Betrayal
Washington Post journalist Steve
Luxenberg has written an important book as to how the “separate but equal” doctrine
was codified by the Supreme Court in 1896 that for all practical purposes legalized
the Jim Crow laws of the South thereby betraying the promise of the 13th,
14th, and 15th Amendments to the Constitution. He tells
this story through the biographies of the dissenting Supreme Court Justice John
Marshall Harlan, the majority opinion writer Henry Billings Brown, the lead
plaintiff attorney Albion Tourgee and the history of the free mixed-race
community that grew up in pre-Civil War New Orleans, of which Homer Plessy was
a member.
The two heroes of the book are Harlan
and Tourgee. Harlan was the slaveholding son of Kentucky’s Whig aristocracy who
while supporting slavery opposed the dissolution of the Union and fought on the
Union side during the Civil War. Tourgee was an Ohio lawyer who fought for the
Union and later became a judge in the Reconstruction South. Massachusetts born Brown, on the other hand,
bought his way out of Civil War service and became a judge in Michigan. Of
special interest is the milieu of the mixed race New Orleans community who
fought with Andrew Jackson in famous battle of New Orleans and how it evolved
over the 19th century.
Plessy v. Ferguson was a set-up case orchestrated
by Tourgee to overturn Louisiana’s separate car rule which kept black people
out of the white’s only cars at the sole discretion of the conductor. How was a
conductor to tell whether a light-skinned Negro was black or white?
Nevertheless that was part of his job. Also of interest is the fact that the
railroads did not like the separate car rule either. It cost them money. As a result
both the Louisville & Nashville RR earlier and later the Eastern Louisiana
RR fully cooperated with Tourgee in causing Plessy’s removal from the whites’
only car to set-up the case. Clearly the railroads, at least in the 1890s, were
not the handmaidens of segregation.
What is remembered today is Justice
Harlan’s famous quote that came out of his ringing dissent: “Our Constitution
is color-blind.” Would that be true today? Luxenberg has written an important
history. To me it was way too detailed and way too long, but at many points he
reveals himself to be a very fine writer.
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