Understanding Plessy v. Ferguson (1896)



Professor Volokh blogs Paul Craig Roberts' latest defense of his counterintuitive position that laws that discriminate based on race are wrong, but that Brown v. Board of Education (1954) was wrong because it struck down laws that required racial discrimination. Roberts's response includes this amazing claim:

When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars" on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other."

If segregation had been a "social convention"--it would have required no legal teeth to enforce it. Segregating restrooms based on sex was, until a few years back, truly a social convention--as some local governments discovered in the late 1970s and early 1980s, with no legal prohibition on using restrooms intended for the opposite sex. (I would expect that you can find either state laws or local ordinances on the subject now.) It was precisely because racial segregation was not a social convention that Louisiana needed to pass a law segregating railroad cars by race. This law was remarkable not merely for requiring segregation, but even providing for "penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act...." In short, Louisiana didn't trust the free market and its response to "social convention" to be sufficient to racially segregate railroad cars; the government's heavy hand was required.

In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct.

If blacks and whites had really been economically distinct, there would have been no need for such a law. Blacks could not have afforded to buy first class tickets. If whites had been following a "social convention" about segregation, and were economically distinct from blacks, they would not have been buying tickets in the lower class cars with whites.



I have been reading Edward L. Ayers, The Promise of the New South: Life After Reconstruction, and one of the points that he makes is that racial segregation of railroads came about not because of blacks and whites being economically distinct, but because they were becoming economically indistinct. An increasingly middle-class black population did not want to sit in the same cars with men who were chewing tobacco, drinking, and otherwise behaving badly. The reminder that the important distinction was not race, but class, was offensive to poor whites (who desperately needed someone to look down upon). Politicians, of course, knew full well that the way to elective office was to appeal to the worst instincts of white voters.