Plessy v. Ferguson | The Gilded Age (1865-1898) | US history | Khan Academy

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 vs. Ferguson, which asked whether separate but equal accommodations for black and white Americans violated the Fourteenth Amendment of the Constitution.

To learn more about this case, I spoke with two experts. Jamaal Green is the Dwight Professor of Law at Columbia Law School. Earl Maltz is a distinguished professor of law at Rutgers Law School.

So Professor Green, 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?

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. Right at the end of the Civil War, the Thirteenth Amendment was passed, and the Thirteenth 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 Thirteenth Amendment did not mean that former slaves had equal rights. A number of the former states of the Confederacy—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. There were a number of openly discriminatory laws. There were also laws that required blacks to be employed on pain of having their liberty forced—so ways of essentially reinstituting the institution of slavery—and these were known as the Black Codes.

Those are known as the Black Codes, exactly. 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, as part of the settlement of the presidential election of 1876, the federal government drew back some, but most of the 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, and after that, the South is pretty much under control of the people who sympathized with ex-Confederates 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.

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 and 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 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?

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.

In southern states, Reconstruction—with 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. 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, the mid-1870s from the southern states.

As part of their campaign, they imposed the Jim Crow system. 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. 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.

So let's kind of dial into the case Plessy versus Ferguson. Who was Homer Plessy, and why did he take issue with segregation?

Well, the law that was at issue required what wasn't very separate and equal: separate but equal accommodation of African Americans and whites in public transportation. Homer Plessy objected to it because, A, the facilities weren't really equal, and he objected to it because he was, in part, 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 to establish this system of racial segregation. So Plessy was in league with the railroad and with the civil rights organization that recruited him to set up a case.

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. 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 that the conductors themselves could be fined by the state for not doing so, and it could also be fined by passengers for mistakenly putting someone in the wrong car.

So the railroads didn't really want to 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. So Homer Plessy 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?

He's arrested, and then he is eventually charged with a crime—a violation of the statute—and there's a fine associated with violating the state law. His lawyers bring a claim that the law violates the Federal Constitution. So it goes through the state courts of Louisiana, and then eventually they rule against Homer Plessy and in favor of the law.

Then his lawyers appeal the case to the US Supreme Court.

So how did the court rule 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. None of the justices on the court were considered to be particularly friends of black Americans.

In the civil rights cases in 1883, the court had already held that Congress lacked authority to prohibit segregation in public accommodations, which meant that public accommodations were treated as something purely private rather than a civil right, a quasi-governmental right, or a quasi-public right.

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, as long as the state of Louisiana maintained separate but equal facilities, they could do that—that that was not prohibited by the Fourteenth Amendment.

The Supreme Court in 1896 ruled 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 Fourteenth 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 Fourteenth Amendment requires is that basic equality in civil rights.

John Marshall Harlan, of course, dissented from that. I think 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 for talking about the color-blind Constitution, but what he says is, with respect to civil rights—common rights common to all citizens. I don't have the exact language before me.

The Constitution was required to be colorblind. 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, which was, and therefore was protected against segregation by section 1 of the 14th Amendment.

I want to make that point because it's pretty clear that Harlan believed, for example, that the maintenance of segregated schools would be constitutional. It's also true that Harlan voted to say that miscegenation laws were constitutional. The dissenting judge, Justice Harlan himself—a former supporter of slavery—changed his views and eventually became known as a champion of black civil rights.

Right, 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. Unusually, 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 vs. 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.

That's fascinating. So what was the effect of this ruling in Plessy versus Ferguson?

There are two ways that you could look at it. Until 1954, the effect of the ruling was to allow—that was to say that these 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 held that it was unconstitutional for the state to formally require segregation among the races. There were a lot of informal pressures that would have pushed towards 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 things.

So this concept of separate but equal is, I think, the most important thing that comes out of Plessy versus Ferguson and then later, you know, will lead to issues in the 20th century. So was it separate ever equal, in theory or in practice?

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 vs. Ferguson was decided. Laws that prevented blacks from voting through a number of their literacy requirements, 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.

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. The lawyers who brought the Plessy case were 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.

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 vs. Ferguson would have made much difference in the actions of southern states if there was no political will to enforce integration anyway.

Jamaal Green, 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 and Khan Academy's resources on US government and history.