Law of the land

American history, the U.S. Supreme Court, and things that change. Also, 7 other things worth your time.

I don’t know who else would be marking this, but next week will be the 128th anniversary of the day when a man named Homer Plessy bought a first class ticket for the East Louisiana Railway’s No. 8 train, traveling from New Orleans to Covington, Louisiana.

The South was segregated then, and Plessy took a seat in the “whites only” car. This was technically illegal for him. The law considered him “colored,” because only seven of his eight great-grandparents had been white.

A conductor asked his race, and Plessy replied truthfully. The conductor then ordered him to leave the “whites only” car, and Plessy refused. Then, according to a recently reconstructed account:

“Before he knew it, a private detective, with the help of several passengers, had dragged him off the train, put him in handcuffs and charged him with violating the 1890 Louisiana Separate Car Act, one of many new segregationist laws that were cropping up throughout the post-Reconstruction South.”

If you don’t know this story, here’s the twist: Everything about Plessy’s trip was going as planned—even to the point that he spent a night in jail and had to post $500 bail to get out. The whole thing had been orchestrated.

The reason was to create a test case. New Orleans had been a comparatively progressive place after the Civil War, but when white supremacists gained power political in the late 1800s, it all came to end.

So, Plessy’s arrest, set up by a group called the Comité des Citoyens, was designed to challenge the Separate Car Act.

Everybody in the story was involved. The conductor had been tipped off, and the committee had actually paid for the private detective, to ensure that Plessy was charged with breaking the race law—not another crime.

Heck, even the railroad was all aboard (sorry, couldn’t help myself)—not for moral reasons, but because they didn’t want to pay for additional cars to accommodate different races.

Now, if Plessy’s test case sounds a bit like what Rosa Parks did 60 years later in Montgomery, Alabama, it’s true. But, there’s also a sad, key difference: Plessy lost.

He was convicted as planned, lost his first appeal to the state supreme court as planned, and made it all the way to the U.S. Supreme Court as planned.

But then the Supreme Court issued one of the worst decisions in legal history—voting 7 to 1 in Plessy vs. Ferguson to uphold the concept of “separate but equal,” and paving the way for decades of Jim Crow laws and other legal discrimination.

We studied Plessy in law school. I remember wondering how Plessy’s attorneys could have missed heading into a judicial buzzsaw at the high court like that. I’d think they would be leery of creating exactly the kind of negative precedent they wound up with, right?

Having spent some time researching while writing this article, however, I realize two things that give me sympathy:

First, Plessy’s lawyers might have thought they had a likely vote in an associate justice named David Josiah Brewer, who was a “vigorous defender of minority rights,” according to a contemporary law professor.

But they ran into bad luck. Brewer’s daughter became sick (she eventually died), so he had to skip the oral argument to be with her. That in turn left him unable to participate in the final decision.

Next, it also happens that between Plessy’s arrest in 1892 and his Supreme Court argument in 1896, three justices died and were replaced. And the replacements shifted the court much farther toward segregation.

Two of the three new justices who voted in the majority had served in the army and government of the Confederacy during the Civil War. Not that they couldn’t have come around in theory…

But, like I say: judicial buzzsaw.

They say that the Constitution says whatever a majority of the Supreme Court says it says. And at that time, no matter how wrong it seems to us now, and how bad Plessy’s luck might have just happened to be, the court said segregation was the constitutionally protected law of the land. So that’s what it was.

I have a calendar full of quasi-obscure anniversaries like this. It’s basically an idea file with timely hooks: people and things I’d maybe like to maybe write about someday.

In Plessy’s case, I dropped his name into the calendar back in February, planning to write about him, perhaps, on the actual anniversary next week.

But with the intersection of a nation struggling with racism today, well over a century later—and the role of the legal system—it seemed appropriate to visit the story a few days early.

Things do change. Sometimes, though, they change very, very slowly.

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7 other things worth your time

  • President Trump blamed “professional anarchists” for rioting and mayhem in the U.S., and threatened to invoke the Insurrection Act of 1807 to deploy thousands of military troops within the United States. (Atlanta Journal Constitution)

  • The mayor of Louisville fired the city’s police chief after officers killed a local restaurant owner during a protest, and it was revealed they had their body cameras off during the confrontation. (NBC News)

  • Curfews last night throughout the United States: New York City at 11 p.m. Atlanta, 9 p.m. Arizona, 8 p.m., Beverly Hills, 4 p.m., Chicago 9 p.m., Dallas, 7 p.m. D.C. 7 p.m., Los Angeles, 6 p.m., Philadelphia, 8 p.m., Seattle, 5 p.m. (The Hill)

  • A few dozen Facebook employees staged a “virtual walkout” over Mark Zuckerberg’s decision not to take action over some of President Trump’s posts. (The Verge)

  • The UK announces it’s now a violation of law to have sex with anyone who does not live in your household. (Yahoo News UK)

  • A Twitter account that claimed to belong to Antifa, called for violence, and went viral yesterday has instead been identified as a so-called false flag account linked to the white nationalist group Identity Evropa. (NBC News)

  • I don’t usually report the weather here. But given the protests and violence in some places, it’s probably worth looking at the coming heat wave this week: DC on Wednesday will reach 94 Fahrenheit. In Minneapolis, 86. Plus 85 in New York, 94 in Dallas, etc. (The Weather Channel)

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