The Road to 'Separate But Equal'

Negro Expulsion from Railway Car

Library of Congress

The Road to “Separate But Equal”:
The Supreme Court and the Fourteenth Amendment through Plessy v. Ferguson

By Eleanor Jones
Written for the Brown v. Board of Education National Historic Park as part of an HI-397-X: Internship at Historical Agencies Course with Dr. Kim Morse at Washburn University
September-October 2022

Setting the Scene

From 1861 through 1865, one of the most important wars in American history took place. The United States of America and the Confederate States of America fought over a number of issues. The main conflict concerned slavery and states’ rights. The northern states’ Union armies won the war, and the former Confederate states rejoined the U.S. The now reunified states set about to continue what President Abraham Lincoln started: abolishing slavery.
In 1865, the United States approved the Thirteenth Amendment to the Constitution. They added the Fourteenth Amendment in 1868 and the Fifteenth in 1870. Together, these three amendments are known as the Reconstruction Amendments. On paper, they greatly expanded the civil rights enjoyed by those formerly enslaved. Such rights included the right to be free and the right to equal protection before the law. The Fourteenth Amendment contains many of the key elements of our modern understanding of civil rights. The majority of these elements are in Section 1 of the amendment.

• Citizenship Clause – All people born or naturalized in the United States are citizens of the United States. These people have every right belonging to citizens. (Naturalization is a way in which people born elsewhere can become citizens of a country.)
• Privileges or Immunities Clause – States cannot make laws that take away the fundamental rights enjoyed by all people.
• Due Process Clause – States cannot take away a person’s fundamental rights without first following the necessary and proper legal steps.
• Equal Protection Clause – States must treat all people within their legal systems the same way that they treat other individuals in the same or similar situation.

Despite what these amendments said, the government has not always followed them as intended. The rights stated in the Fourteenth Amendment have faced countless challenges in the court system. Among the most well-known of these challenges was the case of Plessy v. Ferguson. In 1896 the Supreme Court ruled in Plessy v. Ferguson that the Constitution allowed for segregation, as long as it was “separate but equal.” But why did the Supreme Court make this decision? To find the answer, one must first look at who were the members of the court at the time and the court’s past rulings on similar issues.

A Brief Overview of SCOTUS Rulings on the Fourteenth Amendment Prior to Plessy

This section is a quick look at a few Supreme Court cases that addressed the Fourteenth Amendment before Plessy v. Ferguson.
The Slaughterhouse Cases (1872)
Background. Louisiana passed a law making the Crescent City Live Stock Landing and Slaughter House Company a monopoly in New Orleans’ slaughterhouse industry. A handful of workers sued the state.

The Issue. 1) Can a state government create a monopoly? 2) Did the creation of these monopolies violate the Thirteenth or Fourteenth Amendments?

The Ruling. 1) Yes, a state government can create monopolies. A state can do so using what is called “police power.” Police power allows states have sole authority over laws regarding local health, safety, and business. 2a) No, state creation of monopolies did not violate the Thirteenth Amendment. While ‘servitude’ can take many forms, the Thirteenth Amendment only outlawed race-based slavery. 2b) No, state creation of monopolies did not violate the Fourteenth Amendment. There is a legal difference between citizens of the United States and citizens of a particular state like Louisiana. The Fourteenth Amendment applied only to citizens of the United States. Congress lacked the authority to address the claimed violations. The Fourteenth Amendment was not applicable to this case.

Notable Dissent. Four members of the Supreme Court disagreed with the majority’s ruling. They argued that several parts of Louisiana’s law did not fall under police power. They also maintained that the Thirteenth Amendment outlawed any and all forms of involuntary servitude, including monopolies. Monopolies create a form of slavery by limiting workers’ freedom to pick who they work for. Finally, the dissenters believed that the Fourteenth Amendment protected against violations by states as well as federal violations.

Why Does It Matter? The majority ruling took on a limited view of the Reconstruction Amendments and a broad view of police power. They ruled that the Fourteenth Amendment does not apply to the actions of state governments. The majority also said that the state has broad authority under its right to exercise police power.

Hall v. DeCuir (1877)

Background. In 1869, Louisiana passed a law prohibiting racial segregation on common carriers. Common carriers are individuals or corporations that transport goods and/or people for any member of the public who can pay the fee. In 1872, Josephine DeCuir bought a ticket for the steamboat Governor Allen. She tried to enter a whites only cabin. The captain refused to let her in as she was black. DeCuir sued the captain and won in the lower courts. The captain’s estate challenged the ruling.

The Issue. Did a state law banning racial segregation on common carriers violate the Constitution?

The Ruling. Yes. The Commerce Clause of the Constitution gave Congress the exclusive right to control interstate commerce. Common carriers like steamboats did business in multiple states and were regulated by national laws on interstate commerce. The state of Louisiana could not pass laws affecting interstate commerce without violating the Commerce Clause.

Notable Dissent. None. This ruling was unanimous.

Why Does It Matter? This ruling limited a state’s power over public transportation that passes through its borders.

Ex Parte Virginia (1879)

Background. In 1878, Pittsylvania county judge J.D. Coles was in charge of selecting the pool of possible jurors for the year. Not a single man selected was a man of color. Coles was arrested for violating the Civil Rights Act of 1875. This federal law prohibited the exclusion of any citizen from jury duty because of his race. Coles challenged his arrest in the courts.

The Issue. Did Congress have the authority to pass the Civil Rights Act of 1875?

The Ruling. Yes. The Fourteenth Amendment added several new rights to the Constitution. One of these rights was equal protection before the law, regardless of one’s race. This amendment was also intended to limit state power and expand federal power. The Civil Rights Act of 1875 fell within the congressional authority granted by the Fourteenth Amendment.

Notable Dissent. Justices Stephen J. Field and Nathan Clifford disagreed with the majority. They argued that jury duty was not a right of citizens of the United States. If it was, then women and children who are citizens should also be allowed to serve on juries. Instead, jury duty is a right of citizens of the states. Therefore, Congress lacked the authority to pass a law controlling jury duty.

Why Does It Matter? The majority ruling upheld the Congress’s power to pass the Civil Rights Act of 1875.

Strauder v. West Virginia (1880)

Background. Taylor Strauder, a black man, went on trial for a crime in 1874. There were no black men on his jury. West Virginia law stated that only white men could serve on the jury in that state. Strauder sued the state for violating his constitutional right to equal protection before the law.

The Issue. Did laws excluding black men from the jury pool violate the Fourteenth Amendment?

The Ruling. Yes. One element of the Fourteenth Amendment’s Equal Protection Clause was the right to be tried by a jury of one’s peers. States could limit jury pools in some ways but race could not be the limiting factor. Otherwise, such discrimination would make the white and black races unequal before the law.

Notable Dissent. Justices Stephen Field and Nathan Clifford renewed their dissents from the case of Ex Parte Virginia (1879). Jury duty is not a right of citizens of the United States and cannot be protected by the federal government. Only states have the power to control the jury pool within their borders.

Why Does It Matter? The majority ruling reaffirmed the right of all races to be treated as equal by the law. The majority also declared jury duty as an essential right of U.S. citizens.

The Civil Rights Cases (1883)

Background. In five separate situations, a person of color was denied access to businesses. The businesses in question were two inns, two public theaters, and a train car. The individuals each sued for racial discrimination in violation of the Fourteenth Amendment. The Civil Rights Act of 1875 also outlawed this type of discrimination. The Supreme Court grouped these cases together for its ruling.

The Issue. Did the business owners’ denials of access because of one’s race violate the Fourteenth Amendment?

The Ruling. No. The Fourteenth Amendment protected against racial discrimination from the government. It did not protect against the private acts of individuals. For this reason, the Civil Rights Act of 1875 was actually unconstitutional. Congress could not control the actions of private individuals or businesses.

Notable Dissent. Justice John Harlan was the only one who disagreed with the majority. He believed that Congress did have the right to control the acts of individuals if their work was public in nature. If a business was said to be open to the public, then they had to accept all members of that public as customers. Or, at the very least, public businesses could not reject customers because of their race.

Why Does It Matter? The majority ruling effectively reversed the finding in Ex Parte Virginia. The Civil Rights Act of 1875 became illegal.

Yick Wo v. Hopkins (1886)

Background. The city of San Francisco passed an ordinance in 1880 requiring new permits for laundry owners. Of the city’s 320 laundries, 240 were run by Chinese owners and 80 were run by white American owners. The laundry owners applied for the new permit. All 80 white American launderers met the conditions and received permits. 150 Chinese launderers met the conditions but did not receive permits. Two of the Chinese launderers, Yick Wo and Wo Lee, sued the city sheriff for racial discrimination. Sheriff Hopkins denied the accusations. He claimed that he was simply exercising the city’s police power.

The Issue. 1) Were non-citizens protected by the U.S. Constitution? 2) Did Hopkins’ actions fall within the limits of police power? 3) Did Hopkins’ actions violate the Fourteenth Amendment?

The Ruling. 1) Yes, the Constitution guaranteed some rights to non-citizens. As the Fourteenth Amendment said, “Nor shall any State deprive any person” of their equal protection under the law. 2) No, Hopkins’ actions were not police power. His enforcement of the city ordinance was not based on a set of impartial rules. Both the Americans and the Chinese launderers met the conditions to receive a permit. It was only due to Hopkins’ own arbitrary whims that the Chinese launderers were rejected. 3) Yes, Hopkins’ actions treated Americans and Chinese as separate and unequal groups before the law. This was a violation of the Fourteenth Amendment’s Equal Protection Clause.

Notable Dissent. None. This ruling was unanimous.

Why Does It Matter? The majority ruling expanded the protections of the Constitution to include non-citizens. At a time when the Chinese were excluded from citizenship, the Supreme Court asserted that even foreign nationals had certain rights that no government could violate. The ruling also limited what was considered police power and affirmed the illegality of racial discrimination by the government.

Louisville, New Orleans & Texas Railway Company v. Mississippi (1890)

Background. In 1882, the state of Mississippi passed a law requiring railroad trains to have separate cars for white and colored passengers. The Louisville, New Orleans and Texas Railway Company did not have segregated passenger cars while passing through the state. Mississippi sued the company, and the lower courts ruled in the state’s favor. The railroad company challenged the rulings.

The Issue. Was a state law requiring racial segregation on railroad trains constitutional?

The Ruling. Yes. Although state laws affecting common carriers such as railroad trains normally violated the Commerce Clause, it was not so in this case. The Mississippi law only affected railroad transportation within the state’s borders. It did not try to control interstate commerce.

Notable Dissent. Justices John Harlan and Joseph Bradley disagreed with the majority. They argued that the Mississippi law did affect interstate commerce and thus violated the Commerce Clause. Justice Harlan also asked how the Louisiana law from Hall v. DeCuir was an unconstitutional violation of the Commerce Clause while this Mississippi law was not.

Why Does It Matter? The majority ruling reversed the decision in Hall v. DeCuir. The court expanded states’ powers to control business conducted within their borders. Specifically, the ruling established a set of circumstances in which state-mandated racial segregation was constitutionally permissible. Each of these rulings contain elements that reappeared in Plessy v. Ferguson. The Slaughterhouse Cases and Yick Wo v. Hopkins addressed the limits of police power and Congress’s ability to regulate police power. Strauder v. West Virginia, Ex Parte Virginia, and the Civil Rights Cases asked if the Fourteenth Amendment had unlimited reach. Hall v. DeCuir and Louisville, New Orleans & Texas Ry. Co. v. Mississippi both touched directly on the issue of racial segregation on public transport, giving different answers.

The Supreme Court Justices of 1896

The people who make up the Supreme Court change over time. Justices who ruled one way on a particular case either die or retire. They may be replaced by a Justice who will rule differently on the same issue. Previous court rulings (called precedent) are important, but they do not always guarantee which way the current court will rule. Who were the nine people on the Supreme Court that decided Plessy v. Ferguson? There is perhaps no better person to start with than the author of the majority opinion.

Henry B. Brown served on the Supreme Court from 1891 to 1906. Born in Massachusetts, he was a Republican. He supported Abraham Lincoln during the Civil War. He began his career as Detroit’s U.S. deputy marshal. He was later promoted to assistant U.S. attorney for Michigan’s East District in 1863. Brown’s first job as a judge came in 1875. President Ulysses S. Grant appointed him to the district court of East Michigan. In December 1890, President Benjamin Harrison appointed Brown to the Supreme Court. He replaced Justice Samuel Miller. As a Justice, Brown tended to vote with the majority. He positioned himself as a conservative-leaning centrist.

Melville W. Fuller served on the Supreme Court from 1888 to 1910. He was the Chief Justice for the entirety of his court term. He was born in Maine and grew up in a Jacksonian Democrat household. He was active in the literary scene as a poet. He also became a member of the Chicago Literary Club in 1878. Fuller opposed slavery and vocally supported the Union Army. But he also disliked the divisive nature of the abolitionist movement. In 1888, President Grover Cleveland appointed Fuller directly to the position of Chief Justice. As Chief Justice, Fuller actively moderated the rest of the court. For example, he began the custom of having the Justices shake hands before meetings and before entering the courtroom. It was a way to promote harmony between the court’s members.

Stephen J. Field served on the Supreme Court from 1863 to 1897. He was the longest serving Justice at the time of Plessy v. Ferguson. He was born in Connecticut but headed west to California as a young adult. He was a local politician and had a heated feud with Judge William R. Turner. Field was a Democrat but strongly supported the Union. He also opposed lynching as a form of punishment. He was an elector in the Compromise of 1877 and voted for the Democrat party’s presidential candidate, Samuel J. Tilden. In 1863, President Lincoln appointed Field to the Supreme Court.As a Justice, Field believed that private businesses should only be regulated if they were eligible to receive public subsidies.

John Marshall Harlan served on the Supreme Court from 1877 to 1911. He was originally a member of the Whig party but joined the Republicans in 1867. He might have been influenced by his wife Malvina Shanklin. Malvina was strongly antislavery. President Rutherford B. Hayes appointed Harlan to the Supreme Court in 1877. Although he initially opposed both the Emancipation Proclamation and the Reconstruction Amendments, Justice Harlan’s judicial record reflects his later firm belief in a color-blind Constitution. He also believed that the Equal Protection Clause of the Fourteenth Amendment intended to ensure full equality under the law.

Horace Gray served on the Supreme Court from 1882 to 1902. He was born in Boston, Massachusetts to a wealthy merchant father. He attended law school and played a supporting role in establishing the case study method. He opposed slavery and wrote a critical review of Scott v. Sandford. This was the 1857 Supreme Court case which ruled that African Americans could not be U.S. citizens under the Constitution. In 1881, President Chester A. Arthur appointed Gray to the Supreme Court. Justice Gray viewed historical precedence as the most important factor in determining the law. He also believed that dissenting opinions weakened the court’s effectiveness.

David J. Brewer served on the Supreme Court from 1890 to 1910. His uncle was Justice Field. Brewer was born in Asia Minor but his family returned to the U.S. when he was two. He grew up in Connecticut and found his way to Kansas as a young adult in 1858. Brewer served on the Kansas Supreme Court from 1870 to 1884. One of his notable rulings from this court came in 1876’s Wright v. Noell. He found that women could be elected to a public office even though they could not vote.

President Harrison appointed Brewer to the United States Supreme Court in 1890. Justice Brewer asserted that the rights of individuals took priority over any attempts at limiting those rights. It did not matter whether these limits came from the government, from corporations, or from other individuals.He also opposed the public interest doctrine established by the Supreme Court in 1876 with Munn v. Illinois. This doctrine granted state governments the power to regulate private industries that affect the common good. Justice Brewer did not participate in Plessy v. Ferguson.

George Shiras, Jr. served on the Supreme Court from 1892 to 1903. He was born in Pennsylvania. He also had no experience as a judge or politician before President Harrison appointed him to the Supreme Court in 1892. Justice Shiras believed that the court’s decisions should be unanimous whenever possible. Though he participated in a wide range of legal subjects, he did not take the lead in any of them.

Edward Douglas White served on the Supreme Court from 1894 to 1921. He was born in Louisiana and strongly supported states’ rights. He fought for the Confederate Army during the Civil War. President Cleveland appointed White to the Supreme Court in 1894. He later became the first Associate Justice promoted to Chief Justice. In 1896, however, Justice White was still relatively new to the Supreme Court.

Rufus Peckham, Jr., served on the Supreme Court from 1896 to 1909. He was born in Albany, New York. He was active in Democrat politics yet maintained a reputation for judicial nonpartisanship. His appointment to the Supreme Court in December 1895 by President Cleveland went smoothly. Justice Peckham believed that the court’s role was to draw and police strict boundaries between the powers of state governments, the rights of individuals, and the authority of the federal government. He also largely withdrew from Democrat politics while on the Supreme Court.

This particular version of the Fuller Court held the bench from 1896 until the end of 1897 when the ailing Justice Field retired. Curiously, the Fuller Court ruled in a handful of Fourteenth Amendment cases beginning with Plessy v. Ferguson in May 1896.

Plessy v. Ferguson (1896)

Background. In 1890, Louisiana passed the Separate Car Act. This law required railway trains to have separate passenger cars for blacks and whites. These cars were supposed to be of equal quality. On June 8, 1892, a man named Homer Plessy bought a ticket for the East Louisiana Railway. He tried to sit in the white passenger car but the conductor refused access to him. Plessy was mixed race and therefore had to sit in the black passenger car. He did not move to his assigned seat so the police arrested him. He faced legal trial in the District Court of Orleans and was found guilty. Plessy believed that the Separate Car Act was unconstitutional so he challenged the court’s ruling. His case made it all the way to the Supreme Court of the United States in April 1896 as Plessy v. Ferguson. Ferguson referred to John H. Ferguson, the judge in Plessy’s first trial.

The Issue. Was a state law that required racial segregation on railroad trains constitutional?

The Ruling. The Supreme Court announced its decision in May of 1896. Seven of the eight participating justices sided with Ferguson and asserted that the Separate Car Act was constitutional. Justice Henry B. Brown wrote the majority opinion. The court decided that the law did not violate the Thirteenth Amendment. The mere suggestion of a legal difference between the races did not have any real effect on the legal equality of the races. The ruling found that this was especially true for differences that could not be hidden, such as the color of one’s skin. Such a legal difference in no way, shape, or form created a condition of slavery. The Supreme Court majority also disagreed with almost all of the claimed violations of the Fourteenth Amendment. Plessy’s side argued that one aspect of discrimination was the suggested inferiority of one group to another. The court responded that laws requiring the separation of races do not suggest any form of inferiority. Furthermore, Justice Brown added that the only reason segregation may imply inferiority was “solely because the colored race chooses to” believe it does. As the court made clear in Strauder v. West Virginia (1880), there was also a legal difference between political equality and other forms of equality. The court maintained that the Constitution only protected political equality. Racial segregation was not a matter of political equality so it was not protected by the Constitution. Next, the Supreme Court argued that states do have the power to require racial separation. States had long used their right to police power to enforce segregation in many areas, especially in schools. The court’s ruling in the Civil Rights Cases (1883) showed that segregation did not go against any of the rights or immunities in the Fourteenth Amendment. The ruling in Louisville, New Orleans & Texas Ry. Co. v. Mississippi (1890) also showed that train car segregation did not count as interstate commerce. So it was easy for the court to see that states could pass segregation laws as long as they only affected places inside the state. The East Louisiana Railway Line did not go beyond the borders of Louisiana. Thus, the state was entirely within its right to pass the Separate Car Act. However, the Supreme Court also wanted to limit the reach of police power. Justice Brown wrote that any state use of police power must be reasonable. By “reasonable,” he meant that the overall public benefit of police power must be greater than the harm it may cause any particular group of people. He listed San Francisco’s laundry law from Yick Wo v. Hopkins (1886) as an example of an unreasonable use of police power. But he highlighted Louisiana’s Separate Car Act as an example of a perfectly reasonable law. The public good from the law was maintaining peace between the races on trains. The law also made sure that people who did not want to share a car with members of the other race did not have to do so. The court’s majority argued that the only harm of the law was limiting people’s freedom to pick which car they sat in. In the court’s view, this harm did not outweigh the benefits.

Notable Dissent. Justice John Marshall Harlan was the only member of the Supreme Court who agreed with Homer Plessy. His opinion was based largely upon four factors.
The Separate Car Act did try to control interstate commerce. In previous cases, the Supreme Court ruled that all railroads counted as public highways. This label meant that only the national government had the power to make laws about railroads. This was a right which the Constitution specifically gave Congress and Congress alone. The state of Louisiana lacked the power to pass this law. The Separate Car Act interfered with the personal freedom of railroad passengers. In a free land, a white person may choose to sit next to a black person. It is their right to do so. No state or national government has the power to take away that freedom from its citizens. Laws requiring racial segregation meant that people were no longer free to choose where they want to sit. Reasonableness is not a good standard by which to judge a law. Justice Marshall asserted that governments either had the power to pass a law or they did not. Letting courts decide what was reasonable would mean that people’s personal opinions become important. However, the role of the court is to be an impartial judge and to make rulings based solely on the law. The United States Constitution is color-blind. By this, he meant that the color of one’s skin should never affect what rights and protections they have. Louisiana’s Separate Car Act required that train passengers be treated separately only because of their race. In Justice Marshall’s opinion, the Constitution did not allow racial discrimination like this.

The Aftermath of Plessy v. Ferguson

Why Does It Matter? The Supreme Court’s ruling in Plessy v. Ferguson was a landmark case in the fight for civil rights. It okayed many states’ efforts to continue discriminating against people of color even after the U.S. outlawed slavery. Overt racial discrimination also become fair game as long as states followed the “separate but equal” doctrine.

Where Do We Go From Here? It was not until nearly fifty-eight years to the day later that the Supreme Court reversed the “separate but equal” doctrine. In Brown v. Board of Education (1954), a different set of justices led by Chief Justice Earl Warren ruled that racial segregation in schools was not constitutional under any circumstances. Though the era of “separate but equal” may be officially over, that does not mean there are no remaining concerns.

In the area of schooling, for example, some question whether the end of racial segregation was enough. Are schools today actually equal? Do individual schools provide the same quality of education to all their students? Do schools across the country provide the same quality of education? Can schools in different places provide the same quality of education? Is equality even the right standard to use anymore?

Bibliography

Chicago Literary Club. “F.” Roll of Members. Accessed September 22, 2022. https://www.chilit.org/.

Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789-1995, 2nd ed. Foreword by Chief Justice William H. Rehnquist. Washington, D.C.: Congressional Quarterly, 1995.

Encyclopædia Britannica. “Lynching.” Britannica Kids. Accessed October 25, 2022. https://kids.britannica.com/students/article/lynching/632747.

Gray, Horace, and John Lowell. A Legal Review of the Case of Dred Scott, As Decided by the Supreme Court of the United States. Boston: Crosby, Nichols, and Company, 1857.

Hylton, J. Gordon. “The Judge Who Abstained in Plessy v. Ferguson: Justice David Brewer and the Problem of Race.” Mississippi Law Journal 61 (January 1991): 315. http://scholarship.law.marquette.edu/facpub/588.

Riley, Jim L. “Moderate Political Ideologies: Liberalism and Conservatism.” For HIST103: World History in the Early Modern and Modern Eras (1600-Present). Denver: Regis University, 1990. http://jim-riley.org/libcons.htm.