Circa1865

No Equality Other Than Political

Mr. Justice [Henry] Brown, after stating the facts in the forgoing language, delivered the opinion of the court in Plessy v. Ferguson, 163 U.S. 537 (1896)

“This case turns upon the constitutionality of an act of the general assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. (Acts 1890, No. 111, p. 152).

The constitutionality of this act is attacked upon the ground that it conflicts with both the Thirteenth Amendment, which abolished slavery and involuntary servitude, except a punishment for crime, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of States.

One: That it conflicts with the Thirteenth Amendment abolishing slavery . . . is too clear for argument. In the Civil Rights cases, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot justly be regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, property cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears. ‘It would be running the slavery question into the ground,’ said Mr. Justice [Joseph P.] Bradley, “to make every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in matters of intercourse or business.”

A statute which implies merely a legal distinction between the white and colored races, and which must always exist so long as white men are distinguished form the other race by color, has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand [why] the Thirteenth Amendment is strenuously relied upon by the plaintiff in this connection.

Two: the object of the Fourteenth 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 upon color, or to enforce social, as distinguished from political, equality, or a comingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of one race to the other, and have been generally, if not universally, recognized as within the competency of the State legislatures in the exercise of their police power.

We consider the underlying fallacy of the plaintiff’s argument to consist of 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 the reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.  The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced comingling of the two races. We cannot accept this proposition.

If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

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. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

(www.statesrightsjournal.com, accessed April 24, 2004)