Justice Henry Billings Brown and reasonableness in Plessy v. Ferguson (1896)

You will get a debate among legal pundits (I hesitate to call them scholars) on which was more puerile, Dred Scott v. Sandford (1857) or Plessy v. Ferguson (1896). You’d think they were both authored by immoral morons, as acts of pure ignominy.

Last week, I argued for Chief Justice Roger Brooke Taney’s sanity in Dred Scott; this week it’s Justice Henry Billings Brown, a fellow Michigander, who in 1887 received an honorary doctorate from the University of Michigan — now, he can’t be too bad. Again, we must have a historical perspective when we study history, here, in particular, 19th century legal history. Anyone who uses 21st century legal theory to evaluate 19th century opinions is off-base. Read them as they are and get a true view into our history and judicial methodology.

In Plessy, the facts were as follows. The petitioner, Plessy, was one-eighth, as the court put it, African blood, seven-eighths Caucasian, with the African part not discernible. In fact, he claimed to be white. On June 7, 1892, he paid for a first-class ticket for rail passage wholly within Louisiana; interstate commerce was a different matter under the law. He took his seat in the white-race coach. He was ordered by the conductor to take a seat in the “colored” coach. He refused, a struggle ensued, and he would end up in jail, held to answer a charge that he violated the state statute requiring separate coaches for white and colored races of July 10, 1890.

In court, petitioner attacked the said separate-but-equal statute as violative of the 13th and 14th amendments of the federal Constitution.

Justice Brown responded regarding the 13th Amendment: “That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude … is too clear for argument.” Citing the Civil Rights cases (1883), refusing to accommodate a colored person, “…cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving ordinary civil injury….” Citing Justice Joseph P. Bradley, “’It would be running the slavery question into the ground, to make it apply to every act of discrimination…’.”

Of greater importance for petitioner and for the court was the 14th Amendment’s Equal Protection Clause. Three points were critical for Justice Brown.

First, 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 on color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” He cited several state cases, including Michigan’s Day v. Owen (1858). He distinguished between legal and political equality, and social equality, the latter being more the attitudes of the people, not law.

The second point was psychological. Cases requiring separation, “…do not necessarily imply the inferiority of either race to the other.” If there is an issue of inferiority, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” This point, of course, was overturned by Brown v. Board (1954) as regards children in school.

Third, and I believe key, was the use of the Rational Basis Test based on reasonableness. Here, the legitimate state interest was: “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” The means was to separate the races in certain situations, like the Congress had with schools in the District of Columbia, and as several other states had. Today, because race is a special classification, we use the Strict Scrutiny Test, where there must be a compelling state interest, plus necessity, i.e., no other way of achieving that interest, such as in affirmative action, which our court will, using its best lights, decide this term.

One-hundred-twenty-six years from now, what will pundits think of that decision? Henry Billings Brown died in a beautiful home in Washington, D.C., on Sept. 4, 1913, surely satisfied with his career. Separate-but-equal would be good law until 1954.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Reasonableness in Plessy v. Ferguson