Racism and the Law: The Legacy and Lessons of Plessy
Plessy v Ferguson (1897) established racial segregation in American constitutional law for over fifty years and its moral and political legacy lives on, despite attempts in the United States to counter its devastating effects during the last half century.
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RACISM AND THE LAW: THE LEGACY AND LESSONS OF PLESSY
Edited by
GERALD J. POSTEMA Philosophy Department, University ofNorth Carolina, Chapel Hill , North Carolina, U.S.A.
Reprintedjrom Law and Philosophy 16(3),1997
Springer-Science+Business Media, B.~
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 978-90-481-4883-7 ISBN 978-94-015-8977-2 (eBook) DOI 10.1007/978-94-015-8977-2
Printed on acid-free paper
All Rights Reserved © 1997 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 1997. Softcover reprint of the hardcover 1st edition 1997 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner
CONTENTS
GERALD J. POSTEMA / Introduction: The Sins of Segregation
1-24
MARKTUSHNET / Plessy v. Ferguson in Libertarian Perspective
25-38
JAMES W. NICKEL / The Liberty Dimension of Historic and Contemporary Segregation
39-57
FREDERICK SCHAUER / Generality and Equality
59-77
BERNARD R. BOXILL / Washington, Du Bois and Plessy V. Ferguson
79-110
GERALD J. POSTEMA
INTRODUCfION: THE SINS OF SEGREGATION "The fathers have eaten sour grapes and the children's teeth are set on edge." Jeremiah 31:29
Just over one hundred years ago, the United States Supreme Court upheld a Louisiana statute mandating segregated railway accommodations. I The Louisiana statute, and others like it passed throughout the Southern United States in the 1880's and early 1890 's, did not create the structure of social, economic, and political segregation of the races. Jim Crow had already been planted deep in the institutions, practices, and laws of Nineteenth Century American life .? Moreover, the "separate but equal" doctrine had emerged in American transportation law through a series of state and federal cases dating already from the 1860's.3 The legislation of the late 1880's secured this social and legal structure and threatened punishment for anyone who challenged it. Thus, in one respect, in upholding the Louisiana statute, Plessy merely made manifest the new form that racism had taken in American life after the demise of slavery. Yet, Plessy marks a significant point in American history because it gave new life to the cancer of racism in the U. S. Constitution and the American public mind, undermining the efforts of the Reconstruction Amendments to cut it out. With the separate but equal doctrine, the system of social, economic and political segregation, subordinating an entire race to the will of another and denying members of that race a full and equal place in the civic life of the nation, was publicly Plessy v Ferguson, 163 u.S. 537 (1896). See C. Vann Woodward, The Strange Career ofJim Crow (Oxford: Oxford University Press, 1966), Charles A. Lofgren, The Plessy Case: A Legal Historical Interpretation (New York: Oxford Univ
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