Lesson 1.6 · Unit 1 · CA HSS 11.1.4
How the promise was dismantled, and the dissent that answered it
Between 1877 and 1900 the guarantees of the Reconstruction amendments were reduced to almost nothing across the South. This lesson traces how, and ends on the single most important dissenting opinion in American constitutional law.
- Reconstruction ended politically in 1877, when federal troops were withdrawn from the South following the disputed presidential election of 1876.
- Redemption is the name southern Democrats gave to their recapture of state governments, achieved through organized violence, fraud and intimidation.
- The Supreme Court narrowed the amendments repeatedly: the Slaughterhouse Cases in 1873 gutted privileges or immunities, and the Civil Rights Cases in 1883 held that the Fourteenth reached only state action, not private discrimination.
- Segregation was built by statute, not merely by custom: separate railcars, schools, waiting rooms, hospitals and cemeteries, enacted across the South from the 1880s.
- Plessy v. Ferguson, 1896, upheld a Louisiana separate railcar law and supplied the doctrine of separate but equal that governed for fifty-eight years.
- Lynching enforced the system outside the law, and Ida B. Wells documented and analyzed it statistically from 1892, at enormous personal risk.
- Harlan's dissent in Plessy rejected the majority's reasoning entirely and was vindicated in 1954, which makes it the best available demonstration that the majority's argument was answerable at the time.
Where students lose marks: describing segregation as southern custom. It was law, upheld by the Supreme Court, backed by violence, and permitted by a federal government that had the constitutional authority to stop it.
The source. Plessy v. Ferguson, 163 U.S. 537 (1896), majority opinion by Justice Brown and dissent by Justice Harlan. A work of the United States federal government, public domain.
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.
Harlan, dissenting. The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. 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. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
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?
Step one: state the majority's central move. It concedes that the separation might be felt as a badge of inferiority and then relocates the cause: if it feels that way, that is because the colored race chooses to construe it so. The injury is attributed to the perception of the injured party.
Step two: name why that move is unanswerable on its own terms. It makes the law's meaning depend on the intention of the legislature as the Court describes it, while discounting the effect on the people subject to it. Any discriminatory law can survive if its victims' experience of it is treated as their own interpretation.
Step three: test the claim against the facts of the case. Homer Plessy was seven eighths white and selected by a civil rights committee precisely because he could pass as white; he had to announce his ancestry to be arrested. A law that requires the subject to declare his race in order to be excluded is not responding to a natural distinction, which undercuts the majority's premise.
Step four: analyze the second majority passage. Legislation is powerless to eradicate racial instincts. This concedes that the law is responding to prejudice and then treats prejudice as a fact of nature that law should accommodate rather than confront. The Court is declining a role it has the authority to take.
Step five: identify what Harlan concedes before he dissents. He says the white race is dominant in prestige, achievement, education, wealth and power, and adds "and so it is". He is not denying the social reality, which makes what follows stronger rather than weaker.
Step six: state Harlan's actual argument. Whatever the social facts, the Constitution recognizes no ruling class and no caste, so the law may not enact a hierarchy even where society contains one. That distinction between social reality and legal recognition is the whole of the dissent.
Step seven: note that Harlan answers the majority's own prediction. The majority says legal equality will accentuate difficulties. Harlan replies that nothing is more certain to arouse race hatred than statutes proceeding on the premise that some citizens are too degraded to share a railcar. They are making opposite empirical predictions, and the following six decades tested them.
Step eight: state why the dissent matters historically. It proves the majority's reasoning was answerable in 1896 by a sitting justice using materials available then, so Plessy cannot be excused as the inevitable product of its era. When the Court reversed itself in Brown in 1954, it was adopting a position that had been on the record for fifty-eight years.
Questions 1 to 5 are recall. Questions 6 to 10 ask for reasoning.
- What ended Reconstruction politically, and when?
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The withdrawal of federal troops from the South in 1877, after the disputed 1876 election
- What did the Civil Rights Cases of 1883 hold?
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That the Fourteenth Amendment reached only state action, not private discrimination
- What doctrine did Plessy establish, and for how long?
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Separate but equal, which governed for fifty-eight years until 1954
- Who documented lynching statistically, and from when?
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Ida B. Wells, from 1892
- Quote Harlan's most famous sentence.
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Our Constitution is color-blind, and neither knows nor tolerates classes among citizens
- Explain the majority's central move and why it is so powerful.
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The Court concedes that separation may be felt as a badge of inferiority and then says that if so, it is because the colored race chooses to construe it that way. The injury is relocated from the law to the perception of the person injured. It is powerful because it is unfalsifiable: any discriminatory law survives if the experience of those subject to it counts as their own interpretation rather than as evidence of what the law does. It blames the victim's perception, which makes any discriminatory law defensible
- How do the facts of Plessy's own case undercut the majority's reasoning?
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Homer Plessy was seven eighths white and was chosen by a civil rights committee precisely because he could pass as white. He had to announce his ancestry in order to be arrested. A law requiring its subject to declare his race before it can be applied is not tracking a natural or visible distinction, which contradicts the majority's premise that the statute merely recognizes differences that exist. The case was designed to expose exactly that. He had to announce his ancestry to be excluded, so the distinction was not natural
- What does "legislation is powerless to eradicate racial instincts" concede?
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That the law is responding to prejudice rather than to any legitimate public purpose. Having conceded that, the Court treats prejudice as a fact of nature the law should accommodate, and warns that trying to change it will make things worse. That is the Court declining a role it plainly had the constitutional authority to take, since the Fourteenth Amendment exists precisely to constrain what states may do to people within their jurisdiction. That the statute serves prejudice, which the Court then treats as natural
- Why is Harlan's concession about white dominance a strength rather than a weakness?
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Because it removes the easiest rebuttal. Had he denied that white Americans held dominant power, wealth and education, the majority could dismiss him as detached from reality. Conceding the social fact and insisting that the Constitution nonetheless recognizes no caste separates the question of what society is from the question of what the law may enact. That distinction is the whole of the dissent, and the concession is what makes it visible. Conceding the social fact isolates the legal question, which is his point
- Why does the existence of Harlan's dissent matter for judging Plessy?
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Because it proves the majority's reasoning was answerable in 1896, by a sitting justice, using only the constitutional materials available then. Plessy therefore cannot be defended as the inevitable product of its era or excused on the ground that nobody thought otherwise. Somebody on the Court did, in writing, and when the Court reversed itself in Brown in 1954 it adopted a position that had been on the record for fifty-eight years. It shows the decision was answerable at the time, so the era does not excuse it