Thursday, April 19, 2018

Slavery to Reparations

Making Blacks into Foreigners

Excerpted from: Kunal M. Parker, Making Blacks Foreigners: The Legal Construction of Former Slaves in Post Revolutionary Massachusetts, 2001 Utah Law Review 75-124, 75-84 (2001)(116 Footnotes Omitted)

How might one conceive of African-American history as U.S. immigration history, and with what implications for our understanding of immigration itself? The historiography of U.S. immigration has been heavily invested in producing an idea of immigrants as individuals who move from "there" to "here," with both "there" and "here" taken to be actually existing territorial entities. Even a cursory inspection of the titles of vastly different immigration histories--Oscar Handlin's The Uprooted: The Epic Story of the Great Migrations that Made the American People, Ronald Takaki's Strangers from a Different Shore: A History of Asian Americans, and Roger Daniels' Coming to America: A History of Immigration and Ethnicity in American Life--testifies to the centrality of spatial movement in historians' understanding of immigration. Over the years, African-Americans have been represented differently depending upon the kinds of spatial movement that immigration historians have elected to valorize.

Until recently, African-Americans tended to fare poorly within the historiography of U.S. immigration because of the weight immigration historians placed on voluntarism in spatial movement. As it emerged in the 1920s, the "Whiggish" historiography of U.S. immigration celebrated the figure of the immigrant as an individual who "chose" to move from "there" (the Old World) to "here" (the New World) in search of freedom, opportunity, and so on. Not surprisingly, this construction of the figure of the immigrant completely erased the African-American experience from immigration histories. Although subsequent immigration histories dropped the awkward "Whiggish" focus on the immigrant's quest for freedom and opportunity, the emphasis on voluntarism in movement persisted. Most immigration histories displayed a certain discomfort with representing the African-American experience as an immigrant experience.

Under the pressures of liberal multicultural inclusiveness, there has been in recent years a concerted scholarly attempt to link African-American history to U.S. immigration history by underplaying the requirement that an individual move voluntarily from "there" to "here" in order to qualify as an immigrant, and by emphasizing the simple fact that African-Americans moved from "there" (Africa) to "here" (the New World). This fact--the brute fact of spatial movement--is taken to be the key to representing African-Americans as bona fide immigrants. Thus, in his general overview of the history of immigration to the United States, Roger Daniels represents African-Americans as immigrants by asserting that "the slave trade was one of the major means of bringing immigrants to the New World in general and the United States in particular." In other words, while contemporary immigration historians have abandoned the focus on voluntarism in movement, which is an entirely salutary advance in our understanding of immigration, they have retained a view of immigration as a spatial movement from "there" to "here."

It is relatively easy to trace this specific linking of African- American history to U.S. immigration history to the pressures of liberal multicultural inclusiveness. Ideologues of liberal multiculturalism have placed immigration--understood as a spatial movement from "there" to "here"--at the heart of what they view as a robust American multiculturalism. For example, in a tract entitled What it Means to Be an American, Michael Walzer asserts:

This is not Europe; we are a society of immigrants, and the experience of leaving a homeland and coming to this new place is an almost universal "American" experience. It should be celebrated. But the celebration will be inauthentic and hypocritical if we are busy building walls around our country. Whatever regulation is necessary--we can argue about that--the flow of people, the material base of multiculturalism, should not be cut off. In this rendering, immigration--described in resolutely voluntaristic terms as "the experience of leaving a homeland and coming to this new place"--is viewed as the "material base" of a thriving American multiculturalism. Immigrants bring distinctive cultural identities with them when they move from "there" to "here." Not surprisingly, if African-Americans are to participate on equal terms alongside others in a multicultural order founded upon immigration, they must also claim--or have claimed for them--"the experience of leaving a homeland and coming to this new place." This is something that a focus on the brute fact of African- Americans' movement from Africa to the New World--their lack of voluntarism in this movement notwithstanding--can readily accomplish.

The problem with this particular linking of African-American history to U.S. immigration history is that it simply reproduces the dominant historiographical view of immigration as a spatial movement of individuals from "there" to "here." In so doing, it completely misses the highly significant ways in which African-American history can compel a radical rethinking of immigration itself. Through an examination of a fragment of African-American history--the debates surrounding the proper legal construction of emancipated slaves in the context of poor relief administration in late eighteenth century Massachusetts--this Article attempts just such a rethinking.

At this juncture, one might well ask why it is at all necessary to rethink the dominant historiographical view of immigration as the spatial movement of individuals from "there" to "here." After all, this view of immigration has a venerable lineage, sits comfortably with celebrations of liberal multiculturalism, and corresponds to our sense of what immigration is "really" all about. I would argue that such a rethinking is imperative because this view of immigration fetishizes territory in ways that feed into, and ultimately enable, pernicious contemporary renderings of the problem of immigration, the solution to the problem of immigration, and, perhaps most important, influential legal-theoretical justifications of the solution to the problem of immigration.

The contemporary American state's construction of both the problem of immigration and its solution reveals the extent of this fetishization of territory. Within official discourses and practices, the problem of immigration is that unwanted immigrants come "here;" the solution to the problem lies in keeping unwanted immigrants "there." Accordingly, the state devotes a significant portion of its energies to erecting fences to keep potential immigrants out, to patrolling its territory to weed out immigrants who have entered without its permission, to restricting resident immigrants' access to welfare on the theory that others will be discouraged from coming, and so on.

But the fetishization of territory also underpins influential legal- theoretical approaches to immigration that justify the contemporary American construction of the problem of immigration and its solution. Within these approaches, precisely because the immigrant is imagined as moving spatially from "there" to "here," the immigrant's claims upon the community--whether these consist of claims to enter and remain within the territory of the community or claims upon the resources of the community once within the territory of the community--might safely be deemed inferior, less deserving of recognition, or more susceptible to rejection.

It is worth exploring how the sense of the immigrant as one who moves spatially from "there" to "here" translates into the conviction that the immigrant's claims upon the community are susceptible to rejection. For the most part, we are not dealing here with explicit, crude, or vulgar nationalist arguments that might be dismissed out of hand. Rather, essential to this act of translation is the sense that the immigrant comes "here" as one who is already a member of an actually existing, legally recognized, territorial community. Unlike members of the community "here" who have no other community in which to turn, immigrants can always go "there" if refused admission "here;" always draw upon resources "there" if denied claims upon resources "here;" and always participate "there" if barred from participating "here." The possibilities assumed to be available to the immigrant "there"--typically, the country from which the immigrant comes--permit, sanction, and otherwise enable us to mark the immigrant's claims "here" as inferior to the claims of citizens.

Of course, given the vast resource differences that exist among the various countries in the contemporary world, any sense of comfort that we derive from knowing that immigrants can always levy claims upon their countries of origin is suspect. Nevertheless, this sense of comfort continues quite persistently to animate both the constitutional law of immigration and influential theoretical approaches to immigration. It rests upon some sense of the formal, legal equivalence of territorial states. In a world carved up into actually existing, mutually exclusive, and legally equivalent territorial states--a world in which memberships and places are represented by passports, all of which look alike, even if the memberships and places they represent do not--it remains possible to refuse the immigrant's claims uponthe community on the ground that every immigrant carries some passport that represents some country, a real place where the immigrant can levy his claims, even if everyone knows that those claims are likely to be frustrated there.

The idea that immigrants' claims upon the community might be refused at will on the ground that immigrants are citizens of another country has always informed the constitutional law of immigration. Within the register of the "plenary power doctrine" that underpins the constitutional law of immigration, the refusal of immigrants' claims has often adhered to the following logic. Precisely because immigrants are citizens of other countries, in all matters involving immigration, courts may safely transpose the redress of immigrants' claims from the realm of constitutional law to the realm of foreign relations. In this latter realm, the countries to which immigrants belong may be expected to take up immigrants' grievances with the United States. Accordingly, in Chae Chan Ping v. United States, a late nineteenth century case widely viewed as having inaugurated the "plenary power doctrine," the United States Supreme Court rejected the plaintiff's constitutional challenge to the first Chinese exclusion laws inter alia on the ground that China--the country to which the plaintiff belonged--could argue on the plaintiff's behalf in the arena of government-to-government relations. Other examples of judicial invocations of the protections that immigrants allegedly derive from their countries of origin as a basis for denying their claims in American courts of law could be cited, but are unnecessary for present purposes.

This constitutional abdication of responsibility for safeguarding immigrants' claims upon the community finds its analogue in influential theoretical approaches to immigration that derive comfort from the fact that immigrants come from some other country in order to justify their representation of immigrants' claims upon the community as inferior. First, proceeding from the view that "[t]he primary good that we distribute to one another is membership in some human community," Michael Walzer has famously argued that territorially constituted communities--by which he means countries--are not morally bound to admit strangers into their territory because their own associational activities take precedence over strangers' claims to admittance. However, the fact that Walzer assumes everyone to possess membership in "some human community" betrays his conviction that strangers refused admittance have some country to which they can return. This conviction is then further revealed in Walzer's recognition that the claims of refugees might be entitled to special consideration precisely because they have no country to which they can return: "Might not admission, then, be morally imperative, at least for these strangers, who have no other place to go?" Second, at the opening of her work on American citizenship, Judith Skhlar asserts that immigrants' claims for recognition of their historic suffering are less deserving of her attention than the claims of natives precisely because immigrants come from other countries: "The history of immigration and naturalization policies is not, however, my subject. It has its own ups and downs, but it is not the same as that of the exclusion of native- born Americans from citizenship." The idea here is that because immigrants--unlike natives--come from somewhere else, a real place where they can levy their claims, the claims of natives to citizenship take precedence over the claims of immigrants to citizenship. Finally, Peter Schuck argues that immigrants who fail to naturalize reveal a lack of commitment to American civic life that ultimately robs their welfare claims of legitimacy. In his view, immigrants' welfare claims are marked as inferior precisely because immigrants cling to the countries from which they come. As suggested by these legal-theoretical approaches to immigration, the understanding of the immigrant as one moving in space from "there" to "here"--with both "there" and "here" imagined as actually existing territorial entities--becomes critical to justifying a denial of the immigrant's claims "here." The fragment of African- American history explored in this Article seeks to challenge this understanding of the immigrant.

In late eighteenth century Massachusetts, the system of poor relief administration came closest to regulating what we recognize today as immigration; it sought to secure territorial communities against the claims of outsiders. Within this system, just as under contemporary immigration regimes, individuals were seen as moving in space from "there" to "here. " "There" and "here" were taken to be actually existing territorial entities, typically towns. The fact that an individual came from some town community ("there") became critical to how the town community he had entered ("here") would deal with his claims. Legal responsibility for the recognition of the individual's claims lay with the town community from which he came; accordingly, an individual's claims could be refused "here" because they could be made--indeed properly belonged--"there."

As they emerged from slavery in the late eighteenth century, African- Americans threw this entire system into a crisis. While they had been slaves, African-Americans had been the legal responsibility of their masters. As subjects of claims, enslaved African-Americans were thus invisible to the town communities in which they lived and worked. When they emerged from slavery, however, African-Americans suddenly surfaced as subjects of claims who came from no place in particular; there was simply no actually existing territorial entity upon which to pin the legal responsibility for their support. African- Americans were "here" without having come from "there."

How were the claims of these new subjects to be handled? While racial ideology had everything to do with how the claims of African-Americans were handled, this racial ideology acquired significant form through a strategy, the logic of which was determined within the framework of a system of poor relief administration that rested upon a view of individuals moving in space from "there" to "here." In entirely brazen attempts to refuse legal responsibility for the claims of former slaves, town communities sought to represent former slaves as "foreigners;" they assigned "foreign" geographic origins to former slaves. Former slaves thus came to be represented as coming from territorial entities outside Massachusetts, typically from a place called "Africa," so that town communities would not be burdened with the legal responsibility of recognizing their claims.

The problem that African-Americans emerging from slavery posed for the system of poor relief administration--and the geographic origins that town communities assigned to former slaves in order to deal with the problem--exposes the fetishization of territory underlying the dominant understanding of immigration as a process of spatial movement from "there" to "here." From it, we can draw two important conclusions. First, the fact that immigrants move in space from "there" to "here"--such that the problem of immigration and its solution come to be imagined in territorial terms--might not be the critical fact about immigrants. If the African-American experience in late eighteenth century Massachusetts is taken as a guide, the problem with immigrants is revealed to be not so much the fact that they simply show up "here," but the fact that they emerge at given moments as legally visible subjects of claims on what we might think of as a "landscape of claims." This landscape of claims does not necessarily correspond to the territory of the community. It corresponds rather to the public register within which individuals arelegally recognized (and thus become legally visible) as subjects of claims upon the community. As long as they were slaves--and thus the legal responsibility of their masters-- African-Americans did not pose a problem to the town communities in which they lived and worked. This was precisely because they were legally invisible on the landscape of claims. African-Americans became a problem for town communities-- communities they had physically neither left nor entered--only once they were no longer slaves, no longer the legal responsibility of their masters, and thus legally visible on the landscape of claims.

Understanding the problem of immigration as one of managing immigrants' legal visibility on the landscape of claims--rather than as one of managing territorial boundaries--draws attention to the role of the state in constantly making immigrants legally invisible on the landscape of claims. Understood this way, keeping immigrants outside the territorial boundaries of the community appears to be only one--albeit an extremely important one--among various strategies of rendering immigrants legally invisible as subjects of claims. Other viable strategies include resolutely maintaining millions of immigrants in a state of "illegality" so that they do not dare articulate claims upon the community, simply refusing to recognize "legal" immigrants' claims for welfare, and so on.

Second, and more important, the state's invocation of the immigrant's coming from an actually existing territorial entity outside the territorial boundaries of the community as a basis for refusing the immigrant's claims upon the community is revealed with breathtaking clarity as the pure effect of a prior desire to refuse the immigrant's claims upon the community. Although African- Americans had in fact come from slavery, town communities assigned them geographic origins outside Massachusetts--in a place called "Africa"--with a view to representing them as "foreigners" who were the legal responsibility of "somewhere else." The object was purely to deny legal responsibility for former slaves. This assignment of geographic origins to African-Americans should be read not as underscoring a basic mismatch between former slaves and the immigrant who "really" comes from "somewhere else," but rather as underscoring the politics routinely underlying the construction of the "somewhere else" from which the immigrant supposedly comes. The point is that the state invokes immigrants' origins in some place outside the community when--and insofar as-- this invocation serves to justify refusing the immigrant's claims upon the community. If there is an acceptance that the state invokes the "there" from which immigrants come to justify its refusal of immigrants' claims--which is not to deny that immigrants do "in fact" come from outside the territorial boundaries of the community--there might at least be a revision of influential theoretical approaches to immigration that uncritically invoke immigrants' places of origin as a basis for justifying a refusal of their claims upon the community.

There have, of course, been some attempts to link African-American history to immigration history through a focus on the legal construction of free blacks, most notably in the extremely valuable work of Gerald Neuman. In his excellent survey of immigration restriction in the early Republic, Neuman describes (1) the ways in which several antebellum states, both free and slave, barred the entry of free blacks and (2) the ways in which the slave states sought to compel free blacks to leave slave territory on pain of incurring more or less horrific penalties, including re-enslavement. However, Neuman operates with precisely the territorially-driven understanding of immigration as a spatial movement from "there" to "here" that this Article eschews. For his purposes, "a statute regulates immigration if it seeks to prevent or discourage the movement of aliens across an international border, even if the statutealso regulates the movement of citizens, or movement across interstate borders, and even if the alien's movement is involuntary." Not surprisingly, Neuman does not seek to advance our understanding of immigration through an exploration of African-American history in the way that is attempted here. By contrast, historians who have written about the free black experience in the antebellum United States have for the most part focused on themes such as race, the preservation of slavery, and so on without seeing the free black experience as a particular species of immigrant experience that might afford a critique of the pernicious fetishization of territory that underlies the contemporary construction of immigration.

It should be pointed out at this juncture that this Article cannot pretend to capture the full complexity of the African-American experience of emancipation in late eighteenth century Massachusetts. Fortunately, it is possible to refer the reader to Joanne Melish's brilliant intellectual, social, and cultural history of the "problem of emancipation"--and the corresponding development of racial ideology--in late eighteenth century New England. Among other things, Melish argues convincingly that, decades before the full-scale emergence of the colonization movement, the successfully realized desire to rid New England of slavery was accompanied by the less successfully realized desire to rid New England of those who had formerly been slaves. White New Englanders were never able to remove black New Englanders from their midst. However, they were able to enact their rejection of black New Englanders in all sorts of ways; the attempt to assimilate emancipated slaves to the legal status of "foreigners" was one such way. . .

. Associate-Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. This Article was written while I was a Visiting Research Fellow at the American Bar Foundation (1999-2000). Earlier versions of this Article were presented at the Speaker Series at the American Bar Foundation (Spring 2000) and the Annual Conference of the Law and Society Association (May 2000). I would like to thank (1) the audiences at the American Bar Foundation and the Law and Society Association Annual Conference for their reactions to the Article and (2) Nicholas Blomley, Indrani Chatterjee, Ruth Herndon, Bonnie Honig, Ritty Lukose, Patricia McCoy, Mae Ngai, Joanne Melish, Annelise Riles, James Sidbury, Christopher Tomlins, and Leti Volpp for their comments on earlier drafts of this Article. I would also like to acknowledge both the financial support of the American Bar Foundation and the Cleveland- Marshall Fund and the research assistance of William Knox. Special thanks go to the personnel of the Massachusetts Archives (especially Stephanie Dyson) and to Elizabeth Bouvier of the Massachusetts Supreme Judicial Court Archives.

. To avoid any confusion, I should make it clear that I am not suggesting that historians have written immigration histories that are organized thematically around spatial movement. Rather, I am drawing attention to the fact that spatial movement has featured prominently in historians' understanding of how an immigrant comes to be an immigrant.

Plessy v. Ferguson (1896) (Separate but Equal)

Homer A. Plessy v. John Ferguson, 163 U.S. 537 16 S.Ct. 1138, 41 L.Ed. 256 (May 18, 1896) Overruled by Brown v. Board of Ed. of Topeka, Shawnee County, Kan., U.S.Kan., May 17, 1954


In Error to the Supreme Court of the State of Louisiana.

**1138 *538 This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from **1139 said coach, and hurried off to, and imprisoned in, the parish jail of *539 New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit *540 that he was in any sense or in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.

Attorneys and Law FirmsA. W. Tourgee and S. F. Phillips, for plaintiff in error.

Alex. Porter Morse, for defendant in error.

Plessy Court


Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.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 first section of the statute enacts ‘that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.’

By the second section it was enacted ‘that the officers of such passenger trains shall have power and are hereby required *541 to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.’

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employ‚s of railway companies to comply with the act, with a proviso that ‘nothing in this act shall be construed as applying to nurses attending children of the other race.’ The fourth section is immaterial.

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the **1140 mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate *542 said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,-a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word ‘servitude’ was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the fourteenth amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 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 be justly regarded as imposing any badge of slavery or servitude upon the applicant, but *543 only as involving an ordinary civil injury, properly 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 Bradley, ‘to make it apply to 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 other matters of intercourse or business.’

A statute which implies merely a legal distinction between the white and colored races-a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from 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 that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

*544 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 upon color, or to enforce social, as distinguished from political, equality, or a commingling 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 either 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. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in **1141 which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. ‘The great principle,’ said Chief Justice Shaw, ‘advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.’ It was held that the powers of the committee extended to the establishment *545 of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Com., 107 U. S. 110, 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of *546 color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void.Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment ‘does not invest congress with power to legislate upon subjects that are within the *547 domain of state legislation, but to provide modes of relief against **1142 state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.’

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. ‘If it be a matter,’ said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), ‘respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate passengers, *548 or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.’

A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U. S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King (N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation *549 in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is ‘property,’ in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his **1143 action for damages against the company for being deprived of his so-called ‘property.’ Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side *550 of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the 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. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances *551 is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

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. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. 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 commingling 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. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448: ‘This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.’ 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 *552 or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black **1144 blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

Mr. Justice HARLAN dissenting.

johnHarlanBy the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, ‘by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.’ Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, *553 he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employ‚s of railroad companies to comply with the provisions of the act.

Only ‘nurses attending children of the other race’ are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act ‘white and colored races' necessarily include all citizens of the United States of both races residing in that state. So that 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.

Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise ‘of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.’ Mr. Justice Strong, delivering the judgment of *554 this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: ‘That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?’ So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: ‘Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state.’ So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: ‘The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.’ ‘It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested **1145 in the corporation; but it is in trust for the public.’

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. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the *555 race of citizens when the civil rights of those citizens are involved. 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 every one within the United States.

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. 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. It decreed universal civil freedom in this country. This court has so adjudged. 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. 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. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure ‘to a race recently emancipated, a race that through *556 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 in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.’ 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 towards 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, however well qualified in other respects to discharge the duties of jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307; Virginia v. Rives, Id. 313; Ex parte Virginia, Id. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Com., 107 U. S. 110, 116, 1 Sup. Ct. 625. At the present term, referring to the previous adjudications, this court declared that ‘underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law.’ Gibson v. State, 162 U. S. 565, 16 Sup. Ct. 904.

The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does *557 not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one 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. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental **1146 objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. ‘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.’ 1 Bl. Comm. *134. 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.

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. 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. 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? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road *558 or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? 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? 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?

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. 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? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. 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.’ Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legislative *559 will. 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 the power exists to enact a statute, that ends the matter so far as the courts are concerned. 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.

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. 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. But in 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. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. 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.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word ‘citizens' in the constitution, and could not claim any of the rights and privileges **1147 which that instrument provided for and secured to citizens of the United States; that, at time of the adoption of the constitution, they were ‘considered as a subordinate and inferior class of beings, who had been subjugated by the dominant *560 race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.’ 19 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. 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 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. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. 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. 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? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional 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. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the *561 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. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. 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 street car 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.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, 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.

*562 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. It cannot be justified upon any legal grounds.

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. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,-our equals before the law. The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that **1148 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. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a ‘partition,’ and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the ‘partition’ used in the court room happens to be stationary, provision could be made for screens with openings through *563 which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of 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. 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 prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United 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.

I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of 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. 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 *564 ‘People of the United States,’ for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty 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.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

The Tyranny of the Minority: Jim Crow and the Counter-MajoritarianDifficulty


excerpted from: Gabriel J. Chin and Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter-majoritarian difficulty,, 43 Harvard Civil Rights-Civil Liberties Law Review 65 (Winter, 2008)(353 Footnotes) (Full Article)


GabrielJChinModern constitutional law and scholarship rests on a conceptual mistake: thinking of African Americans as a minority. Scholars and courts routinely characterize African Americans as minorities who, in various ways in the past or present, were discriminated against by a hostile or indifferent majority. Typical is Justice Harlan's reassurance, in his dissent in Plessy v. Ferguson, that “[s]ixty millions of whites are in no danger from the presence here of eight millions of blacks.” Similarly, the famous Footnote 4 of Carolene Products explained that laws affecting “discrete and insular minorities” excluded from “political processes” might be subject to heightened judicial review. But the premise recognized the difficulty: ordinarily, minorities must expect to lose in the political process.

The minority model explains, even justifies, much of African American disadvantage. Even with perfect judicial review and even if all laws had a race-neutral motivation, under the minority model African Americans remain minorities in a majoritarian system. Thus, they must anticipate failure when their interests are at odds with those of the majority. Protection of minorities as to a limited set of fundamental issues or from policies infected with provable bias does not imply that a group outnumbered eight to one will often — or ever — get its way when its preferences diverge from those of the majority. Under the minority model, contemporary African American disadvantage is unfortunate, but not necessarily traceable to a legal violation.

The minority model is factually wrong in a way that has distorted the legal system's understanding of the oppression of African Americans. In the darkest days of Jim Crow, African Americans were a minority nationally, but were a majority in the states where their population was most highly concentrated. In 1880, for example, African Americans were an absolute majority in Louisiana, Mississippi, and South Carolina; and were over 40% of the population in Alabama, Florida, Georgia, and Virginia, making African Americans the largest single voting bloc in those states. Allied with Republican whites, African Americans outnumbered conservatives and earned majority control of the electoral system in many states. Through violence, fraud, and what under currrent understandings of the Fourteenth and Fifteenth Amendments were clearly unconstitutional acts engaged in, not by a white majority, but by a conservative minority, the African American majority was not merely subject to discrimination and segregation, but, far more importantly, was denied its rightful democratic authority.

Recognizing that African Americans had majority political power creates an imperative to rethink segregation and the present condition of African Americans. Jim Crow laws burdened African Americans in ways other than discrimination. The major unrecognized harm that African Americans suffered was the loss of their legitimate domination of the electoral system. African Americans were, indeed, entitled to equal access to whatever schools happened to be available. They were also entitled to decide that educational spending would be 5x instead of x. African Americans were entitled to nondiscriminatory law enforcement and also to the power to decide that, for example, breaking an agricultural contract—a crime invented to keep the freed slaves under the control of the white minority—would not be a crime at all. They could even determine that civil rights violations or fraud against agricultural employees would be punished severely. Under the electoral system contemplated by the Constitution, the African American majority would have shaped educational policy, economic and criminal justice policy, and other aspects of state government in the South.

Recognizing the African American political majority re-opens the question of the consequences of Jim Crow. Under the minority model, disenfranchisement is part of a laundry list of indignities but remains largely symbolic. Disenfranchising Socialists or Libertarians in 2008 would be wrong, but it would not deprive them of many public offices, or significantly change the political system, because they are small minorities. As a majority, however, African Americans were entitled to reshape the states to suit their views of the public good. While in control in the 1860s and 1870s, they implemented policies designed to lead to economic and social advancement: education and protection against discrimination from private actors. If the Constitution had been obeyed and those policies left in place and strengthened, the social advancement that occurred in the twentieth century might well have occurred in the nineteenth, and African Americans might now enjoy the same economic and social status enjoyed by other ethnic groups taking their place in the American community.

Recognition of African American majority status also sheds new light on the Court, its civil rights jurisprudence, and especially the so-called “counter-majoritarian difficulty.” The task of constitutional law, John Hart Ely wrote in Democracy and Distrust, “has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule.” The counter-majoritarian difficulty posits that laws are presumptively legitimate as the fruit of the democratic process and majority will. Judicial interference therefore requires explanation and justification. The modern counter-majoritarian difficulty begins with Brown, “arguably the first explicit, self-conscious departure from the traditional view that the Court may override democratic decisions only on the basis of the Constitution's text, history and interpretive tradition—not on considerations of modern social policy.”

The minority model implies that cases like Plessy v. Ferguson were good-faith if wrongheaded efforts to balance majority rule and minority rights. But if African Americans were a majority, then there was no tension between majority rule and constitutional rights; both pointed towards invalidation of the statute. A close reading shows that in Plessy and other important decisions, the Court knew it was reviewing laws passed by a minority to oppress the majority. Therefore, the fact that African Americans were a majority shows that the modern counter-majoritarian difficulty was preceded by a majoritarian difficulty. What should courts do when reviewing laws not based on the will of the majority but designed to oppress the majority on behalf of a minority?

Recognizing an African American majority means that in Brown and other segregation cases, the Court reviewed policies created by a minority to oppress the majority. The criminal justice cases also often involved African Americans oppressed in the South. When the Court failed to protect African American interests, it did not bow to legitimate majorities; instead, it approved oppression of majorities by a minority. When the Court later invalidated some of these laws, it did not act against the will of the majority; rather, it invalidated laws and policies that almost certainly could not have existed as they did had majoritarian politics operated.

Part I outlines the Minority Model of African American disadvantage. It demonstrates that African Americans are characterized as a minority, and therefore, that under majority rule, African Americans were only entitled to protection with respect to a limited set of interests. Accordingly, their current situation is a combination of a bad starting point, private discrimination, and public policy legitimately oriented to the majority, as well as discrimination cognizable by law. But under the Minority Model, there is no reason to think that all disadvantage results from legal violation.

Part II explains why understanding African Americans as a minority in the Jim Crow era is mistaken. It also explains how African American political control was ended. There was a two stage process: force and fraud cemented in place by constitutional changes designed to ensure permanent African American disenfranchisement.

Part III outlines the practical effects of disenfranchising a controlling majority in a large part of the United States.

Part IV explores the counter-majoritarian difficulty in light of the African American majority.

The Emergence of a Segregated World and the Road to Sweatt

Paul Finkelman

excerpted from: Paul Finkelman, Breaking the Back of Segregation: Why Sweatt Matters, 36 Thurgood Marshall Law Review 7 (Fall, 2010) (193 footnotes omitted)


[Plessy v. Ferguson] set the stage for the total segregation of the South. Starting with Sweatt, in 1950, the Supreme Court would begin to dismantle this world. To understand the revolutionary nature of Sweatt, we must first recall the South's oppressive system of segregation at mid-century. Only then does the drama of Heman Sweatt's quest for a legal education become clear.

In his classic book, The Strange Career of Jim Crow, the great southern historian C. Vann Woodward surveyed the early development of segregation in the South. He quoted a South Carolina newspaper, which in 1898 attacked the growing segregation with an argument of reductio ad absurdum:

If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court-and a Jim Crow Bible for the colored witnesses to kiss. It would be advisable also to have a Jim Crow section in county auditors' and treasurers' offices for the accommodation of colored taxpayers. The two races are dreadfully mixed in these offices for weeks.

But, as Woodward noted, within a few years, except for the Jim Crow witness stand, all the improbable applications of the principle suggested by the editor in derision had been put into practice-down to and including the Jim Crow Bible. This segregation continued to expand for the next four decades.

By 1940, the American South was profoundly segregated. Most Blacks, virtually 70 percent, lived in the South, where segregation was deeply entrenched in the law and culture of the society. In the North, Blacks faced discrimination, sometimes supported by statutes, but usually created by custom and local prejudice. Job opportunities were limited and de facto segregation, often a result of housing patterns and economics, was common, but by this time Blacks were gaining significant access to unionized industrial jobs. Everywhere in the North, Blacks attended public schools and public universities, as well as some of the best private universities. Throughout the North they voted, held public office, participated in politics, and practiced law, medicine, and other professions. Most northern states had civil rights laws on the books, and some had passed fair employment practices acts and other specific bans on race discrimination. Since the Nineteenth Century, Blacks had attended private and public universities and law schools with Whites. While not always treated equally, and almost always facing private prejudice and social slights, Blacks obtained graduate and professional degrees from some of the most elite public and private institutions in the North.

In the South, on the other hand, segregation was virulent and oppressive, and of course that is where seven out of ten Blacks lived. It has been more than half century since the courts and Congress began the process of desegregating America. It is easy to forget how thoroughly segregated America was before Sweatt and Brown, and especially before the passage of the 1964 Civil Rights Act. To understand the revolutionary implications of Sweatt, some descriptions of southern segregation are useful.

When Heman Sweatt sought to enter the University of Texas School of Law, segregation in the South was even more pervasive than it had been in 1900. Virtually every facet of life in the South was segregated. Southern Blacks faced discrimination at every turn in their lives. If born in a hospital, southern Blacks entered the world in a separate hospital; at death they would go to a segregated funeral parlor and then be buried in a segregated cemetery. In 1947, the President's Committee on Civil Rights noted, in the South it is generally illegal for Negroes to attend the same schools as whites; attend theaters patronized by whites; visit parks where whites relax; eat, sleep or meet in hotels, restaurants, or public halls frequented by whites. The report of the Committee noted that this was only a partial enumeration-legally imposed separation of races has become highly refined. This legally required pattern of discrimination led to what the Committee noted was the familiar system of racial segregation in both public and private institutions which cuts across the daily lives of southern citizens from the cradle to the grave. This system of discrimination, the President's Committee noted, brands the Negro with the mark of inferiority and asserts that he is not fit to associate with white people.

Virtually all public and private educational institutions in the South, from nursery school to college, were segregated. The only exceptions were a few small private historically black colleges that occasionally had a white student or two and a few professional schools in the upper South, like the University of Maryland Law School. At the beginning of the century, Kentucky's Berea College had been integrated. In 1904, to stop this breach of southern racial etiquette, Kentucky passed legislation banning private integration, and Berea sued, attempting to remain integrated in the face of laws mandating segregation. The United States Supreme Court upheld Kentucky's law requiring that private colleges be segregated, giving a green light to legally mandated segregation everywhere in the South, even where parties wanted to be integrated.

At the primary and secondary levels the disparity in public expenditures guaranteed that Blacks would have inferior educational facilities. Before the 1940s, almost without exception, white principals, supervisors, and teachers were paid more than Blacks. Classes for Blacks had more children than classes for Whites, schools for Blacks were open fewer days, and the facilities were vastly inferior. The situation in Clarendon County, South Carolina, illustrates the reality of segregated education. The litigation in this county would become part of the consolidated case in Brown. When this case began, the County spent $179 per pupil annually for white children and $43 per pupil for black children. The county had sixty-one school buildings for its 6,531 black students, which were worth $194,575. The 2,375 white students went to twelve different schools, worth $673,850. In this very rural county the schools for Blacks were dilapidated buildings without modern heating or indoor plumbing. Some were plain falling-down shanties.

At the time of Sweatt's suit, some two-score southern cities had at least a few black police officers. But, most southern Blacks still lived in rural areas and small towns, where policing was entirely in the hands of Whites and was often oppressive. Police brutality towards Blacks was the norm, and only the most egregious cases ever reached the federal courts where some relief might be found.

If arrested, Blacks went to segregated jails and, when convicted, to segregated prisons. In Georgia, black and white prisoners were to be kept separate as far as practicable, while in Florida it was illegal for any law enforcement officer to handcuff or chain Blacks and Whites together. Other southern states had similar laws and rules. Segregated facilities meant that black prisoners would face worse conditions than their white counterparts. No matter how bad jail and prison conditions were for Whites, they would always be worse for Blacks. Furthermore, convict leasing and prison labor, including chain gangs, gave county and state officials an incentive to vigorously prosecute all black lawbreakers, because convicts were laborers who could be rented out to various southern businesses or simply provide virtually free labor for the County or State.

In court, Blacks were invariably represented by white attorneys, if they had representation at all. Indeed, the integration of southern law schools, as well as the creation of law schools at existing Historially Black Colleges and Universities (HBCU), were both important for the development of a black bar that would represent black defendants in what was (and in some places remains) a discriminatory criminal justice system. While some white attorneys in this period represented their client with zeal and passion worthy of the fictional Atticus Finch, others were dilatory or worse. In the age before Gideon v. Wainwright, poor defendants were not guaranteed a lawyer in non-capital cases; and thus, many Blacks faced the court system without any formal legal advice or help. They faced white judges and all-white juries. In the deep South, prison often meant laboring on a chain gang or in a rural work camp, where life was truly Hobbesian: brutal and short.

Other public facilities in the South were equally segregated, unless of course the jurisdictions simply did not provide separate facilities. This was true for law schools, other professional schools, and graduate programs in most of the South. Sweatt after all, had to sue to obtain a legal education in Texas, because the state did not provide a law school for Blacks. But higher education was not the only arena where southern states refused to even go through the motions of having separate but equal institutions. For example, Louisiana had industrial schools for young white male offenders, young white females, and young black males. Black female youth offenders were not offered the option of learning a skill or trade in preparation for their rehabilitation. Similarly, between 1934 and 1949, Louisiana created some twenty trade schools for Whites, but did not provide any trade schools for Blacks.

Southern states segregated homes for the aged, orphanages, and homes or institutions for juvenile delinquents. In most southern states, African-Americans with a hearing problem, a mental illness, or tuberculosis went to special institutions for Blacks only. Ironically, state schools for the blind were segregated everywhere in the South, even though, presumably, most of the students could not actually see each other. Louisiana not only required separate buildings to house and educate black and white blind children, but also required that they be on separate grounds. While all these institutions were in theory separate but equal, in practice they were never equal. No matter how bad conditions might be for Whites, they were invariably worse for Blacks.

As the South became industrialized, segregation helped keep Blacks economically marginalized. South Carolina provided $100 fines and up to thirty days imprisonment at hard labor for textile manufactures if their officials failed to follow elaborate rules for racial separations. The law set out in great detail that no company engaged in textile or cotton manufacturing-the most important industry in the State-could allow members

[O]f different races to labor and work together within the same room, or to use the same doors of entrance and exit at the same time, or to use and occupy the same pay ticket windows or doors for paying off its operatives and laborers at the same time, or to use the same stairway and windows at the same time, or to use at any time the same lavatories, toilets, drinking water buckets, pails, cups, dippers or glasses.

Other states had similar rules. Oklahoma, Tennessee, and Texas allowed miners to work side-by-side underneath the ground, but the states required that mines have separate shower facilities and clothing lockers for workers when they emerged from the ground. These laws did more than just humiliate Blacks and remind them of their inferior legal status. The laws also prevented them from advancing in their jobs, or even getting jobs. Separate facilities for Blacks meant that businesses would have to invest more money in their mills, mines, and factories. Where possible, it made greater economic sense simply to hire only Whites, leaving Blacks outside the growing industrial job market.

In 1940, virtually all southern public accommodations were segregated by law. Starting in 1941 the Supreme Court began to reread the commerce clause as prohibiting segregation in interstate commerce. In Mitchell v. United States the Supreme Court ruled that the Interstate Commerce Act prohibited segregation in interstate commerce. The plaintiff in this case, Arthur W. Mitchell, was a U.S. Representative from Illinois-the only Black in Congress-who had purchased a first class ticket to travel from Chicago to Memphis, Tennessee. When the train entered Arkansas he was forced to sit in a segregated, non-first class car. The conductor acted under an Arkansas state law. The Court held that the Arkansas law was an impermissible burden on interstate commerce. The Court reaffirmed this analysis, this time applying it to interstate bus transportation, in Morgan v. Virginia (1946). However, both decisions were rarely implemented and in the deep South, they were simply ignored. Meanwhile, throughout the South all local transportation was segregated. The legacy of Louisville, New Orleans & Texas Railway Co. v. Mississippi meant that trains had separate cars for Blacks, and buses reserved the last few rows for Blacks, always keeping them, symbolically, at the back of the bus. As such they were separate, but never actually equal. Taxis served Whites or Blacks, not both. Waiting rooms at bus stations, train stations, and airports were separate as well, despite the implications of Mitchell and Morgan. The South required that there be separate drinking fountains, restrooms, and elevators, while motels, hotels, bars, restaurants, and lunch counters could serve Whites or Blacks, but never both. At theaters, Blacks sat in separate sections at the back or in the balcony, if they were allowed in them at all. Practice on these issues always varied. While many states mandated separate waiting rooms at train and bus stations, Florida found yet one more way to segregate, separate, and humiliate Blacks, by requiring that railroads also provide separate ticket windows for black travelers.

Beyond public accommodations, schools, and the workplace, everything else was segregated. Southern states banned interracial meetings of fraternal orders, while cities and states followed Birmingham, Alabama's segregation of any room, hall, theatre, picture house, auditorium, yard, court, ballpark, public park, or other indoor or outdoor place. Churches were segregated by custom, or law, or both. Sunday morning was the most segregated moment of the week. Mobile, Alabama had a 10:00 p.m. curfew for Blacks. During the summer, Florida stored textbooks from black public schools in different buildings than those from white public schools. New Orleans, Louisiana segregated its red light district. Texas specifically prohibited interracial boxing, while most cities and towns segregated seating at baseball fields. Local ordinances or customs made it illegal or unlikely that Blacks and Whites would compete against each other in sporting events, but some states made certain this would not happen. Georgia specifically segregated billiard rooms and poolrooms. South Carolina and Oklahoma segregated public parks and playgrounds. In Louisiana, it was illegal for Blacks and Whites to reside in the same dwelling, and the existence of separate entrances or partitions would not be a defense to a charge under this law. Louisiana required separate ticket windows and entrances at circuses and tent shows. The law required that these ticket offices be at least twenty-five feet apart. Oklahoma provided for segregation of the white and colored races as to the exercises of rights of fishing, boating, and bathing as well as to the exercise of recreational rights at parks, playgrounds, and pools. The State authorized the public service commission to require telephone companies . . . to maintain separate booths for white and colored patrons. Even the sacred was not protected from the need of southern Whites to separate themselves from Blacks: Tennessee required that houses of worship be segregated. Texas and North Carolina segregated their public libraries by statute, while other states did not, presumably because they did not imagine Blacks using public libraries. Nevertheless, when Blacks tried to use them, they were either refused access or forced into segregated facilities. Georgia never seemed to tire of finding things to segregate. As such, in its 1937-38 session, the state legislature provided that the names of White and Black taxpayers be made out separately on the tax digest. As Judge William H. Hastie of the Third Circuit concluded, [t]he catalog of whimsies was long. These whimsies, codified by law, reminded Blacks, over and over again, that in the American South, and much of the North, they could not expect equal treatment anywhere in society, even in houses of worship!

Beyond the statutes, the whimsies manifested themselves as customs and extralegal forms of segregation. Woodward was unable to find a statute requiring separate Bibles in courtrooms, but that was the practice everywhere. As Woodward noted, writing in 1956:

[I]t is well to admit, and even to emphasize, that laws are not an adequate index of the extent and prevalence of segregation and discriminatory practices in the South. The practices often anticipated and sometimes exceeded the law. It may be confidentially assumed-and it could be verified by present observation-that there is more Jim Crowism practiced in the South than there are Jim Crow laws on the books.

What the historian Woodward and other scholars of segregation have described, the economist, Gunnar Myrdal observed in the 1940s. His classic study of American race relations, An American Dilemma, detailed the existence of an elaborate system of segregation throughout the American South, as well as less pervasive and systematic, but equally pernicious, forms of discrimination in the North. Myrdal noted that:

Every Southern state and most Border states have structures of state laws and municipal regulations which prohibit Negroes from using the same schools, libraries, parks, playgrounds, railroad cars, railroad stations, sections of streetcars and buses, hotels, restaurants and other facilities as do the whites. In the South there are, in addition, a number of sanctions other than the law for enforcing institutional segregation as well as etiquette. Officials frequently take it upon themselves to force Negroes into certain action when they have no authority to do so.

Significantly, Myrdal followed this description of the South by noting that the Supreme Court prevented, at that time, any federal intervention to stop this discrimination. Myrdal wrote, [a]s long as the Supreme Court upholds the principle established in its decision in 1883 [The Civil Rights Cases] to declare the federal civil rights legislation void, the Jim Crow laws are to be considered constitutional.

In the South, private discrimination was not only legal everywhere, but usually required by law. These laws were supplemented by custom and private business decisions. For example, southern Blacks could usually shop at the same department stores as Whites, but they had to take separate elevators, usually the freight elevators, to the different floors. They might buy the same clothing as Whites, but were usually not allowed to try on the clothing before purchasing it. Financial service institutions in the South, such as banks, often simply refused to let Blacks open accounts or use their services. Banks often refused to extend credit to Blacks, even to military veterans seeking housing loans under the GI Bill of Rights. The denial of such rights underscores, again, the importance of Sweatt in creating greater opportunity of Blacks to attend law school to provide counsel to fight this kind of discrimination. Only with a sufficient number of black lawyers, would it be possible to break down this discrimination, especially where the discriminatory acts violated federal laws.

Segregation was painful and pervasive. The situation for Blacks in the United States was ugly and grim. Rev. Martin Luther King, Jr., in his famous Letter from a Birmingham Jail, described the nature of segregation, as he tried to explain why Blacks could no longer wait for equality:

[W]hen you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children. . . . when you have to concoct an answer for a five-year-old son who is asking, Daddy, why do white people treat colored people so mean?; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading white and colored; when your first name becomes nigger, your middle name becomes boy (however old you are) and your last name becomes John, and your wife and mother are never given the respected title Mrs.; when you are harried by day and haunted by night by the fact that you are Negro, living constantly on tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of nobodiness-then you will understand why we find it difficult to wait.


Transatlantic Slave Trade
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Civil War and Reconstruction
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