READING ONE

FROM EQUALITY TO JIM CROW

By Raphael Cassimere, Ph.D., and Caryn Bell, Ph.D.

Raphael Cassimere is a Professor of History at the University of New Orleans.

Caryn Bell is an Adjunct Professor of History at the University of New Orleans and author of Revolution, Romanticism, and the Afro-Creole Protest Tradition in Louisiana, 1718-1868 from Louisiana State University.

The legislation had split the African American community. Some, including Louisiana's former black Governor P.B.S. Pinchback, supported it as a realistic measure to assure first-class accommodations for black passengers, even if segregated from white passengers, since the trains were already segregated by custom. A number of prominent black New Orleanians, especially those who had been part of the old "free people of color" community before the civil war, vigorously opposed the measure, and when it passed, set out to have it overturned.

In fact, Plessy had been carefully selected by the Citizens Committee, first organized in 1891, in an effort to take the new law to court. The attorneys believed that a U.S. Supreme Court decision in 1883 expressly denied states the right to discriminate against persons on the basis of race, color or previous condition of servitude, although private operators could. As expected, Plessy was ordered arrested by the conductor, removed from the train, and charged with violating the law.

The Citizens Committee provided legal counsel. The lead lawyer was the crusading carpetbagger and Reconstruction novelist Albion Tourg‚e. In bold language the Plessy brief denounced the separate car act for establishing "an insidious distinction and discrimination between Citizens of the United States based on race which is obnoxious to the fundamental principles of National Citizenship..."

The notion that all Americans were national citizens was a new concept in American life, a direct result of a war for national preservation and the crusade it unleashed for black freedom. The Fourteenth Amendment extended the Bill of Rights to the citizens of the states and, thus, revolutionized the U.S. Constitution. By the same token the amendment expanded the role of the federal government, which was now empowered to protect equal citizenship rights against wrongful invasions The Citizens Committee was invoking this new understanding of citizenship--universal and equal--when it attacked the constitutionality of the act as a violation of "the privileges and immunities of Citizens of the United States and the rights secured by the 13th and 14th Amendments to the federal Constitution."

Orleans Parish Criminal Court Judge John H. Ferguson rejected Plessy's plea and upheld the constitutionality of the law. This was not a total surprise, and the Citizens Committee took an appeal to the Louisiana Supreme Court, which was now headed by Francis T. Nicholls, the former governor who had signed the bill into law. The state's highest Court affirmed the lower court's decision, and now the Citizens Committee proceeded to its ultimate objective, a hearing before the nation's high Court.

Reconstruction

It is essential to understand the prologue to the Plessy decision: Reconstruction and its aftermath. During the Civil War, many Northern whites were swept up in the moral fervor to end slavery. The crusade culminated in the enactment of not only the three great Reconstruction amendments (the 13th, 14th, and 15th amendments), but an array of civil rights bills aimed at absorbing black people into the American mainstream. The moral prophets of this long-standing quest for racial justice were black leaders such as the ex-slave Frederick Douglass, who warned that "slavery is not abolished until the black man has the ballot." But equally important were the philosophical forebears of the New Orleans Citizens Committee: the city's prewar "free people of color," a French language community of considerable wealth, achievement, and sophistication.

Black Creoles fought for freedom and the Union in the federal army. They founded the first daily black newspaper in America. They educated northern abolitionists and liberal congressman alike to the necessity of full citizenship for the ex-slaves. They desegregated one-third of the city's schools, the most far-reaching experiment in mixed schooling until the 1970s. They helped craft one of most racially egalitarian state constitutions in American history, banning racial discrimination in public education and public facilities; indeed, another century would pass before the United States government accomplished the same ends through the 1964 Civil Rights Act. The Citizen's Committee were heirs to this activist tradition. And the tragic dismantling of that egalitarian legacy represents one of the great reversals of human rights in the Western Hemisphere.

The retreat from racial equality began even before Radical Reconstruction was over. The first Republican governor, carpetbagger Henry C. Warmoth, elected largely with black support, curried favor with former Confederates by vetoing Civil Rights legislation. Northern Republicans, concerned that their new black allies were becoming political liabilities, quickly wearied of southern Republican requests for federal protection from racial terrorist groups like the Ku Klux Klan. After the disputed presidential election of 1876 between Rutherford B. Hayes and Samuel Tilden, and the subsequent "compromise," President Hayes swiftly withdrew the few remaining federal troops and appointed several Southern Democrats to key offices. Reconstruction ended with the triumph of the Old South.

Judicial Setbacks

The political retreat was mirrored in the federal judiciary. In 1876 the Supreme Court the Court dealt a disastrous blow to the citizenship rights of African American. In U.S. v. Reese the Court held that the 15th amendment did not guarantee any person the right to vote and that states alone could confer voting rights on individuals.

In U.S. v. Cruikshank the Court dismissed indictments against nine white rioters who had attacked a political gathering of black citizens in Colfax Parish, Louisiana, killing or wounding more than one hundred African Americans. The Court held that the fourteenth amendment proscribed only "state action," not crimes committed by "individuals."

By the 1880s the judicial retreat was in full swing. In 1883, in a group of cases referred to as the Civil Rights Cases, the high court ruled that the Civil Rights Act of 1875 was an excessive intrusion into the conduct among private individuals. Writing for the majority, Chief Justice Joseph Bradley, who had once interpreted civil rights enactments liberally, now declared that the black man must cease "to be the special favorite of the laws," and seek protection for his rights "in the ordinary modes by which other men's rights are protected."

Those "ordinary modes" of protection, however, proved to weak bulwarks against the resurgent racism sweeping over late 19th century America. Intellectual racism had been placed on the defensive by the universalist appeals of abolitionists and Radical Republicans. With the end of reconstruction, racism returned to mainstream respectability under the guise of Social Darwinism, the "survival-of-the-fittest" doctrine that rationalized social inequality.

Social Darwinism was tailor-made for laissez-faire capitalism. It offered a facile answer for why some classes of men consistently occupied society's lowest ranks: they were racially unfitted for survival's heartless struggle. American nationality had shriveled from the egalitarian universalism embodied in the Declaration of Independence and the Fourteenth Amendment to a narrow ethnic particularism.

Not surprisingly, these "permissions-to-hate," as the historian C. Vann Woodward has characterized the racial climate of pre-Plessy America, encouraged the white South to hasten its return to the past. Between 1877 and 1900, the number of African Americans murdered by white mobs doubled, often by means of sadistic torture. A new form of economic servitude--tenantry and sharecropping, enforced by the shackles of debt and poverty--spread across the countryside. The African American prison population skyrocketed and many black inmates were leased to private contractors under conditions resembling slavery.

The attack on black rights reached culmination in the disfranchisement campaign of the late 1880s and 1890s, when such subterfuges as "grandfather" clauses and literacy tests (later supplemented by the white primary) stripped blacks of the ballot. That same period saw southern statute books fill up with Jim Crow laws segregating not only railroads, steamboats, and schools, but libraries, restaurants, hospitals, toilets, drinking fountains, prisons, cemeteries, and opera houses. Southern extremists had thus proceeded, as one observer noted, "from an undiscriminating attack upon the Negro's ballot to a like attack upon his schools, his labor, his life. . . ."

So much for "the ordinary modes" of protection.

It was to stem this tide of violent political and social repression that black New Orleanians and their supporters initiated the Plessy suit in 1892 challenging segregation's constitutionality. In view of Southern and Northern realities, and earlier Supreme Court rulings, the prospect for a favorable outcome was anything but certain.

Even supporters of the Citizens Committee despaired that black New Orleanians were engaged in "a battle which was forlorn." African Americans themselves were abandoning politics in favor of the self-help accommodationism advocated by Booker T. Washington or the separatist nationalism championed by back-to-Africa emigrationist Marcus Garvey. The Citizens Committee's Afro-Creole leadership was practically alone in militantly defending the interracial ideal. Argued Rodolphe Lucien Desdunes, "It is more noble and dignified to fight, no matter what, than to show a passive attitude of resignation. Absolute submission augments the oppressor's power and creates doubts about the feelings of the oppressed...Liberty is won by continued resistance to tyranny."

The United States Supreme Court agreed to review the decision of the Louisiana high Court, and the case was argued in October 1895. Black Louisianians tried vainly to enlist support from other prominent African Americans leaders across the country. Albion Tourgee, a white veteran of the Reconstruction freedom struggle in North Carolina, ended up handling the appeal.

Tourgee argued that Louisiana's law violated both the 13th and 14th amendments by perpetuating distinctions "of a servile character, coincident with the institution of slavery." He scoffed at the pretense of equality and impartiality claimed for "separate but equal." "The object of such a law is simple to debase and distinguish against the inferior race . . . for the gratification and recognition of the sentiment of white superiority and white supremacy of right and power." He prophesied that the separate-but-equal doctrine, once given the stamp of constitutional legitimacy, would unleash a flood of similar discriminatory legislation. Of course he was right.

The Court's ruling on May 18, 1896 was written by a Massachusetts native and Michigan resident, Henry Billings Brown. The Majority essentially held that the separate car law met the test of "reasonableness," under which legislatures were "at liberty to act with reference to the established usages, customs, and traditions of the people. . ." And, he might have added, their prejudices.

The Plessy decision echoed the conventional wisdom that social status reflected the natural order of things and was beyond the reach of law. "If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically," wrote Justice Brown. "If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." This was a judicial gloss on Social Darwinism.

The sole dissenter in the case was one of President Hayes's 1877 Southern appointees, John Marshall Harlan, a former Kentucky slave holder and wartime Unionist. His had also been the lone dissent in the 1883 Civil Rights Cases. Harlan argued then that only the federal government could protect "those rights of freedom and American citizenship . . . "

In his Plessy dissent Harlan issued a ringing rebuke to those who argued that the United States was composed of a dominant and subordinate race. "Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens." Harlan closed his eloquent dissent with an ominous prediction of a future that evoked the past:

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... The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purpose which the people of the United States had in mind when they adopted the recent amendments of the constitution.