‘Plessy v. Ferguson’: Who Was Plessy?

‘How many mysteries have begun with the line, “A man gets on a train … “? In our man’s case, it happens to be true, and there is nothing mysterious about his plan. His name is Homer Plessy, a 30-year-old shoemaker in New Orleans, and on the afternoon of Tuesday, June 7, 1892, he executes it perfectly by walking up to the Press Street Depot, purchasing a first-class ticket on the 4:15 East Louisiana local and taking his seat on board. Nothing about Plessy stands out in the “whites only” car. Had he answered negatively, nothing might have.

Instead, as historian Keith Weldon Medley writes, when train conductor J.J. Dowling asks Plessy what all conductors have been trained to ask under Louisiana’s 2-year-old Separate Car Act — “Are you a colored man?” — Plessy answers, “Yes,” prompting Dowling to order him to the “colored car.” Plessy’s answer started off a chain of events that led the Supreme Court to read “separate but equal” into the Constitution in 1896, thus allowing racially segregated accommodations to become the law of the land.

Here’s what happens next on the train: If a few passengers fail to notice the dispute the first or second time Plessy refuses to move, no one can avoid the confrontation when the engineer abruptly halts the train so that Dowling can dart back to the depot and return with Detective Christopher Cain. When Plessy resists moving to the Jim Crow car once more, the detective has him removed, by force, and booked at the Fifth Precinct on Elysian Fields Avenue. The charge: “Viol. Sec. 2 Act 111, 1890” of the Louisiana Separate Car Act, which, after requiring “all railway companies [to] provide equal but separate accommodations for the white, and colored races” in Sec. 1, states that “any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison.”

It takes only 20 minutes for Homer Plessy to get bounced from his train, but another four years for him to receive a final decision from the United States Supreme Court. He is far from alone in the struggle. The 18-member citizens group to which Plessy belongs, the Comité des Citoyens of New Orleans (made up of “civil libertarians, ex-Union soldiers, Republicans, writers, a former Louisiana lieutenant governor, a French Quarter jeweler and other professionals,” according to Medley), has left little to chance.

In fact, every detail of Plessy’s arrest has been plotted in advance with input from one of the most famous white crusaders for black rights in the Jim Crow era: Civil War veteran, lawyer, Reconstruction judge and best-selling novelist Albion Winegar Tourgée, of late a columnist for the Chicago Inter-Ocean who will oversee Plessy’s case from his Mayville, N.Y., home, which Tourgée calls “Thorheim,” or “Fool’s House,” after his popular novel, A Fool’s Errand (1879). Even the East Louisiana Railroad, conductor Dowling and Detective Cain are in on the scheme.

Critically important to the legal team is Plessy’s color — that he has “seven eighths Caucasian and one eighth African blood,” as Supreme Court Justice Henry Billings Brown will write in his majority opinion, an observation that refers to the uniquely American “one drop rule” that a person with any African blood, no matter how little, is considered to be black. That Plessy’s particular “mixture of colored blood” means it is “not discernible” to the naked eye is not the only thing misunderstood about his case.

Drawing the Racial Dividing Line

In Should Blacks Collect Racist Memorabilia?, we saw the impact that “Sambo Art“ had on stereotyping African Americans at the height of the Jim Crow era. So devastating was it in drawing, and deepening, the color line, I venture that most of us, whenever we hear of Plessy v. Ferguson (1896), immediately think of the slogan “separate but equal,” and, because of it, wrongly assume that the two named parties in this famous court case had to have been, on the one hand, the darkest of black people and the most Southern of whites. At the same time, as my colleague at Harvard legal historian Ken Mack has pointed out in the Yale Law Journal, we err in seeingPlessy through the prism of the case that undid separate-but-equal a half-century later, Brown v. Board of Education (1954), so that the struggle becomes only one of securing civil rights in an integrated society instead of through multiple and sometimes contradictory paths: equality, independence, racial uplift, to name a few.

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.

Contrary to popular memory, “The gist of our case,” they wrote in their brief (as quoted in Lofgren), “is the unconstitutionality of the [Separate Cars Act’s] assortment; not the question of equal accommodation.” In other words, if train conductors could be authorized to classify men and women by race, according to visible and, in Plessy’s case, invisible cues, where would the line-drawing stop? “Why may it [the state] not require all red-headed people to ride in a separate car? Why not require all colored people to walk on one side of the street and the whites on the other? Why may it not require every white man’s house to be painted white and every colored man’s black? Why may it not require every white man’s vehicle to be of one color and compel the colored citizen to use one of different color on the highway? Why not require every white business man to use a white sign and every colored man who solicits custom a black one?” (Little did Tourgée or his fellows know just how absurd the use of signs in the South would become.)

While the constitutional arguments of Tourgée et al are best left to legal experts, I continue to be fascinated by the one they crafted about the indeterminacy of race and the reputational risks (and rewards) posed to those who couldn’t (and could) pass for white. As they expressed in Plessy‘s brief: “How much would it beworth to a young man entering upon the practice of law, to be regarded as a white man rather than a colored one? Six-sevenths of the population are white. Nineteen-twentieths of the property of the country is owned by white people. Ninety-nine hundredths of the business opportunities are in the control of white people … Indeed, is it [reputation] not the most valuable sort of property, being the master-key that unlocks the golden door of opportunity?”

I’m sure there’s little suspense around the fact that a majority of the Supreme Court’s then-serving justices chose against opening the door to the Plessy team’s arguments. In his opinion for the Court, handed down on May 18, 1896, Justice Henry Billings Brown explained that, as a technical matter, he didn’t have to address Homer Plessy’s particular “mixture of colored blood,” because the appeal his lawyers had filed challenged only the constitutionality of Louisiana’s Separate Car Act, not how it had been applied to the actual sorting of Plessy or any other man.  At the same time, for the sake of argument, Brown wrote, even if one’s color was critical to his reputation (and thus constituted a property right), he and the Court were “unable to see how [the Louisiana] statute deprives him of, or in any way affects his right to, such property.” (Perhaps this was because attorneys for the state had already conceded that the law, as written, could be interpreted as having a crack in its immunity shield for erring rail lines and conductors.)

Accordingly, if the wronged party “be a white man … assigned to a colored coach,” Brown wrote, “he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.” As a result, the Court held, Louisiana’s Separate Car Act passed constitutional muster as a “reasonable” use of the state’s “police power,” preempting consideration of Tourgée’s hypotheticals about paint and signs and such. As far as “separate but equal” went, Jim Crow had seven justices’ blessings.

The Evolution of “Reasonable”

Perhaps what is most amazing about Plessy v. Ferguson is how un-amazing it was at the time. As Lofgren and others have shown, contemporary newspaper editors were much more concerned about the nation’s most recent economic crisis, the Panic of 1893, its overseas forays to the South and West, and the relative power of unions, farmers, immigrants and factories. (For similar reasons, some of those tracking the two affirmative action cases pending before the current Supreme Court are concerned that those cases may get drowned by more pressing headlines.) For most, Plessy v. Ferguson only acquired its notoriety years later as a result of the Brown school desegregation cases and of future lawyers like Charles Hamilton Houston and Thurgood Marshall, who found inspiration for their strides against Jim Crow segregation in Plessy‘s lone dissent by Justice John Marshall Harlan — of all the justices a Southerner and a former slave holder.

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Harlan had reminded the Plessy majority (ironically using the same inkwell the late Chief Justice Roger Taney had used in penning the infamous Dred Scott decision of 1857, at least according to legend). Making the Louisiana law even more absurd, in Harlan’s view, had been the sole exception the statute had carved out for “nurses attending children of the other race.” In other words, it was OK for black “Mammies” to ride white cars with white babies, but not with their own (or with white adults, for that matter), because in those instances alone, the unspoken racial hierarchy was clear: Black nurses, at least as a matter of perception, still bore the markings of slaves.

With Jim Crow still ascendant between Plessy and Brown, babies born in New Orleans like future jazz great Louis Armstrong (1901) would have to grow up in the shadows of the color line that Plessy‘s lawyers were unable to erase — or even blur. Also, in between, all the main players in the case died: Walker in 1898, Tourgée in France in 1905, Ferguson in 1915, Martinet in 1917 and Homer Plessy in 1925 (in case you’re wondering, a few months after the Supreme Court’s ruling, Plessy pled “guilty” to defying the Louisiana Separate Cars Act and paid his $25 fine).

Then as now, Americans remain fascinated with the “one” — or a few — “drop(s) rule.” Tourgée himself dramatized the phenomenon of passing in his 1890 novel Pactolus Prime, Mark Twain more famously in The Tragedy of Pudd’nhead Wilson (1894) and, in our own time, there’s Philip Roth’s The Human Stain in print (2000) and on screen (2003).

But white authors aren’t the only ones counting. Reclaiming the one drop rule served as an important motivator for the original “Amazing Facts About the Negro” explorer, Joel A. Rogers. And as another of my colleagues at Harvard, law professor Randy Kennedy, has said more recently in an interview online: “A lot of black people have come to like the one drop rule because, functionally, it is helpful in many respects. If you think about some of the most important leaders in African-American history, W.E.B. Du Bois … in other regimes, in other nations, he might not be viewed as ‘black.’  Frederick Douglass, Frederick Douglass’ father was white. The great Frederick Douglass, but you know, one drop rule … ‘black.’ ”

As we’ve seen in the past two weeks, everything about Jim Crow art and law was meant to turn the spectrum of race into easily identifiable stereotypes. As valuable as collecting to remember can be, it is far more important for us to tell and retell the stories of the men and women who saw just how naked the emperor was. Along these lines, I’m happy to note that descendants of the two named parties in Plessy v. Ferguson, Keith Plessy and Phoebe Ferguson, along with historian Keith Medley, have established the Plessy and Ferguson Foundation (notice their use of “and” instead of “v.”) to “create new and innovative ways to teach the history of Civil Rights through understanding this historic case and its effect on the American conscience.” With their help, the state of Louisiana now marks every June 7 as Plessy Day, and since 2009, a plaque commemorating the dramatic story that began with “A man gets on a train” has stood in the same spot where our man was arrested.

Fifty of the 100 Amazing Facts will be published on The African Americans: Many Rivers to Cross website. Read all 100 Facts on The Root.