PLESSY v. FERGUSON: Justice Harlan's Dissent 1896 Excerpt. Statutes must always have a reasonable construction. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a streetcar or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting. While Harlan had opposed the Thirteenth Amendment (which abolished slavery), the experience of seeing brutal attacks on African Americans in the immediate post-Civil War years apparently changed him. Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. RE-READING JUSTICE HARLAN'S DISSENT IN PLESSY V. FERGUSON: FREEDOM, ANTIRACISM, AND CITIZENSHIP T. Alexander Aleinikoff* Justice Harlan's dissent in Plessy v. Ferguson I has become an impor- tant cultural text in late twentieth century America. It cannot be justified upon any legal grounds. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done. He served as a Union officer in the Civil War, and following the war, he became involved in politics, aligned with the Republican Party. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. Not until 1954 did the Supreme Court accept Harlan’s arguments, when it reversed Plessy v. Ferguson with its Brown v. Board of Education decision. Some, and the most important to them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Another famous example of this type of dissenting opinion occurred when Justice John M. Harlan dissented to the Plessy v. Ferguson (1896) ruling, arguing against allowing racial segregation in the railway system. Unlike the majority, he believed the Louisiana law was "implying inferiority" of African Americans, and thus violated the Equal Protection Clause of … in regard to the colored race, for whose protection the amendment was primarily designated, that no discrimination shall be made against them by law because of their color.”. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. He does not object, nor, perhaps, would he object to separate coaches for his race, if his rights under the law were recognized. If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? The white race deems itself to be the dominant race in this country. They had, as this Court has said, a common purpose; namely, to secure “to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the superior race enjoy.” They declared, in legal effect, this Court has further said, “that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states, and. Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics? Others were made at a time when public opinion, in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race guides in the era introduced by the recent amendments of the supreme law, which established universal freedom, gave citizenship to all born or naturalized in the Untied States and residing here, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.... For the reasons state, I am constrained to withhold my assent from the opinion and judgment of the majority. The lone dissenter was Justice John Marshall Harlan, himself a former slaveholder from Kentucky. It cannot be justified upon any legal grounds. As Justice Harlan observed, Plessy was in some ways a novel decision, for it expanded the tolerance of segregated schooling into a general principle permitting segregation in all walks of life, and this was likely motivated by a policy preference, as the more recent modes of … The white race deems itself to be the dominant race in this country. No one would be so wanting in candor as to assert the contrary. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? The humblest is the peer of the most powerful. Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained, “the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.” . the answer is the constitution was color blind its probably too late but to anyone out there searching for the same thing, i put color blind and got it right Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? University of California, Davis - School of Law. In Plessy v. Ferguson, the lone objector was Justice John Marshall Harlan. and 14. th. But however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. The case Plessy v. Ferguson is extremely significant because it created the Separate But Equal Doctrine and begun the Jim Crow Era. And so it is, in prestige, in achievements, in education, in wealth, and in power. Justice John Marshall Harlan's dissent in Plessy anticipated Brown v. Board of Education of Topeka (1954) and was the lone voice on the Supreme Court to challenge the legitimacy of "separate but equal." The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities as citizens the states are forbidden to abridge. Mr. Justice HARLAN dissenting. The Supreme Court decision argued that as long as racially separate facilities were equal, they did not violate the Fourteenth Amendment’s guarantees of equal protection of the law. Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Justice Harlan’s dissenting opinion. John Marshall Harlan, (born June 1, 1833, Boyle County, Ky., U.S.—died Oct. 14, 1911, Washington, D.C.), associate justice of the United States Supreme Court from 1877 until his death and one of the most forceful dissenters in the history of that tribunal. I do not deems it necessary to review the decisions of state courts to which reference was made in argument. Specifically, in Plessy v. Ferguson, "the Supreme Court held that the state of Louisiana did not violate the Fourteenth Amendment by establishing and enforcing a … May 18, 1996, marks the 100th anniversary of Justice John Marshall Harlan's famous dissenting words in Plessy v. Ferguson that the "Constitution is color-blind." The result of the whole matter is that while this Court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a “partition,” when in the same passenger coach. It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens. They removed the race line from our governmental systems. See all articles by Gabriel Jackson Chin Gabriel Jackson Chin. We also said: “The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.” It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries because of their race and however well-qualified in other respects to discharge the duties of jurymen was repugnant to the Fourteenth Amendment. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned . . Justice John Harlan’s dissent to the court’s decision in Plessy v. Ferguson was based on the premise Plessy was of mixed heritage. In respect of civil rights, all citizens are equal before the law. Iowa Law Review, vol. According to Justice Harlan, the 13th, 14th, and 15th Amendments "removed the race line from our governmental systems." It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. Supreme Court Justice John Marshall Harlan wrote the dissent in the case. But it seems that we have yet, in some of the states, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The humblest is the peer of the most powerful. Justice Harlan had been born in Kentucky in 1833 and grew up in a family of enslavers. One statement often quoted by opponents of race-conscious affirmative action programs is Harlan's assertion that the Constitution is "color-blind," which can be found in the excerpts below. It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens. African Americans in New Orleans fought the new law in several ways, including a legal challenge. Sixty millions of whites are in no danger from the presence here of 8 million blacks. Plessy, der ein Achtel der Schwarzen war, arbeitete mit einer Interessenvertretung zusammen, die das Gesetz testen wollte, um ein Gerichtsverfahren einzuleiten. Justice John Marshall Harlan wrote a memorable dissent to that decision, parts of which are quoted today by both sides of the affirmative action controversy. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. Finally, and to the end that no citizen should be denied on account of his race the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”, These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside,” and that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”, These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. He married the daughter of a wealthy man and didn’t serve in the Union Army during the Civil War. In his Plessy dissent, he insisted that “all citizens are equal before the law” and correctly predicted that upholding the Louisiana law would lead to the passage of even more laws segregating African Americans. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. African Americans in New Orleans fought the new law in several ways, including a legal challenge. The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. The decisions referred to show the scope of the recent amendments of the Constitution. Plessy v. Ferguson, 163 U.S. 537 (1896) In Plessy v.Ferguson the Supreme Court held that the state of Louisiana did not violate the Fourteenth Amendment by establishing and enforcing a policy of racial segregation in its railway system.Justice John Marshall Harlan wrote a memorable dissent to that decision, parts of which are quoted today by both sides of the affirmative action controversy. Ferguson decision was a Kentuckian, Associate Justice John Marshall Harlan. Amendment arguments and instead endorsed the doctrine of “separate but equal.” The dissent, written by Justice John Marshall Harlan, disagreed, arguing that segregation laws The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. The sure guarantee of the peace and security of each race is the clear, distinct, unconstitutional recognition by our governments, national and state, of every right that inheres in civil freedom and of the equality before the law of all citizens of the United States without regard to race. The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent. Persons belonging to it are, with few exceptions, absolutely excluded from our country. The opinion is seen as righteous and prophetic, announcing the proper understanding of the Equal Protection Clause of the Fourteenth Amendment … Such a system is inconsistent with the guarantee given by the Constitution to each state of a republican form of government and may be stricken down by Congressional action or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Each must keep within the limits defined by the Constitution, and the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. But he objects, and ought never to cease objecting to the proposition that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway. MR. JUSTICE HARLAN dissenting. John Marshall Harlan (* 1.Juni 1833 im Boyle County, Kentucky; † 14. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government proceeding alone on grounds of race can prevent it without infringing the personal liberty of each. But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. But this argument does not meet the difficulty. We have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race. But this argument does not meet the difficulty. “Personal liberty,” it has been well said, “consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” . Justice John Marshall Harlan was the lone dissenter from the decision. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens which the civil rights of those citizens are involved. I allude to the Chinese race. It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. MR. JUSTICE HARLAN, dissenting. The court ruled that segregation based on race was acceptable as long as facilities were of equal quality. The majority rejected Plessy’s 13. th. Oktober 1911 in Washington, D.C.) war ein amerikanischer Jurist und von 1877 bis zu seinem Tod Richter am Obersten Gerichtshof der Vereinigten Staaten.Er wurde in Nachfolge von David Davis zum 44. But I do not understand that the courts have anything to do with the policy or expediency of legislation. In order to regain admittance into the Union the former Confederate states needed to Everyone knows that the statues in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. No one would be so wanting in candor as to assert the contrary. Indeed, such legislation as that here in question is inconsistent, not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by everyone within the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Harlan was from a prominent Kentucky family. Justice Harlan s Dissent in Plessy v Ferguson 1896 Mr Justice HARLAN dissenting While there may be in Louisiana persons of different races who are no… A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Justice John Marshall Harlan of the U.S. Supreme Court . What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. John H. Ferguson, judge of the criminal district 1. It not only struck down the institution of slavery as previously existing in the United States but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. At issue was a Louisiana law compelling segregation of the races in rail coaches. . Harlan disagreed with the Court's rejection of Plessy's argument that the Louisiana law implied that blacks were inferior, and accused the majority of being willfully ignorant on the subject. In 1890, Louisiana passed a law compelling railways to “provide equal but separate accommodations for the white, and colored, races,” joining several southern states that had already passed similar laws. Our Constitution is colorblind and neither knows nor tolerates classes among citizens. . . For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. Abstract. Plessy v. Ferguson MR. JUSTICE HARLAN, dissenting. To test the law's constitutionality, Homer Plessy, a Louisianan of mixed race, made a point of getting arrested for sitting in the whites-only section of a train car. Plessy v. Ferguson (1896) Justice Henry Billings Brown, Dissent by Justice John Marshall Harlan Historical Background During Reconstruction the American South saw a widespread upheaval of prevailing norms and customs. Though dissents do not become law as majority opinions do, they are important because they document the struggle between different interpretations of the law. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country, but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom, and by whom through representatives, our government is administered. In Plessy v. Ferguson the Supreme Court held that the state of Louisiana did not violate the Fourteenth Amendment by establishing and enforcing a policy of racial segregation in its railway system. Justice Benjamin Curtis wrote a forceful dissent about the travesty of this decision. . Plessy v. Ferguson / Excerpts from the Dissenting Opinion. Plessy gegen Ferguson. Am 7. In a 7-1 decision, the Supreme Court ruled in favor of Ferguson. Plessy v. Ferguson: Justice Harlan Dissents. In 1892, they arranged for Homer Adolph Plessy to be arrested on an East Louisiana Railway train for refusing to move to the car designated for “colored passengers.” The case eventually reached the U.S. Supreme Court in 1896 as Plessy v. Ferguson (named for the judge who first ruled against Plessy). This Court has so adjudged. Justice Harlan wrote a dissent stating that segregation violated the 14th Amendment because it … Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. The Plessy v. Ferguson Supreme Court case legalized Jim Crow practices throughout the South. It decreed universal civil freedom in this country. The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. The 59 th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v.Ferguson (1896). But this argument does not meet the difficulty.
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