Plessy v. Ferguson => 14th Amendment => So Much History

Plessy v. Ferguson

Plessy v. Ferguson was the first major inquiry into the meaning of the Fourteenth Amendment’s (1868) equal-protection clause, which prohibits the states from denying “equal protection of the laws” to any person within their jurisdictions. Homer Plessy, a man who was one-eighth Black, but classified as Black by Louisiana law, refused to leave in order to trigger a case about the legality of segregation. He was brought before the Criminal Court for New Orleans, Judge John H. Ferguson presiding, who affirmed the state law.

The Compromise of 1877 led to the withdrawal of federal troops from the South. Meanwhile the Democrats, then consolidated control of state legislatures throughout the region, effectively marking the end of Reconstruction. The Compromise of 1877 was an informal agreement between southern Democrats and allies of the Republican Rutherford Hayes. It was to settle the result of the 1876 presidential election and marked the end of the Reconstruction era. Southern Black people saw the promise of equality under the law embodied by the 13th, 14th and 15th Amendments to the Constitution receding quickly.

During Reconstruction, the federal government expanded the vote to Blacks in the South, and provided some equal protection to Black citizens. As Reconstruction failed, however, White supremacists began to use violence and intimidation to oppress Blacks. When Whites re-gained control of Southern states, they began to enact laws that oppressed Blacks through segregation and disenfranchisement. Though the 1875 Civil Rights Act had stated that all races were entitled to equal treatment in public accommodations, an 1883 Supreme Court decision clarified that the law did not apply to private persons or corporations.

Confusion about the legality of segregation continued until it was challenged by Homer Adolph Plessy. Plessy v. Ferguson was the first major inquiry into the meaning of the Fourteenth Amendment’s (1868) equal-protection clause. That clause prohibits the states from denying “equal protection of the laws” to any person within their jurisdictions. The majority opinion did not contain the phrase “separate but equal,” but it gave constitutional sanction to laws designed to achieve racial segregation by means of separate and supposedly equal public facilities and services for Blacks and Whites.

The case originated in 1892 as a challenge to Louisiana’s Separate Car Act of 1890. Louisiana law required that all railroads operating in the state provide “equal but separate accommodations” for White and Black passengers. It prohibited passengers from entering accommodations other than those to which they had been assigned on the basis of their race. In 1891 a group of Creole professionals in New Orleans formed the Citizens’ Committee to Test the Constitutionality of the Separate Car Law. They raised $3,000 to mount a formal challenge to the segregation law in Louisiana.

Homer Adolph Plessy, agreed to be the plaintiff in the case aimed at testing the law’s constitutionality, Plessy was of mixed race. He described himself as “7/8 Caucasian and 1/8 African blood.” The Citizen’s Committee wanted to challenge the segregation law in court. So, it alerted railroad officials that Plessy would be sitting in the Whites only car, although he was partly of African descent. The committee chose a moment in history and a place in the city’s economic landscape (the Press Street Railroad Yards) that would most effectively draw attention to their cause.

Every detail of Plessy’s case was strategically planned by the Committee. Attorneys Louis Martinet and Albion W. Tourgée timed the action to coincide with the National Republican Convention in Minneapolis. In addition, the Press Street Wharf, which is located near the Press and Royal Street site, was the busiest wharf in the city of New Orleans. Any attempt to disrupt the order of business there would be sure to be taken seriously. Plessy, a shoemaker, at the corner of Press and Royal streets in New Orleans bought a ticket on a train from New Orleans bound for Covington, Louisiana, and took a vacant seat in a Whites-only car.

After refusing to leave the car at the conductor’s insistence, he was arrested and jailed on June 7th, 1892. He was charged with violating the (1890) Separate Car Act of Louisiana, which mandated separate accommodations for Black and White railroad passengers. One month after his arrest, Plessy appeared in court before Judge John Howard Ferguson. Plessy's lawyer, Albion W. Tourgée, claimed Plessy's 13th and 14th amendment rights were violated. The 13th Amendment abolished slavery, and the 14th amendment gave equal protection to all under the law. Accommodations provided on each railroad car were required to be the same as those provided on the others.

On November 18, 1892, Judge John Howard Ferguson ruled against Plessy. His decision was upheld by the Louisiana Supreme Court. Later, in 1895 Ferguson’s decision was appealed to the Supreme Court of United States as the landmark Plessy v. Ferguson case. After years of trials appeals, on May 18th 1896, the Supreme Court hand down their decision. They held that separate but equal facilities for White and Black railroad passengers did not violate the Equal Protection Clause of the 14th Amendment. When that body upheld the earlier ruling by the Louisiana Supreme Court, the separate-but-equal doctrine became the established law of Louisiana and the foundation for Jim Crow policies throughout the country.

Although the Supreme Court ruled against Plessy, the Citizens’ Committee’s use of the 14th Amendment’s equal protection provision to challenge segregation. This ruling signaled the federal government’s and North’s unwillingness to challenge segregation or the oppression of Blacks in the South. After the 1896 Plessy v. Ferguson decision, segregation became even more ensconced through a battery of Southern laws and social customs known as “Jim Crow.” Schools, theaters, restaurants, and transportation cars were segregated.

Poll taxes, literacy requirements, and grandfather clauses not only prevented Blacks from voting, but also made them ineligible to serve on jury pools or run for office. The Plessy v. Ferguson decision upheld the principle of racial segregation over the next half-century. “Separate but equal” and Jim Crow remained unchallenged until Brown v. Board of Education in 1954 and the Civil Rights Act of 1964.

It marked the first post-reconstruction use of that strategy and it was eventually adopted as the basis for the Civil Rights movements of the 20th century. The Supreme Court in declaring separate-but-equal facilities constitutional on intrastate railroads, ruled that the protections of 14th Amendment applied only to political and civil rights, not “social rights”. In its majority 8-1 ruling, the court denied that segregated railroad cars for Black people were necessarily inferior.

Chief Justice Henry Billings Brown wrote, “We consider the underlying fallacy of [Plessy’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.”

Justice John Marshall Harlan, a former slaveholder from Kentucky was the lone dissenter. Plessy legitimized state laws establishing "racial" segregation in the South and provided an impetus for further segregation laws. It also legitimized laws in the North requiring "racial" segregation, such as in the Boston school segregation case noted by Justice Brown in his majority opinion.

Legislative achievements won during the Reconstruction Era were erased through means of the "separate but equal" doctrine. That doctrine had been strengthened also by an 1875 Supreme Court decision that limited the federal government's ability to intervene in state affairs, guaranteeing to Congress only the power "to restrain states from acts of racial discrimination and segregation". The ruling basically granted states legislative immunity when dealing with questions of "race", guaranteeing the states' right to implement racially separate institutions, requiring them only to be equal.

Despite the pretense of "separate but equal", non-Whites essentially always received inferior facilities and treatment, if they received them at all. The prospect of greater state influence in matters of race worried numerous advocates of civil equality, including Supreme Court Justice John Harlan. Justice John Marshall Harlan, in argued that forced segregation of the races stamped Blacks with a badge of inferiority. Harlan argued in his dissent that segregation ran counter to the constitutional principle of equality under the law: “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,” he wrote. “It cannot be justified upon any legal grounds.”

Harlan's concerns about the encroachment on the 14th Amendment would prove well-founded. States proceeded to institute segregation-based laws that became known as the Jim Crow system. It would not be until the landmark case Brown v. Board of Education in 1954, at the dawn of the civil rights movement, that the majority of the Supreme Court would essentially concur with Harlan’s opinion in Plessy v. Ferguson. The effect of the Plessy ruling was immediate. There were already significant differences in funding for the segregated school system, which continued into the 20th century.

States consistently underfunded Black schools, providing them with substandard buildings, textbooks, and supplies. States which had successfully integrated elements of their society abruptly adopted oppressive legislation that erased reconstruction era efforts. The Plessy v. Ferguson verdict enshrined the doctrine of “separate but equal” as a constitutional justification for segregation, ensuring the survival of the Jim Crow South for the next half-century.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street railroad companies) carrying 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, 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 employees 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 Navigation 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 this court in @ 83 U. S. 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 Railroad Corporation, 4 Met. 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 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 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 everyone 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 as 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 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 and 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, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Kentucky, 107 U. S. 110, 116. 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. Mississippi, 162 U.S. 565.

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 as said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone 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 accommodation 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 a to assert the contrary. The fundamental 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.Com. *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 streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a courtroom 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." Stat. & Const. Constr. 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 coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking 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 liberally, in order to carry out the legislative 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 which that instrument provided for and secured to citizens of the United States; that, at the 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 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."

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 guarantee 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 war under the pretence 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 street 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 objecting, and ought never to cease objecting, to the proposition that citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway. 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 anyone, 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 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 courtroom to consult as to their verdict, such partition, if it be a moveable 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 courtroom happens to be stationary, provision could be made for screens with openings through 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 statute 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 People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee 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 reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

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