Guest Essayist: Daniel A. Cotter

In 1890, Louisiana passed the Separate Car Act which required railroads to provide separate accommodations, including separate cars, for blacks and whites.  A group of Creoles and blacks in New Orleans formed a committee, the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, to challenge this law.  Homer Plessy, whose light-colored skin made him appear to be white but was classified as “colored” under Louisiana law because he was one-eighth black, agreed to bring a test case on behalf of the Committee. He bought a first class ticket and boarded a train in New Orleans in a “whites only” car.  Plessy was arrested by a detective who had been hired by the Committee to ensure that Plessy would be charged with violating the Separate Car Act.  The Louisiana court found Plessy guilty of violating that Act and Plessy sought Supreme Court review of that ruling.  The Supreme Court heard the case, with the main issues being whether the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution and whether the Separate Car Act labeled blacks with a badge of inferiority.

Background of the Case

The Separate Car Act was an example of the Jim Crow laws passed in the post-Civil War South.  Because the Louisiana Supreme Court had previously ruled that the Separate Car Act was not implicated by interstate commerce, Plessy bought a ticket for a train trip solely within Louisiana.  Plessy was arrested, and the judge in Plessy’s case held that Louisiana had the power and authority to regulate railroads while they operated within the state.  The Louisiana Supreme Court upheld Plessy’s conviction and sentence to pay $25, holding that the Thirteenth and Fourteenth Amendment did not apply.

The Controversy and the Supreme Court Decision

Plessy appealed to the Supreme Court, arguing that his rights under the Thirteenth and Fourteenth Amendments were violated.   The Supreme Court, by a 7-1 decision, rejected Plessy’s arguments and instead held that the Thirteenth Amendment applied only to actions seeking to reintroduce slavery and was not intended to apply to other distinctions based on color.  Justice Henry Billings Brown wrote for the majority:

This amendment was said in the Slaughterhouse Cases, 16 Wall. 36, to have been intended primarily to abolish slavery as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and that the use of the word “servitude” was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated…that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.

Plessy v. Ferguson, 163 U.S. 537, 542 (1896).

Justice Brown then turned to the Fourteenth Amendment question, again rejecting Plessy’s argument.  Brown noted that the Fourteenth Amendment was intended to ensure that the equality of the two races was enforced “before the law,” stating:

[I]t was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

Plessy, 163 U.S. 537 at 543-44.

Brown found that lawful separation of the races did not equate with finding one race inferior:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

Plessy, 163 U.S. 537 at 551.

Justice Brown relied on prior rulings supporting school segregation and compared the segregation required under the Separate Car Act to school segregation, and supported segregation in both instances.  The Supreme Court’s decision in Plessy did not engender much criticism at the time it was issued.  The Court in Plessy applied the same rationale to the Thirteenth and Fourteenth Amendments as it had in other settings involving blacks. Only Justice John Marshall Harlan dissented and argued that the “separate but equal” mandate was a violation of the Thirteenth and Fourteenth Amendments.  Harlan asserted the Thirteenth Amendment was intended to apply to all “badges of slavery or servitude” and that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens,” concluding:

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.


The Plessy decision is a landmark decision that upheld the “separate but equal” doctrine, which would remain the law of the land for almost sixty years until 1954, when the Supreme Court issued its unanimous decision in Brown v. Board of Education.  Harlan, the lone dissenter, was ultimately proved correct.

Plessy v. Ferguson (1896) Supreme Court decision 7-1: (with Justice Brewer not participating)

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.