The Plessy Case: A Legal-Historical Interpretation

by Charles A. Lofgren

In 1896 the U.S. Supreme Court case Plessy v. Ferguson upheld "equal but separate accommodations for the white and colored races" on all passenger railways within the state of Louisiana. In this book, Lofgren traces the roots of this landmark case in the post-Civil War South and pinpoints its
moorings in the era's constitutional, legal, and intellectual doctrines. Set against a backdrop of social flux wherein scientists and social scientists were proclaiming black racial inferiority and lower courts were embracing separate-but-equal in ordinary law suits, the ruling readily became law of
the land. Within this context, a group of New Orleans blacks launched a judicial challenge to Louisiana's Separate Car Law, and carried the case to the Supreme Court, where the resulting opinions by Justices Henry Billings Brown and John Marshall Harlan pitted legal doctrines and "expert" opinion
about race against the idea of a color-blind Constitution. Lasting over half a century, the Plessy decision was overturned in the 1954 Supreme Court case Brown v. Topeka School Board --a case whose reasoning was based on the eloquent dissent by Justices Brown and Harlan. A brilliant look at the
intellectual premises that shaped this important episode in the history of law and race in America, The Plessy Case probes into the dynamics of an issue that still poses troubling questions about racial classification and citizenship in the continuum of legal change.

280 pages, Hardcover

First published January 1, 1987

Reviews

[Bill Tyroler]

Concise yet trenchant discussion of the infamous case that upheld segregated rail transportation, Plessy v. Ferguson. Because the focus is on legal theories and litigation strategies, the book may prove a tough slog for non-lawyers, but that shouldn't deter anyone interested in the case. One of the less-appreciated aspects of the decision is its reliance on the government's "police power," the authority to, in brief, regulate constitutional rights in the interest of public safety, health, welfare, order, etc. That same authority has been, and certainly continues to be, exercised in a multitude of contexts. As David Bernstein observes, in his equally excellent "Rehabilitating Lochner": "... Plessy adopted a broad, deferential understanding of the states' police power ... [which] met with general Progressive approval." (https://www.goodreads.com/review/show...). It's not, then, a simple matter of dismissing Plessy as reflecting the undeniable racism of the times. Rather, it's a matter of the judiciary determining whether, and by what standard, the regulation of a constitutional right is "reasonable." Easy enough in Plessy to justify segregated travel accommodations because it was "reasonable" to regard blacks as socially inferior to whites; and equally important, because appellate review of reasonableness was essentially toothless. We certainly have a much more demanding standard of review today, but it nonetheless remains closer to the Plessy majority than Harlan's dissent (which advocated a "color-blind" constitution, something that assuredly has not taken root). Returning to "The Plessy Case," Charles Lofgren makes just this point ("the Plessy majority ... stood vindicated by the last decades of the twentieth century"). Lofgren had in mind the regime of affirmative action, which has racial classification at its heart. He was writing 30 years ago, but we remain bedeviled by racial classifications and affirmative action still. Which makes the argument in Plessy surprisingly relevant, and Lofgren's treatment fresh.

[Diane Schneider]

A very thorough review of Plessy vs. Ferguson, including the times it was passed in and the effect of the case at the time and going forward. It definitely reminded me of doing my law school homework.