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Plessy v. Ferguson Re-examined

Published online by Cambridge University Press:  16 January 2009

Richard A. Maidment
Richard A. Maidment
Affiliation:
University of Keele
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Extract

The United States Supreme Court's decision in Plessy v. Ferguson falls into that category of unfortunate opinions which have few defenders. Its only supporters currently are those who affirm their belief in and advocate the merits of legally-enforced racial segregation as state social policy. This support, however, is bereft of intellectual substance and is correctly ignored or dismissed by most scholars. Reputable students of the court have without exception been unremittingly hostile to the opinion of the court, because of the presumed socially deleterious ramifications of the judgement. Furthermore, the opinion of Mr Justice Brown has been criticized for logical and legal shortcomings and has been labelled by one scholar as being an exercise in ‘conservative sociological jurisprudence’.3 It is the purpose of this paper to suggest that Brown's judgement has been misrepresented. Despite the fact that the decision gave a constitutional imprimatur to racial segregation, the logic of the opinion owes more to a philosophy of judicial restraint and respect for precedent than to a belief in conservative sociology or racial superiority. The court was in Plessy merely affirming its understanding that the Louisiana statute under review was consonant with the equal protection clause of the Fourteenth Amendment and was not commenting on the merits of racial segregation as governmental policy.

Type
Research Article
Information
Journal of American Studies , Volume 7 , Issue 2 , August 1973 , pp. 125 - 132
Copyright
Copyright © Cambridge University Press 1973

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References

1 163 U.S. 537 (1896).

2 ‘Presumed’ is the operative word in this sentence. Certain influential groups within the black community have rejected the integrationist ethic as potentially detrimental to the interest of black people. For a manifestation of this, see the dispute over ‘community control’ in the Ocean Hill-Brownsville district of New York City in the autumn of 1968: Berube, M. R. and Gittel, M. (ed.), Confrontation at Ocean Hill-Brownsville (1969).Google Scholar

3 Bernstein, B. J., ‘Plessy v. Ferguson: Conservative Sociological Jurisprudence’, Journal of Negro History, 68 (1963), 196.CrossRefGoogle Scholar

4 163 U.S. 537, 540 (1896).

5 Ibid., p. 541.

6 Ibid., pp. 548, 549.

7 Ibid., p. 542.

8 Chief Justice Shaw in his famous definition of the police power in Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851)Google Scholar, wrote that it was ‘the power vested in the legislature by the constitution to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same’. See also Schwartz, B., A Commentary on the Constitution of the United States (1964), vol. 2, passim.Google Scholar

9 94 U.S. 113 (1876).

10 Ibid., pp. 132, 133, 134 (emphasis added).

11 See New Jersey Steam Navigating Co. v. Merchants' Bank, 47 U.S. (6 How.) 344 (1858)Google Scholar, and Olcottv. The Supervisors, 83 U.S. (16 Wall.) 678 (1872).Google Scholar

12 163 U.S. 537, 550 (1896) (emphasis added).

13 Ibid., p. 545.

14 See Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849).Google Scholar

15 B. J. Bernstein, op. cit., p. 201.

16 93 New York 438 (1883).

17 163 U.S. 537, 531 (1896) (emphasis added).

18 Ibid., pp. 551, 552.

19 Ibid., p. 545.

20 59 Mass. (5 Cush.) 198 (1849).

21 Ibid., p. 206.

22 Ibid., p. 206. See also Levy, L. W. and Phillips, H. B., ‘The Roberts case: Source of the Separate but Equal Doctrine’, American Historical Review, 61 (1950–1), 510 ff.Google Scholar

23 3 Cong. Rec. 1010 (1875).

24 Ibid., p. 1010.

25 163 U.S. 537, 544 ff. (1896).

26 Ibid, especially p. 551. Brown's ventures into sociology may well have been stimulated by Mr Justice Harlan's oft-quoted and praised dissenting opinion. Speculation and sociological assertion were not absent from Harlan's opinion – indeed it consisted of little else as it is devoid of reasoning, legal or otherwise. However as his sociology is more compatible with current beliefs, it is the object of praise rather than criticism.

27 Ibid., pp. 545, 546.

28 See Llewellyn, , The Bramble Bush: On Our Law and its Study (1960)Google Scholar; The Common Law Tradition: Deciding Appeals (1960)Google Scholar; Jurisprudence: Realism in Theory and Practice (1962)Google Scholar. For a concise and thoughtful introduction to legal realism, see Rumble, W. Jr, American Legal Realism (1968).Google Scholar