Plessy v. Ferguson

Race and Inequality in Jim Crow America

WilliamJames Hull Hoffer

• Publisher: University Press of Kansas
• Year: 2012
• ISBN:
  9780700622412
• Topic: Diritto
• Subtopic: Storia giuridica

Six decades before Rosa Parks boarded her fateful bus, another traveler in the Deep South tried to strike a blow against racial discrimination—but ultimately fell short of that goal, leading to the Supreme Court's landmark 1896 decision in Plessy v. Ferguson. Now Williamjames Hull Hoffer vividly details the origins, litigation, opinions, and aftermath of this notorious case.In response to the passage of the Louisiana Separate Car Act of 1890, which prescribed "equal but separate accommodations" on public transportation, a group called the Committee of Citizens decided to challenge its constitutionality. At a pre-selected time and place, Homer Plessy, on behalf of the committee, boarded a train car set aside for whites, announced his non-white racial identity, and was immediately arrested. The legal deliberations that followed eventually led to the Court's 7-1 decision in Plessy, which upheld both the Louisiana statute and the state's police powers. It also helped create a Jim Crow system that would last deep into the twentieth century, until Brown v. Board of Education in 1954 and other cases helped overturn it. Hoffer's readable study synthesizes past work on this landmark case, while also shedding new light on its proceedings and often-neglected historical contexts. From the streets of New Orleans' Faubourg Trem district to the justices' chambers at the Supreme Court, he breathes new life into the opposing forces, dissecting their arguments to clarify one of the most important, controversial, and socially revealing cases in American law. He particularly focuses on Justice Henry Billings Brown's ruling that the statute's "equal, but separate" condition was a sufficient constitutional standard for equality, and on Justice John Marshall Harlan's classic dissent, in which he stated, "Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens." Hoffer's compelling reconstruction illuminates the controversies and impact of Plessy v. Ferguson for a new generation of students and other interested readers. It also pays tribute to a group of little known heroes from the Deep South who failed to hold back the tide of racial segregation but nevertheless laid the groundwork for a less divided America.

chapter 1

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The Crescent City

The city of New Orleans existed long before its citizens initiated one of the most important civil rights cases in the post–Civil War period. The French deposited the first settlers on the high ground above the bayous in 1718. The settlement was relatively safe from the flooding of the Mississippi, and the trade conducted with the Native Americans of the interior soon brought a level of prosperity to that isolated outpost. From the first, however, New Orleans could never be safe from the insecurities of early modern capitalism. Its founding was part of a larger plan by a Scottish adventurer named John Law to float a land development scheme in connivance with the French government.

Burdened by debts from the wars of the recently deceased Louis XIV, the French hoped Law’s financial legerdemain would ease their financial burdens. Law’s bubble collapsed when the pestilential truth of his venture (New Orleans was plagued by malaria, yellow fever, and other semitropical diseases) reached Paris, but the settlement named for the underage Louis XV’s regent, the duc d’Orleans, remained. Joined by other French settlements in Biloxi (in what is now Mississippi) and upriver in St. Louis, New Orleans became a substantial port with a large mixing of the peoples of the Caribbean and the larger Atlantic world.

The Crescent City—so called for the bends of the Mississippi—thus began its life at a crossroads of cultures, commerce, and imperial aspiration. The city was never peaceful. It lay on the borders of the French and Spanish empires in the Americas and was eyed by the British. Though France would lose New Orleans to Spain as part of the larger Louisiana territory in the Seven Years’ War, French language, French culture, and French architecture left a permanent mark on the multiple cultures of the city.

After the conclusion of the Seven Years’ War in 1763, a layer of Spanish culture added to the diversity of the city’s population. France gained possession once again through political chicanery in 1800, but when Napoleon’s plans for restoring France’s empire in the Americas failed, he offered it to the United States as part of the Louisiana Territory. President Thomas Jefferson jumped at the chance to add millions of acres of fertile land to the nation.

Both France and Spain had brought slaves to New Orleans. It became a major center of the slave trade. French and Spanish law allowed for relatively easy manumission if the master desired, and a class of mixed-race freemen and freewomen soon plied crafts and trades in the city. When the city changed hands in 1803, the Americans, French, and Spanish descendants were living alongside not only a large African American population, but also the hard-to-define group of mixed heritage and ancestry that some have called Afro-Creoles. Partly descended from slaves imported to work the docks and the plantations of sugarcane and later cotton, they lived both among and apart from their fellow residents.

As a result of a shortage of European women, many French colonial men took slaves as their partners. At the so-called quadroon balls (a quadroon was a person of one-quarter African American ancestry), freemen could form liaisons without condemnation. The offspring of these unions sometimes became free and inherited property. French- and Spanish-ruled New Orleans adopted a congeries of racial distinctions to classify this population, some of which were enshrined in law and some of which remained custom.

These concepts of racial divisions divided New Orleans, like the rest of the Louisiana Territory, into a caste system. Free persons of either sub-Saharan African descent—or, more likely, mixed ancestry—could and did own property, businesses, and sometimes slaves. They constituted an elite in and of themselves, self-conscious and proud. Their music and literature expressed a distinct New Orleans culture. Within the framework of culture, custom, and law, Louisiana’s free people of color, known in French as the gens de couleur libres or Afro-Creoles, formed their communities explicitly sneering at the ruder ways of the plantation slaves, the snobbery of the master class, and the rough culture of the riverboat men just a few days’ journey upriver. Many had received educations as far away as France or Spain. They spoke French fluently and were proud of their heritage. They often sued in the courts to make sure they were not classified as Negro. Their identity separated them and made great difficulties for anyone attempting to apply hard-and-fast categories to the ethnically diverse population of New Orleans.

When New Orleans passed into American hands with the Louisiana Purchase in 1803, a new set of legal relationships caused complications for every property owner, including the United States. (The federal government claimed a portion of the batture, the elevated levee around the city.) The city and the state retained aspects of French and Spanish law in its civil code, but the city’s commerce tied it to a nation that followed the English common law and the U.S. Constitution. Both of these were far harsher when it came to slavery than the French and Spanish traditions—indeed, during the French Revolution, the estates general had ended slavery in the French colonies, something that would not happen in New Orleans until the Thirteenth Amendment in 1865.

The economic importance of the city was obvious to its American rulers. Driving that boom in trade, finance, and general movement of people and goods was the expansion of the Cotton Kingdom made possible by Eli Whitney’s cotton gin. The Connecticut Yankee’s invention could process even the sticky, embedded seeds of the short-staple cotton. Thus, cotton production, and the slavery that went hand in hand with it, could spread to the uplands of the slave South, eventually reaching the Black Belt—the region of the Deep South with the fertile, black earth so essential to sustaining the ravenous cotton plants. The heavy bales of cotton could then be carried down the Mississippi by steamboat, offloaded at New Orleans, and then loaded on to ships bound for Britain and New England’s textile mills. This trade, along with the sugar trade of the bayou plantations, made the city one of the richest in the world.

Slaves performed the heavy lifting that made the system go. New Orleans under American rule once again became a major slave trading site. When the overseas trade in slaves ended in 1808, slavers continued to sneak bondmen and bondwomen into the city from the Caribbean and Africa. As with the rest of the slaveholding states, color was the badge of slavery: the darker the skin, the greater the presumption that a man, woman, or child was chattel, personal property. Slaves in New Orleans had greater freedom of movement than slaves upriver or on the bayou sugar plantations, but slaves in the city were still someone else’s property and could be sold, purchased, inherited, leased, punished, and sent away from family and friends at the whim of their masters. Again, these classifications of human beings as a form of chattel—that is, movable property—were inextricably linked with concepts of race. Part justification, part explanation, race classifications allowed one group of people to control the hopes, aspirations, fears, and futures of another people. Even when slaves had lived in America for three generations, they remained less human (in the eyes of the law) than newcomers.

In areas like southern Louisiana, where African American slaves greatly outnumbered free persons, the master class feared slave revolts. By the early nineteenth century, slave states had refined their “slave codes” to prevent such uprisings. Slaves were not to bear arms, prepare or administer medicines, go about at night, gather in groups of more than three, or offer offense to any white person. Extensive law enforcement mechanisms policed this suspect population. Patrols formed out of the state militias policed the slave quarters. Governments had special powers to deal with slave conspiracies, and special provisions of law allowed for torture and summary whippings of those deemed suspect. Hostile even to those of color who were not slaves, these societies existed in a permanent armed state. Indeed, the Second Amendment guarantee of the right to own and bear arms reflected the felt needs of a white population surrounded by the enslaved.

These measures did not prevent slave uprisings. One of the largest took place on a Mississippi River sugar plantation just north of New Orleans. In January 1811, four slaves named Kook, Uamana, Henry Kenner, and Charles Deslonde (names that demonstrated how diverse the slave population was) led hundreds of slaves in a march down the riverside toward the city. A hastily assembled force of militia, local whites, and other slaves met and defeated the rebels in pitched battle. Although that event was never duplicated, the whites of southern Louisiana lived in fear of its repetition. That fear echoed in their laws and their attitudes long after slavery itself was gone.

Alongside the laws defining slavery lay social conventions of racism. These carried the seeds of prejudice far beyond the Deep South. The minstrel shows wherein white performers blackened their faces, allowing them to tell crude stories and sing lewd lyrics, included stock negative stereotypes. The Sambo, whose stupidity was matched by his desire to avoid work; the Mammy, a bossy dispenser of bad advice and large helpings of unhealthy food; the Pickaninny, whose silliness and lack of common sense constantly created trouble for herself and those around her—these stereotypical figures delighted minstrelgoers both in the North and the South, and hid the tragedy of slavery. Last but not least at the minstrel show was Jim Crow. The character was introduced by the noted minstrel performer Thomas “Daddy” Rice, whose awkward, rhythmic dances and ribald songs evoked a crippled, elderly slave. Though the performers created these stereotypes to match their audiences’ expectations, these tropes also reinforced and perpetuated these social constructions. Hardly a person throughout the United States would not have encountered these ideas, not only about the existence of race, but the inveterate characteristics of the disparaged population.

Another feature of the American takeover of New Orleans was segregation based on color. Public accommodations like restaurants and hotels simply would not offer service to those they perceived as colored. The arrival of streetcars in the 1830s gave the impetus for state-mandated segregation in 1835. What schools there were already were segregated, but the “star cars”—set aside for Negroes and indicated with large, white stars on their sides—became for the Creoles of color the symbol for their oppression.

Despite the arrival of a far less tolerant regime, the free Creole population did not disappear or give up its values, identity, and concept of how they should be treated in the new New Orleans even as the lighter skinned among them served in the slave patrols, passed for white, and took part in the newly divided society. They continued to teach their children pride in their culture, run their businesses according to their customs, and participate in public life in such celebrations as Mardi Gras. Visiting the city, Northern traveler Frederick Law Olmsted found that the Creoles held themselves to be better men than the mean-faced Irish and the narrow-minded German immigrants just off the boat. Racist ideas were not confined to white folks in New Orleans. Immigrants, particularly German “redemptioners,” were pouring into the city, adding one more layer to its culture.

While the opening of the Erie Canal led New York City to surpass New Orleans as a financial and commercial center, the people of the Bayou State formed an exceptional polity within the diverse region that was the antebellum South. Their extraordinarily complex population divided on issues of race but still managed to form a functioning society—until the Civil War.

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Early in the war, a combined naval and land force took the city, and for the rest of the war, New Orleans was occupied by Union troops. It was one of the first areas to deal with the vital questions surrounding what was to be done with the rebelling areas after the conflict. Confederates, particularly those of the upper classes, greatly resented the occupation. The commanding general of the occupying forces in 1862, Benjamin Butler, responded to their provocative and insulting behavior with strong measures (gaining the nickname “Beast”). But Butler had strong views about slavery and the master class. In the first days of the war, he had allowed runaway slaves safe haven in Union lines, a policy preceding President Abraham Lincoln’s on emancipation and to some extent forcing Lincoln’s hand.

New Orleans’ Afro-Creole or gens de couleur libres population complicated the issue even more. They took up arms in the Louisiana Native Guards and become the first people of color to serve in the U.S. armed forces. What was more, the Guards took part in the extraordinarily bloody campaigns to extend Union control upriver, taking a great many casualties in the process. This population saw itself both as the natural leadership of a free Louisiana and as a people apart. But we cannot view what was happening locally in isolation. Insofar as national politics greatly affected what happened in New Orleans, our gaze must shift to the debates in Washington, D.C., in particular presidential and party politics.

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Initially, President Abraham Lincoln took a cautious approach on how to deal with the territory federal forces occupied. This policy, which eventually became the basis of Presidential Reconstruction, owed its mild treatment of regions in rebellion as well as its noncommittal position on what to do with slaves to several factors. As later presidents and presidents before him dealing with a major political crisis, Lincoln had one eye on military necessity and the other on coalitional governance. Lincoln’s Republican Party was now predominant in both houses of Congress as a result of the departure of the Confederate states’ delegations, but the Republicans were far from a unified group. These fissures ranged from overall ideology to the specifics of how to treat the Confederate areas, and they would survive the war only to grow in significance.

The traditional way to break down the Republican Party’s factions is into three parts: the conservatives, the moderates, and the radicals, based not by accident on their attitudes toward slavery. In some ways this reflected the Grand Old Party’s origins as a conglomeration of conscience Whigs, Free Soilers, and American Party or Know-Nothing adherents. What united this diverse group of men from throughout the free states of the North and West was their opposition to the expansion of slavery. According to one noted historian, the political organization that formed in Michigan in 1854 cobbled together an ideological appeal to the free state white men based on the concepts of “free labor, free men.”

Both a harkening back to the Jeffersonian ideal of the yeomanry and the political program of Alexander Hamilton, the Republicans defined themselves as a truer reflection of the real nation. They adopted the protective tariff, internal improvements program, and sound money stand of the Whigs, and stood in opposition to the Democrats’ marriage of labor in the North to the slaveholding societies of the South. As a result, ideologues like Senator Charles Sumner of Massachusetts sat side by side politically with more practically minded men like William Seward of New York and Lyman Trumbull of Illinois, and fiscal conservatives like William Pitt Fessenden of Maine. Though moderates in the party might sympathize with the plight of African Americans, they were not inclined to risk their own political fortunes at home for them. Conservatives had no interest in African Americans except as the vital labor force of the South, which produced the cotton for Northern mills and provided a market for Northern manufacturers, farmers, and financial services. In order to lead this diverse group, Lincoln had to tread carefully, lest his legislative agenda be derailed along with his ability to wage the war.

Military necessity was also a considerable factor in Lincoln’s treatment of occupied areas and populations like New Orleans. The border states—Missouri, Kentucky, and Maryland—were all slave states. They provided not just manpower, resources, and strategically important staging areas for the Union cause; they also lent a legitimacy to the effort it would not have otherwise had. Their presence, albeit in the case of Maryland at the very least reluctant, as slave states let the nation and the world know that this was a rebellion or civil war, rather than a war of Northern aggression or a war between the states, or, worse, the war for Southern independence—all labels that people used or would use to describe the conflict.

What should also not be ignored is the considerable influence that the perception of Southern unionism had on Lincoln and others. Looking at the way the conventions adopted the articles of secession, Lincoln and a considerable number of people outside of the rebelling areas concluded there was a large, possibly predominant in some places, sentiment against the “fire-eaters” who were driving the secession movement. The Radicals’ call for liberating the slaves, much less their desire for granting them full rights and land, would alienate this supposedly sympathetic group. Therefore, at Lincoln’s insistence, potentially revolutionary mea...