- [Kim] Long before Rosa Parks refused to move
to the back of the bus, Homer Plessy boarded a train car
in New Orleans to protest Jim Crow segregation laws.
Plessy was arrested and convicted in Louisiana,
but his test case for segregated public transportation
reached the Supreme Court in 1896.
This is Kim from Khan Academy.
And today, we're learning more about the landmark case,
Plessy versus Ferguson, which asks whether
separate but equal accommodations
for Black and White Americans
violated the 14th Amendment of the Constitution.
To learn more about this case, I spoke with two experts.
Jamal Greene is the Dwight Professor of Law
at Columbia Law School.
Earl Maltz is a Distinguished Professor of Law
at Rutgers Law School.
So Professor Greene, could you kind of set the stage
for us in this time period?
After the Civil War, what was the legal
and social status of former slaves?
- [Jamal] Well, of course, the Civil War ended in 1865.
And it was fought in large part over the institution
of chattel slavery, so slavery of, generally speaking,
Black or African American slaves.
And right at the end of the Civil War,
the 13th Amendment was passed.
And the 13th Amendment basically said that
there shouldn't be any slavery or involuntary servitude
in the United States.
So the institution of slavery itself had ended,
but the passage of the 13th Amendment did not mean
that former slaves had equal rights.
A number of the former states of the Confederacy,
the, generally speaking, Southern states,
passed a number of racially discriminatory laws
immediately after the end of slavery
that prevented Black Americans from participating
in civil society on equal terms with Whites.
For example, laws restricting the ability of Blacks
to enter into and enforce contracts,
restricting the ability of Blacks to own property,
to sit on juries, to vote, to testify in court,
and so forth.
So there were a number of openly discriminatory laws.
There were also laws that required Blacks to be employed
on pain of having their labor forced,
so ways of essentially re-instituting
the institution of slavery.
- [Kim] And these were known as the Black Codes.
- [Jamal] Those were known as the Black Codes, exactly.
- [Earl] In the Reconstruction period
between say the late 1860s and the mid 1870s,
there was a concerted effort by the federal government
to improve the social status
and political rights of African Americans.
In 1876, there was part of the settlement
of the presidential election of 1876,
the federal government drew back some.
But most of the so-called Redeemer movement
really took off in the 1890s.
I think 1891 is when the last real effort is made
by the federal government
to have a serious Voting Rights Act.
After that, the South is pretty much under control
of the people who sympathized with ex-Confederates.
- [Jamal] In both Northern and Southern states,
there was widespread racial segregation.
So there were laws that were basically codifying
long-existing social practices of segregated housing,
segregated schools, and segregated public conveyances
like steamships and rail cars.
But much of that changed in the years
immediately following the Civil War.
Congress passed a number of federal laws
that banned racial discrimination,
particularly in contracting and in housing.
Quite significantly, in addition to the actual federal laws
that Congress passed, the country passed
and ratified the 14th Amendment.
- [Kim] So I think one thing that is very hard
for me to understand and that I've seen students
struggle with is you have the passage of the 14th Amendment
and the 15th Amendment in 1868, 1870.
And these are supposed to guarantee equal protection
and citizenship and voting rights for African Americans,
specifically men in the 15th Amendment.
And then, you have Jim Crow.
So how did we get from this moment after the Civil War
where things really seem like they're looking up
in terms of African American citizenship
to the system of Jim Crow that's going to persist
into the 1960s and 70s.
- [Jamal] The Civil War did not end racism.
It simply ended slavery.
And so, we're still living in a racist society
in which residential and school segregation remained
both in Southern states and in Northern states
notwithstanding the Civil Rights Amendments.
And in Southern states, Reconstruction,
the process of trying to bring former slaves
fully into civil society, was enforced by the presence
of federal troops in Southern states
on the theory, the very well-founded theory,
that states that had just gone to war in order
to perpetuate the institution of slavery were not going
to willingly adopt equal rights for the former slaves
that they had just been holding in bondage.
And so, there was a federal military occupation
of a number of former Confederate states
for a good decade plus after the Civil War
really ending in 1877.
- [Earl] And at that point,
again through the Redeemer movement,
people who were the White power structure,
most of which had sympathized
with the Secessionist Movement,
the White power structure and its successors
took power back in the beginning and mid 1870s
in the Southern states.
And as part of their campaign,
they imposed the Jim Crow system.
- [Jamal] Slavery was not just about labor.
It was really a system of racial hierarchy.
And many in the United States remained committed
to that system even after bondage itself ended.
And if you don't have the political will
within the Northern states to enforce
the Reconstruction Amendments, you had really
a retrenchment of deep racial inequality
within the Southern states,
but not just within the Southern states,
but also within a number of Northern states as well.
- [Kim] So let's kind of dial into the case
Plessy versus Ferguson.
Who was Homer Plessy?
And why did he take issue with segregation?
- [Earl] Well the law that was at issue
required what was in theory separate but equal
accommodation of African Americans and Whites
on public transportation.
Homer Plessy objected to it because A,
the facilities weren't really equal.
And he objected to it in part because
he was classified as Black, but also in general
because he thought that that was demeaning.
Obviously, a majority of members of the Supreme Court
believed that the Southern states should have
at least some leeway and to establish their
the system of racial segregation.
- [Jamal] And so, Plessy was in league with the railroad
and with the civil rights organization
that recruited him to set up a case.
So he agreed with the railroad to board
the White area of the railway car
on a car going from New Orleans to a town called Covington.
And it was agreed that the railway would ask him to leave.
He would refuse.
And then, he would be arrested.
And once he was arrested, that would enable him
to challenge the law under which he was arrested
under the Constitution.
The railroads didn't like this law.
They didn't like this law because they didn't want
to be subject to fines or liability
for not properly maintaining separate cars.
It was really up to the conductors to make sure
that separate cars were maintained.
And the conductors themselves could be fined
by the state for not doing so.
And they could also be fined by passengers
for mistakenly putting someone in the wrong car.
So the railroads didn't really wanna be bothered
with this kind of law.
And so, this particular railroad, Eastern Railway,
was willing to agree to set up a situation
to challenge the law.
- [Kim] So Homer Plessy, he gets on this train
and he challenges the statute.
I believe he sat in a Whites-only car
and announced that he was African American.
And then, he was arrested.
So what happened next?
- [Jamal] He's arrested.
And then, he is eventually charged with a crime,
with a violation of the statute.
And there's a fine associated with violating the state law.
And his lawyers bring a claim
that the law violates the Federal Constitution.
So initially, it goes through the state courts of Louisiana.
And then eventually, they rule against Homer Plessy
in favor of the law.
And then, his lawyers appealed the case
to the U.S. Supreme Court.
- [Kim] So how did the court rule?
- [Jamal] In the years leading up to the case,
the lawyers for Homer Plessy were quite concerned
about the composition of the court
because they weren't sure if they could count
five votes in favor of Black civil rights.
Because none of the justices on the court
were considered to be particularly friends
of Black Americans.
- [Earl] In the civil rights cases in 1883,
the court had already held that Congress lacked authority
to prohibit segregation in public accommodations,
which meant they viewed public accommodations as something
fairly private rather than a civil right,
a quasi-governmental right or a quasi-public right.
And that's one of the big distinctions
between the majority and the dissent in both
the civil rights cases and in Plessy versus Ferguson.
The court ruled that in fact that so long as the state
of Louisiana maintained separate but equal facilities,
they could do that, that that was not prohibited
by the 14th Amendment.
- [Jamal] The Supreme Court in 1896 rules seven to one
that the Separate Car Act is constitutional.
So a state is allowed to segregate its public conveyances,
including rail cars, by race.
The court denies that the Separate Car Act violates
the 14th Amendment to the Constitution.
What the court basically says is:
look, the law says the railway cars have to be equal,
even if they're separate.
And all the 14th Amendment requires is
that basic equality in civil rights.
- [Earl] John Marshall Harlan, of course,
dissented from that.
I think that it's important to understand
what was the actual nature of Harlan's dissent
rather than the way that it is actually portrayed.
Harlan is famous talking about the colorblind Constitution,
but in fact, what he says is:
"With respect to civil rights common to all citizens,"
I don't have the exact language before me,
"that the Constitution which required to be colorblind."
So one of the big distinctions between the majority
and the dissent is that Harlan does in fact
believe that the right to use public transportation
counted as a civil right, and therefore,
was protected against segregation by Section 1
of the 14th Amendment.
I wanna make that point because it's pretty clear
that Harlan believed, for example, that maintenance
of segregated schools would be constitutional.
And it's also true that Harlan voted for
to say that miscegenation laws were constitutional.
- [Jamal] The dissenting judge,
Justice Harlan himself a former supporter of slavery,
who changed his views and eventually became known
as a champion of Black civil rights.
So Justice Harlan, the lone dissenter,
one of the only Southern judges on the court.
But the others were basically Northern,
both Republican and Democrat.
They didn't have strong views about race.
They didn't have unusually strong views about race
for their time.
And they maintained this distinction
between social and civil rights.
It's important to understand in trying to understand
the context of Plessy versus Ferguson
that the Supreme Court used to distinguish
between what it called civil rights
and what it called social rights.
Civil rights were basically rights to participate
in civil society, and included rights like the right
to enter into contracts, the right to buy property,
the right to testify in court.
The court understood social rights as something
very different from that, which is really the right
to do all of those things in the company
of people of a different race.
- [Kim] That's fascinating.
So what was the effect of this ruling
in Plessy versus Ferguson?
- [Earl] There are two ways that you could look at it.
That until 1954,
the effect of the ruling
was to say that the state governments were allowed
to segregate their citizenry on the basis of race.
That's one way you could look at it.
Now one of the interesting questions is
how much difference it would have made
given the sort of culture of the Southern states
even if the court had held that it was unconstitutional
for the state to formally require segregation
among the races.
That is, that there were a lot of informal pressures
which would have pushed toward segregation
even if the court had said that
the statute was unconstitutional.
But we'll never know that.
So in other words, the question in Plessy
is not whether the federal government
was going to mandate segregation,
but rather whether the federal government
was simply going to leave the states and their citizenry
to their own devices in determining whether to segregate
their public transportation and some other thing.
- [Kim] So this concept of separate but equal
is I think the most important thing that comes out
of Plessy versus Ferguson, and then later will be
at issue in the 20th century.
So was separate ever equal in theory or in practice?
- [Jamal] It was very clear at the time.
And Justice Harlan says so in his dissenting opinion
in Plessy that the practice of separating railway cars
or any number of other public accommodations by race
was not designed for the comfort of Black Americans.
It was designed in order to maintain
their social inferiority through legal institutions.
So once you no longer have the institution of slavery,
there was a felt need among many in the South
to maintain the system of social relations
that slavery represented.
And that's what Jim Crow was all about.
And everyone knew that's what Jim Crow was all about.
So Jim Crow was really kind of in its infancy
when Plessy versus Ferguson was decided.
Laws that prevented Blacks from voting
through a number of literacy requirements
and property requirements
and good character requirements and so forth,
those kinds of laws were very much in their infancy
at the time Plessy versus Ferguson was decided.
And so, the whole system of segregation
is really revving up in the 1890s.
And the court just gives it carte blanche
to continue after that.
And it's important to remember that as of the 1890s,
the Supreme Court had not admitted to ever having
reversed one of its own decisions.
Whereas your Plessy case was quite clear about this.
The assumption was that once the court ruled,
it was going to be an awfully long time
before you could get the court to reverse itself.
And that's in fact what happened.
So the court does not reverse Plessy versus Ferguson
until Brown versus Board of Education in 1954.
And so, you had an almost 60-year period
in which practices of institutionalized segregation
had the blessing of the Supreme Court.
- [Kim] So we've learned that in Plessy versus Ferguson,
the Supreme Court took a narrow view
of the Equal Protection Clause,
ruling that separate but equal accommodations
for White and Black Americans did not violate
the 14th Amendment.
Earl Maltz suggests that it's difficult
to tell if a different outcome in Plessy versus Ferguson
would have made much difference in the actions
of Southern states if there was no political will
to enforce integration anyway.
Jamal Greene, by contrast, reminds us that segregation
was just getting started at the time of the Plessy case.
And this ruling by the court legitimized Jim Crow laws
that would continue to spread for nearly 60 years.
To learn more about Plessy versus Ferguson,
check out the National Constitution Center's
Interactive Constitution in Khan Academy's resources
on U.S. government and history.