency since the Civil War, and he nominated Chief Justice Melville Fuller, Associate Justice Edward Douglas White, and as you might recall from season one, a pro-business lawyer named Rufus Peckham. Meanwhile, Benjamin Harrison would nominate Justices Henry Brown, George Shearis Jr., and David Brewer. Chester Arthur chosen Horace Gray, James Garfield had chosen Stanley Matthews, and Ulysses S. Grant had selected Joseph Bradley, the guy who wrote the majority opinion in the civil rights cases. Finally, that left Steven Johnson Field, who was the only one of Lincoln's nominees left on the court, even though he was a California Democrat. All in all, that makes nine justices nominated at nine very different times by six very different presidents. Although most were Republican and only Justice White came from a former Confederate state, it seems likely that an opinion on such a matter would be very polarizing. But as the justices deliberated, tragedy struck one of them. Justice Brewer's daughter died unexpectedly, so he went home and did not take part in the court's final decision. History would not put Justice Brewer's name on the court's opinion, and at least in hindsight, he would probably prefer it that way. So eight justices were left to decide whether segregation was constitutional. Since the Supreme Court tends to be very split on controversial cases, you might have expected that the final vote was five to three or even four to four. But it wasn't. A total of seven justices agreed with each other, and writing on behalf of all of them was Justice Brown. The court's decisive majority voted in favor of Judge Ferguson. They said that just because the races were separated doesn't mean that they aren't equal. And so, in perhaps the most consequential decision in its history, the Supreme Court upheld Jim Crow laws all over the United States as a constitutional way to handle race relations. From then on, if states wished, they could treat black people as separate but equal. They specifically rejected the argument that African Americans were being treated unfairly. In fact, Justice Brown said that if African Americans feel that separating them from whites makes them inferior, it's not because of the law, but only because they choose to see it that way. Here is how Justice Brown phrased it.

SPEAKER_01 25:19

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 be 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.

SPEAKER_03 25:45

It's hard to imagine what the country would look like today if the justices had voted the other way. In the late 19th century, we were still only building the foundations of our education system. What if black children and white children had been integrated since the beginning? Would we still have race inequality today? Would we even need things like affirmative action? Could we have avoided the violence that continues to this day? Ultimately, only one justice saw the court's decision as a monumental mistake. And that justice was, once again, John Marshall Harlan. It wasn't the Abraham Lincoln appointee. It wasn't any of the other Republicans who had joined the Union. It wasn't any of Cleveland's choices, nor any of Harrison's. It was the former Kentucky slave owner who by 1896 stood alone defending Homer Plessy and condemning the institution of segregation. But what could he do? He was once again outvoted and once again tasked with writing his own sole descent. But what was the point? The battle was lost. Striking down the 1875 Civil Rights Act was peanuts compared to the effect this case would have on the nation. All states now had the green light to separate by race as much as they wanted and still be consistent with the Fourteenth Amendment and the Equal Protection Clause. But like he had done thirteen years earlier, Justice Harlan got to writing. If he chose his words well, then one day, long after he's gone from this earth, some attorney somewhere will read them and use them to undo the injustice that had befallen the nation. Now, as progressive as Harlan was for the time, it's worth mentioning that he had his own extremely outdated views on race. He even admitted that he thought rights were indeed superior in many ways, but Harlan repeatedly emphasized that no race can be superior under the law. Here is how he phrased it.

SPEAKER_02 28:07

But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. 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 law regards man as man and takes no account of his surroundings or of his color when his civil rights, as guaranteed by the Supreme Law of the Land, are involved. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.

SPEAKER_03 28:49

That may have seemed extreme at the time, but certainly today Harlan's prophecy would ring true. But as of 1896, Jim Crow laws were here to stay. After the court's decision in Plessy, the Equal Protection Clause only meant that states had to treat races equally, but they could still separate them. Most people know the myth about Pandora's box. Once Pandora opened the box, all of the world's evils poured out of it. In terms of Jim Crow, once the Louisiana law was declared constitutional, segregation became the norm in the southern United States. But what people tend to forget about the Pandora myth is that once all the evils had poured out, there was only one thing left in the box. Hope. In the case of Plessy vs. Ferguson, hope came in the form of an infant child. At the same moment that the justices of the Supreme Court handed down their now infamous decision, that infant child was sleeping just a few miles away in the nation's capital. He was about five months old when the Plessy case was being decided. But what no one, not even John Marshall Harlan, could have possibly foreseen was that this child would one day grow up to be the man who killed Jim Crow. Next time we'll discuss the life and work of Charles Hamilton Houston and his strategy for chipping away at the court's decision in Plessy versus Ferguson.