The truth is that no one involved in Plessy knew they were on a longer march to Brown, or that their case would become one of the most recognizable in history, or that the “sentence” that the Supreme Court handed down would take up less than a sentence — really, just three words — in the American mind. But, thanks to historians like Mack and especially Charles Lofgren (The Plessy Case: A Legal-Historical Interpretation), Brook Thomas (Plessy v. Ferguson: A Brief History With Documents), Keith Weldon Medley (We as Freemen: Plessy v. Ferguson) and Mark Elliot (Color Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson), whose works provided indispensable research for this article, we know that what is most amazing about Plessy’s backstory is how conscious its testers were of the false stereotypes undergirding Jim Crow and the just-as-false binary posed by its laws (“white” and “colored”) in real time, without any clear definition among the states of what “white” and “colored” actually meant, or how they were to be defined.
As Lofgren shows in his watershed account, the question was, did a man at the time of Plessy have to be one-fourth black to be considered “colored,” as was the case in Michigan, or one-sixteenth as in North Carolina, or one-eighth as in Georgia; or were such judgments better left to juries as in South Carolina or, better yet, to train conductors as in Louisiana? Whatever a jurisdiction’s rule, to men like Plessy, Tourgée and his legal associates — Louis Martinet, a Creole attorney and publisher of the New Orleans Crusader, and white attorney and former Confederate Army Pfc. James C. Walker — it was clear that a man’s race was so essential to his reputation that it approximated a property right. Take it away without due process, based on a train conductor’s casual and arbitrary scan, and you rob a man, “colored” or “white” (at the time, especially “white”), of something as valuable to him as his education, income or land.
They knew their climb was uphill; everywhere they turned, it seemed, new theories of racial distinction and separation were being constructed. While today we might call proponents of those theories “quacks,” they were regarded (for the most part) as leading scientists of their day — men with college degrees and titles who, even in those rare cases when they were sympathetic to black people and their rights, felt strongly that mixing too closely with whites would lead either to black extinction through a race war or dilution by way of absorption. Of course discerning minds like Tourgée saw through such theories, but, as Lofgren illustrates in a table summarizing a 1960 study by historian of anthropology George W. Stocking Jr., among 50 social scientists publishing journal articles in the years leading up to Plessy, 94 percent believed in the existence of “a racial hierarchy” and in “differences … between the mental traits (intelligence, temperament, etc.) of races.” (I’ll let you guess which race almost always came out on top.)
Reinforcing their views on race were legislators and judges. As highlighted last week, the legal history of Jim Crow accelerated in 1883, when the Supreme Court struck down the federal Civil Rights Act of 1875 for using the 14th Amendment to root out private (as opposed to state) discrimination. As Justice Joseph Bradley wrote for the majority, “there must be some stage in the process of his elevation when he [‘a man who has emerged from slavery’] takes the rank of a mere citizen and ceases to be the special favorite of the laws.”
The Civil Rights Cases opened the floodgates for Jim Crow segregation, with transportation leading the way, and not just on ferry lines. As Lofgren writes, Tennessee, having passed the Reconstruction era’s first “equal accommodations law” in the South, had already become the first to subvert it with an “equal-but-separate” transportation law in 1881. Florida followed suit in 1887; Mississippi in 1888; Texas in 1889; Plessy’s Louisiana in 1890; Arkansas, Tennessee (again) and Georgia in 1891; and Kentucky in 1892.
Attaching a Value to One’s Race
To say Plessy was a long shot on such terrain is an understatement. Yet there Tourgée and his legal team were — determined to use their test case to dismantle the legal scaffolding propping up Jim Crow. Elated by Homer Plessy’s flawless execution of the East Louisiana line plan, the Comité des Citoyens bailed him out before he had to spend a single night in jail.
Five months later, on Nov. 18, 1892, Orleans Parish criminal court Judge John Howard Ferguson, a “carpetbagger” descending from a Martha’s Vineyard shipping family, became the “Ferguson” in the case by ruling against Plessy. While Ferguson had dismissed an earlier test case because it involved inter-state travel, the federal government’s exclusive jurisdiction, in Plessy’s all-in-state case, the judge ruled that the Separate Cars Act constituted a reasonable use of Louisiana’s “police power.” “There is no pretense that he [Plessy] was not provided with equal accommodations with the white passengers,” Ferguson declared. “He was simply deprived of the liberty of doing as he pleased.”
A month later, the Louisiana Supreme Court affirmed Ferguson’s ruling. Now Plessy’s lawyers had what they’d hoped for: an opportunity to argue on a national stage. They filed their appeal with the U.S. Supreme Court on Jan. 5, 1893.