Anniversaries for Dissenters: 102nd Anniversary of Plessy v. Ferguson

On May 18, we mark the 102nd anniversary of Plessy v. Ferguson, the infamous Supreme Court decision which enfeebled the post-Civil War Amendments designed to give freed slaves the rights and duties of American citizenship. The Plessy case marked the formal beginning of an era of legalized discrimination on the basis of race—an era in which we are mired still today.

The Supreme Court held in Plessy that it was perfectly reasonable for a state to racially segregate persons within its jurisdiction. The Court razed all but the most modest constitutional barriers to racist behavior by state and local governments. By making the astounding assertion that black Americans should not take offense at state segregation laws, the Court weakened the Fourteenth Amendment’s requirement of "equal protection of the laws."

One hundred years ago, the American conscience was unburdened of any constitutional need to fight the degradation of segregation, and its separate but unequal treatment of black Americans.

Some fifty years ago, baseball great Jackie Robinson’s broke through the farce of a facade of segregation. An individual effort of excellence, encouraged by private business, shamed Americans into demolition of irrational discriminatory practices.

It would be nice to report a happier ending: racial segregation dead and Jackie Robinson triumphant. But that would be too naive a gloss.

In 1954, just a few years after Robinson earned Rookie-of-the-Year honors for the Brooklyn Dodgers, the Supreme Court declared in Brown v. Board of Education that segregation laws violated the Constitution. Yet this opinion did not truly challenge the flawed principle of the Plessy case. The Brown opinion rested its conclusions on highly dubious psychological testing evidence—segregation made blacks feel bad and therefore become inferior—and not principles of Constitutionalism and human dignity.

Thus the reasonableness standard of Plessy v. Ferguson remains the law of the land: It is still constitutional for government to legislate upon the basis of race, as the vitality and range of racial preference programs, set-asides, and quotas throughout the land reflects. The century-old legacy of Plessy lives on, dividing Americans in as irrational ways as the segregation of baseball did 50 years ago.

The fact remains, we have yet to embrace the famous "color-blind Constitution" standard defended by the sole dissenting justice in the Plessy case, John Marshall Harlan. To quote briefly from his thundering dissent:

"[I]n the eye 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… 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…"

Harlan was not being utopian. He argued that the equality of rights implicit in the rule of law can be a means of making us flawed creatures more reasonable, more civilized. But such rights can be beneficial only to the extent that they are exercised in a color-blind way, that is, devoid of the passion of racial preference.

Consider the example of abolitionist orator Frederick Douglass, America’s greatest black thinker, who died just a few years before Harlan’s declaration of principle. Douglass urged all Americans to renounce racial pride and taught the central significance of character for citizenship. "The only excuse for pride in individuals or races is in the fact of their own achievement," he declared in 1889. To cultivate racial pride is "a positive evil," Douglass said. "It is building on a false foundation."

As we continue to struggle with the flawed policies of racial preference, we need to benefit from the wisdom of dissenters of a century ago. It’s hard to fathom that an equal period of time separates Jackie Robinson—that 20th Century embodiment of the lessons of Frederick Douglass—from the Plessy case and from Americans today. As we debate the issues of preferences in employment, higher education, and distribution of government benefits, we need to apply the lessons of Jackie Robinson. Let us summon and repeat that heroism in both high and modest circumstances today.

Ken Masugi is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University.