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The Law and Significance of Plessy John A The Law and Significance of Plessy john a. powell In this article, the author explores the legal history that precluded and followed the case of Plessy v. Fergu- son, setting up the historical context and significance of the case. Here, powell shows the embeddedness of structural racism in the American legal system and the slow work done to untangle racism from the law. Keywords: legal history, structural racism, segregation It is helpful to social science researchers unfa- dominated governments sought new ways to miliar with legal scholarship to understand institutionalize racial stratification after 1863. how a U.S. Supreme Court decision can shape Nonetheless, it has become an arch symbol of public policies more than a century later.1 The jurists going awry and a talisman of racial op- decision in Plessy v. Ferguson looms large in our pression. Indeed, in his now- famous and lone nation’s historical memory, but it is both more dissenting opinion, Justice John Marshall Har- significant than we generally appreciate and lan wrote that “the judgment this day rendered less so.2 Ostensibly about little more than the will, in time, prove to be quite as pernicious as separation of railway passengers by race as re- the decision made by this tribunal in the Dred quired by a state ordinance, the decision ce- Scott Case,” with Dred Scott being another mented rather than inaugurated many changes touchstone of judicial malfeasance.3 in public policy across the South as White- Yet, for all its symbolic importance, the john a. powell is Robert D. Haas Chancellor’s Chair in Equity and Inclusion, professor of law, African American studies, and ethnic studies, and director of the Othering & Belonging Institute at the University of California, Berkeley, United States. © 2021 Russell Sage Foundation. powell, john a. 2021. “The Law and Significance of Plessy.” RSF: The Russell Sage Foundation Journal of the Social Sciences 7(1): 20–31. DOI: 10.7758/RSF.2021.7.1.02. The author thanks Stephen Menendian and Amalee Beattie for their research assistance. Direct correspondence to: john a. powell, Othering & Belonging Institute, University of California, Berkeley, 460 Stephens Hall, Berkeley, CA 94720, United States. Open Access Policy: RSF: The Russell Sage Foundation Journal of the Social Sciences is an open access journal. This article is published under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported Li- cense. 1. This article provides a layman’s introduction to the legal and historical essays in this volume and provides details about the reasoning behind and consequences of the Plessy decision. 2. Plessy v. Ferguson, 163 U.S. 537 (1896). 3. Plessy, 163 U.S. at 559. In Dred Scott, the Supreme Court held that the Constitution did not intend to extend citizenship privileges to African Americans, whether they were born free or in slavery or in a free or slave state. the law and s ignIfIcance of plessy 21 Plessy decision does not implicate the type or as those implemented by law and policy. As form of segregation we live with today, nor is it Richard Rothstein points out, it can often be even directly connected to it. Racial residential difficult to distinguish between de facto and segregation across the United States was rela- de jure forms of segregation or discrimina- tively low and generally nowhere more than tion: “for example, if it becomes a community moderate, in the late nineteenth and early norm for whites to flee a neighborhood where twentieth centuries. Not until the interwar and African Americans were settling, this norm postwar periods nearly a half century later did can be as powerful as if it were written into racial residential segregation become an ac- law” (2017, xv).4 complished fact in the United States (see Segregation, however, was never just about Massey and Denton 1993, 47). Contrary to the separating people by race physically; it was pri- significance accorded to the Plessy Court for marily about preserving White supremacy and sanctioning racial segregation in public facili- opportunity. In the Jim Crow South, residential ties, residential segregation was not primarily segregation was not needed to maintain either. an outgrowth of Jim Crow. Segregation can be thought of as a form of op- Indeed, it was northern cities, not southern portunity hoarding (Rury and Saatcioglu 2015). ones, that segregated most rapidly from 1920 to The denial of transportation opportunities at 1940. Thus, by 1940, urbanized areas of most the end of the nineteenth century and the northern cities had high levels of Black residen- more explicit subjugation of Black spatial geo- tial racial segregation, and southern cities graphic segregation was neither necessary nor lagged behind. Moreover, although Plessy was practical. Thus the expression of segregation decided in 1896, racial residential segregation evolves—and will continue to evolve—as cir- in the United States, at least as measured by the cumstances change. It is one of many ways to dissimilarity index, peaked somtime between maintain the racial status quo. With the in- 1950 and 1970, depending on the region of the crease in public and private transportation, the country measured (Massey and Denton 1993, need for workers to live close to work became 47). less important and thus supported spatial seg- Because segregation was already accom- regation. plished by social mores and in public spaces, Plessy is not only not the root of the segrega- municipal or state ordinances mandating racial tion so pervasive today, it is also not the root of residential segregation were not only generally Jim Crow segregation. Far from inaugurating a unnecessary but also would not have served the new regime of Jim Crow, Plessy is better viewed regions’ labor arrangements, in which domes- as the impetus for backsliding on the commit- tic workers and agricultural workers needed ments embodied in the Reconstruction amend- close access to their employers (Sander, ments to the Constitution. Indeed, it was pre- Kucheva, and Zasloff 2018, 24–25). Because seg- ceded by decisions like the Civil Rights Cases, regation was in effect in restaurants, theaters, which struck down the Civil Rights Act of 1875 schools, and recreational facilities, residential as reaching beyond the domain of state action segregation to maintain racial hierarchy and into private activity, United States v. Cruikshank, inequality was not needed. in which the Supreme Court gutted the Force An interaction is implicit between mores— Acts of the early 1870s and overturned convic- what are thought of as informal practices— tions of White men associated with the Klu and more formal norms and standards such Klux Klan who massacred freedmen in Louisi- In that decision, the Court also struck down the 1820 Missouri Compromise. In this way, the decision intensified debates about the extension of slavery in the western territories that was a contributory cause of the Civil War. Dred Scott v. Sandford, 60 U.S. 393 (1857). 4. Rothstein argues that the racial residential segregation we live with today is de jure, not de facto, and that therefore a powerful federal response is constitutionally required to remediate it. rsf: the russell sage foundation journal of the social sciences 22 the le Gacy of “separate but equal” ana, and the Slaughter-House Cases, which con- tion the equal protection of the laws.” Unfortu- stricted the meaning of federal citizenship and nately, it does not clearly explain what is meant eviscerated the Privileges and Immunities by this.8 The Louisiana state ordinance chal- Clause of the Fourteenth Amendment (see lenged in Plessy required that “all railway com- Black 1999).5 Plessy was the crystallization of a panies carrying passengers in their coaches in long process by which a reactionary and in- this State, shall provide equal but separate ac- creasingly conservative Supreme Court drained commodations for the white and colored those amendments of their full meaning and races.” Stringent penalties for violation applied import, a pullback from Lincoln’s call for “a to both passengers and employees of the rail- new birth of freedom.” way, in the form of a $25 fine or imprisonment Nonetheless, the Plessy decision reverber- in lieu thereof.9 The act created a single excep- ated across the nation and became both a sym- tion for “nurses attending children of the other bol of oppression for a burgeoning civil rights race.” It did not, however, create similar excep- movement and the ultimate target of Thurgood tions for White passengers traveling with or at- Marshall and Charles Hamilton Houston’s tending to “children of the other race” nor “col- grand, multidecade legal strategy to attack Jim ored attendants traveling with adults,” even Crow. The culmination of this strategy was the where a White passenger’s “condition of health unanimous Supreme Court opinion in Brown v. requires the constant, personal assistance of Board of Education, which declared unconstitu- such servant.”10 The concept of equality both as tional the segregation of educational facilities a constitutional provision and social norm is and, by extension, the segregation of public anything but intuitive. Although the ordinance spaces.6 Although the Court in Brown did not explicitly required that all such accommoda- explicitly overturn Plessy, it did ultimately re- tions be “equal,” the Court accepted the fiction ject the doctrine of “separate but equal” an- that separate could be equal, in part, by parsing nounced in Plessy.7 the scope of equality ever so narrowly. As the Court explained, “We consider the underlying The Doctrine of fallacy of the plaintiff’s argument to consist in “SePaRaTe buT equaL” the assumption that the enforced separation of The Equal Protection Clause of the Fourteenth the two races stamps the colored race with a Amendment simply requires that “no state badge of inferiority.
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