by H. W. Brands
The case came before Judge John H. Ferguson of the state district criminal court. Ferguson found for the prosecution, causing Tourgée, on Plessy’s behalf, to appeal to the Louisiana supreme court. As most observers expected, the Louisiana high court upheld the decision, although the court’s reasoning occasioned some surprise. “The sole question involved in this case …,” Associate Justice Charles Fenner asserted for the court, “is whether a statute requiring railroads to furnish separate, but equal, accommodations for the two races … violates the Fourteenth Amendment.” In ruling that it did not, Fenner cited precedents not from Southern or federal courts but from state courts of the North, in particular from two states historically identified with abolitionism. The supreme court of Massachusetts had ruled as early as 1849 that segregated schools were constitutional. That court, answering the claim that segregation perpetuated race prejudice, had declared, “This prejudice, if it exists, is not created by law and cannot be changed by law.” The supreme court of Pennsylvania, in a case quite similar to the present one, involving a law mandating separate railcars for the two races, had decreed, “To assert separateness is not to declare inferiority.… It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix.” Fenner, speaking in the voice of the Louisiana court, said that the law in question applied to the races with “perfect fairness and equality” and noted “if the fact charged be proved, the penalty would be the same whether the accused were white or colored.” Fenner expressed a certain puzzlement as to why the case had come up at all. “Even were it true that the statute is prompted by a prejudice on the part of one race to be thrown in such contact with the other, one would suppose that to be a sufficient reason why the pride and self-respect of the other race should equally prompt it to avoid such contact, if it could be done without the sacrifice of equal accommodations.” Plessy’s appeal was denied.39
That left the United States Supreme Court as the sole hope for overturning the Louisiana law. Martinet and the Louisianans wished to press forward at once. Tourgée and some other civil rights advocates from outside the state hesitated. If the national court reversed the Louisiana decision, well and good. But if the high court affirmed the Louisiana decision, it would legitimize segregation not simply in Louisiana but in every state. The result could be devastating to the cause of racial equality.
Tourgée had a second reason for proceeding slowly. Of the justices currently on the Supreme Court, only John Marshall Harlan could be counted on to oppose the Louisiana law. The other justices engendered no such confidence. “One is inclined to be with us legally, but his political bias is the other way,” Tourgée told Martinet. “There are two who may be brought over by the argument. There are five who are against us. Of these one may be reached, I think, if he ‘hears from the country’ soon enough. The others will probably stay where they are until Gabriel blows his horn.” Tourgée hoped time would change either the makeup of the court or the minds of some of the justices.40
Tourgée put off the appeal as long as he could, but eventually he had to bring it forward or accept defeat by default. The Supreme Court heard the case of Plessy v. Ferguson in the autumn of 1895. Tourgée attacked the Louisiana law at several points. He adopted Justice Harlan’s phrase and logic in saying it branded blacks with a “badge of servitude” and thereby defied the spirit of the Thirteenth Amendment. The law also denied blacks the equal protection promised them by the Fourteenth Amendment, Tourgée said. It failed to define race, leaving this determination to railroad company officials and thereby depriving blacks of due process. It willfully ignored that separate accommodations for blacks would not remain equal accommodations for long in Louisiana (or anywhere in America, for that matter). “When the law distinguishes between the civil rights or privileges of two classes, it always is and always must be to the detriment of the weaker class or race.” The provision allowing black nurses to ride in white cars demonstrated the true purpose of the law, for only so long as blacks were in positions subservient to whites could their presence be endured; otherwise it was insufferable. Governments were established to promote the general welfare and happiness; the Louisiana act, by design, did no such thing. It was “plainly and evidently intended to promote the happiness of one class by asserting its supremacy and the inferiority of another class.” In a sentence that summarized his case and the entire argument against the Jim Crow law, Tourgée declared: “Justice is pictured blind, and her daughter, the Law, ought at least to be color-blind.”41
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THE SUPREME COURT rendered its decision in May 1896. By a vote of 7 to 1, the court upheld the Louisiana law. Associate Justice Henry Billings Brown, writing for the majority, dismissed the contention that the law in any way violated the Thirteenth Amendment. Quoting the majority opinion in the Civil Rights Cases, Brown declared, “It would be running the slavery question into the ground 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.” As to the Fourteenth Amendment, it was indeed written to enforce political equality between the races. “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.” Brown cited the Boston case upholding segregated schools as an example. But the essential weakness—“the underlying fallacy”—of the plaintiff’s argument lay in the contention that enforced separation of the races implied the inferiority of blacks. “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.” Brown asserted that during Reconstruction blacks had held the dominant position in the Louisiana legislature without causing whites to acknowledge their own inferiority. He added, “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.” To think otherwise was to ignore history and human nature. “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”42
John Marshall Harlan’s years of isolation on the court had only deepened his conviction that American jurisprudence was failing American democracy. Harlan was no social leveler. “The white race deems itself to be the dominant race in this country,” he wrote in his solitary dissent. “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 part of that heritage and the essence of those principles was equality before the law. “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 th
e 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 returned to his argument from the Civil Rights Cases, referenced by the counsel for Plessy, that the Thirteenth Amendment barred the imposition of any “badge of servitude,” and he judged that the Louisiana law imposed just such a badge on blacks. But he now placed greater weight on the equal protection and due process clauses of the Fourteenth Amendment. For the state of Louisiana to assert, and the majority of the Supreme Court to accept, that the segregation law was race-neutral was fatuous or deceitful. “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.… No one would be so wanting in candor as to assert the contrary.” Moreover, the Louisiana law deprived members of both races of individual freedom. “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.”
Should the principle of racial discrimination once be accepted, there might be no end to its applications.
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 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?
The present decision recalled one of the worst moments in the history of the court. “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.”
Harlan intended the analogy very seriously. The Dred Scott case had closed the door of democracy to blacks as a people and unleashed the demons of divisiveness in the nation as a whole; the current judgment could have consequences no less dire.
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.… 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.
Harlan couldn’t know how truly he spoke. The resounding decision of the court in the Plessy case drove the final nail in the coffin of racial egalitarianism. The executive branch of the federal government had abandoned blacks in the Compromise of 1877; the legislature deserted them definitively when the Senate rejected the Lodge elections bill in 1891. Now the judiciary turned its back on African Americans who simply wished to exercise rights they had won at such great cost thirty years before. During the Civil War it was possible—for Northerners, at any rate—to conceive of freedom and democracy as marching together toward victory; Lincoln’s Emancipation Proclamation had been followed just months later by his Gettysburg Address, with its stunningly eloquent definition of democracy as government “of the people, by the people, for the people.” But at war’s end the alliance between freedom and democracy began to splinter, as wartime alliances often do. Freedom for blacks—including the freedom to participate in politics and public life—required curtailing democracy for whites; the Fourteenth and Fifteenth amendments were essentially restraints on white majorities disposed to deny political rights to blacks.
The problem of minority rights within majority rule wasn’t unique to Gilded Age America; it is inherent in democracy. But it became acute and undeniable in the United States during the decades after the Civil War, for although the constitutional restraints on the white legislative and practical majorities held for a while, they couldn’t withstand the relentless pressure of personal prejudice and political partisanship. In other respects, Gilded Age democracy was under siege from capitalism; in the matter of race relations, democracy besieged itself.
John Marshall Harlan understood this, and he articulated his frustration in the bitter coda to his Plessy dissent. “We boast of the freedom enjoyed by our people above all other peoples,” he declared. “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.”43
Chapter 17
AFFAIRS OF THE HEARTLAND
During the early 1890s, a problem even older in American history than the race question, and equally intractable, if that were possible, came to a dismal resolution. For centuries the native peoples of North America had turned to prophets when the pressure from whites became irresistible; the most successful—though ultimately futile—campaign of Indian resistance, led by Tecumseh during the War of 1812, had been inspired by Tecumseh’s brother, known as the Prophet, who preached that the bullets of the white soldiers couldn’t penetrate the faith of his followers.
Black Elk remembered the first stirrings of a similar dispensation in 1889. “Strange news had come from the West,” the Sioux seer recalled. “It was hard to believe, and when I first heard of it, I thought it was only foolish talk that somebody had started somewhere. This news said that out yonder in the West at a place near where the great mountains”—the Sierra Nevada—“stand before you come to the big water”—the Pacific—“there was a sacred man among the Paiutes who had talked to the Great Spirit in a vision, and the Great Spirit had told him how to save the Indian peoples and make the Wasichus disappear and bring back all the bison and the people who were dead and how there would be a new earth.” The report prompted some Sioux to travel west to see the holy man for themselves. He had lived among whites long enough to acquire the name Jack Wilson and a basic knowledge of Christianity, but now he employed his Paiute name, Wovoka, and called himself the Messiah. A new world was coming, he said, in which all the dead Indians and dead animals would be restored to life and from which all the living would be excluded, except for those Indians who performed a dance he taught them.
The Sioux returned to Dakota with the news, and all that winter Black Elk’s neighbors could speak of nothing else. In the summer of 1890 several other Sioux made the pilgrimage to Nevada’s Walker Lake, where Wovoka resided. Either the revelation had changed over the winter or it was transmitted more clearly now, for it appeared that Wovoka was the son of the Great Spirit and that he had come to earth long ago and been killed by the Wasichus, who had rejected his teaching. This time he came to the Indians. And the new world would arrive the next spring.
In the autumn of 1890 Wovoka’s dance—the Ghost Dance—caught on among Indians throughout the W
est. Black Elk had lost his vision lately, having spent, by his reckoning, too much time among the whites. But the Ghost Dance brought it back. “I remembered how the spirits had taken me to the center of the earth and shown me the good things, and how my people should prosper. I remembered how the Six Grandfathers had told me that through their power I should make my people live and the holy tree should bloom. I believed my vision was coming true at last, and happiness overcame me.”1
Other Ghost Dancers interpreted their visions differently, and the whites who observed the Ghost Dance from the outside differently still. The federal agents and soldiers posted to the Pine Ridge reservation grew nervous as the cult took hold, not least since some dancers claimed that the special “ghost shirts” they wore rendered them impervious to the white men’s bullets. Among the Sioux, with their record of resistance, battle magic appeared particularly ominous.
General Nelson Miles, commanding U.S. army forces in the West, ordered reinforcements to the Pine Ridge reservation. The troop deployment increased the tension and drew criticism from some of the older hands in the region. Valentine McGillycuddy, a former Indian agent, thought Miles was overreacting. “I should let the dance continue,” McGillycuddy said. “If the Seventh Day Adventists prepare their ascension robes for the second coming of the Savior, the United States Army is not put in motion to prevent them. Why should not the Indians have the same privilege? If the troops remain, trouble is sure to come.” But Miles ignored the advice, preferring to take still stronger action. Sitting Bull lived at Pine Ridge and even yet commanded a following. Lest he become a nucleus of armed resistance, Miles ordered him arrested.
