by Williamjames Hull Hoffer. Lawrence, KS: University Press of Kansas, 2012. 224 pp. Cloth $34.95. ISBN 978-0-7006-1846-0. Paper $19.95. ISBN 978-0-7006-1847-7.
Reviewed by Barry N. Sweet, Department of Political Science and Philosophy, Clarion University of Pennsylvania.
A discussion of Plessy v. Ferguson is a component of any introductory course on American government. A more thorough examination of the case is necessary in an upper level course on civil liberties and rights. Generally the basic facts of the case are covered. The students are informed that it was a test case, Homer Plessy was selected specifically because of his ancestry, the case established the “separate, but equal” doctrine, and Harlan’s dissent is notable. However, there is so much more that can be told about this landmark case. Hoffer has produced an accessible and informative book that will enable instructors and students to more completely understand the factors leading up to Plessy v. Ferguson, the social and political zeitgeist of the time, and the enduring legacy of the case.
In Chapter One the setting for the case’s development is presented. To understand the social and political environment of New Orleans in the 1890s, one first has to know the history of the city itself. Hoffer succinctly and effectively covers the history of New Orleans from the arrival of the first French settlers in 1718 to the end of Reconstruction. The cultural and ethnic diversity of the city is an important part of the story. The period of French and Spanish rule brought slavery and the slave trade to New Orleans, and a sizable population of persons of mixed ancestry developed. This group is sometimes referred to as Afro-Creoles. New Orleans became part of the United States as a result of the Louisiana Purchase. The American political and legal regime was less tolerant of New Orleans’ ethnic/racial diversity and made the institution of slavery even more brutal. Because of New Orleans’ location and strategic importance, it was quickly taken and occupied during the Civil War.
The presence of Union troops did not bring an immediate end to slavery. The policy approach to the handling of slaves and the Afro-Creoles was a confluence of many variables. The attitudes toward race and slavery of the Union commanders in the field played a role. Military expediency and broader political concerns also were factors. Following the Civil War President Johnson implemented a limited Reconstruction policy. All that Johnson asked of the people he put in charge of the Southern states was that they recognize that slavery was over. Oppressive “Black Codes” were put in place, and individuals were classified as either white or Negro. The unique history and role of the Afro-Creoles was not recognized. Johnson’s policies quickly clashed with those of the Republican controlled Congress. Johnson’s veto of the Civil Rights Act of 1966 was overridden, the Fourteenth [*99] Amendment was ratified, and impeachment followed passage of the Tenure of Office Act. The Democrats then successfully used political violence and terror to suppress African American and Republican voter turnout in the South in the 1876 election. As a consequence the Democrats won the popular vote; however, Rutherford B. Hayes won the presidency, after agreeing to pull federal troops out of the South, effectively ending Reconstruction.
Chapter Two discusses the social and political milieu of the Separate Car Act. The chapter starts by first detailing the Post-Reconstruction Democratic takeover of Southern politics and Louisiana in particular. Next, the chapter covers a lot of material quickly, such as the Supreme Court’s weakening of the Fourteenth and Fifteenth Amendments, the continued expansion of segregation, labor unrest, immigration, ethnic violence, the economic transformation of the South, and the struggle to maintain a lottery in Louisiana in the face of rising religious fundamentalism. The controversy surrounding the lottery legislation seemed to divert attention from the Separate Car Act as it worked its way through the legislature. Hoffer indicates that there is little in the legislative history or newspaper accounts on the origins of the legislation. Louisiana was not a pioneer when it came to separate car legislation; four other Southern states had already enacted such legislation. Six other states, mostly Southern, quickly followed suit. African American groups formed to fight the legalization of segregation. Afro-Creoles took the lead in initiating litigation against the segregation law in Louisiana. This was not surprising given that Afro-Creoles tended to have greater means and educational attainment. Of particular interest is Hoffer’s discussion of the formation of the Citizens’ Committee to challenge the Separate Car Act, the selection of Homer Plessy and Daniel Desdunes as plaintiffs, the fund raising, and the selection of legal counsel. Desdunes was the plaintiff in a test case challenging the interstate application of the Separate Car Act, while Plessy was the plaintiff in the intrastate challenge.
Chapter Three is an exhaustive discussion of the litigation strategy used by Plessy’s attorneys to get in front of the United States Supreme Court. Before getting to Plessy’s case, Hoffer explains what happened to the Desdunes test case challenging the interstate constitutionality of the Separate Car Act. Louisiana District Judge John H. Ferguson dismissed the charge against Desdunes, relying on an earlier Louisiana Supreme Court case to hold that the Separate Car Act did not apply to interstate trains. Plessy was then arraigned before the same judge. Plessy’s lawyers argued that the Separate Car Act was unconstitutional as a violation of the Thirteenth and Fourteenth Amendments. The lawyers argued that the discretion given to the train conductor when enforcing the law made it too arbitrary. They also argued that the law violated the equal protection clause. Ferguson ruled against Plessy, indicating that a conductor’s decision could be reviewed in a court of law. He also ruled that the equal protection clause was not violated because the law specifically required that the races be treated equally when separated.
Hoffer next provides a detailed review of [*100] Louisiana Supreme Court Justice Charles E. Fenner’s opinion upholding Ferguson’s decision. Plessy’s lawyers appealed the Louisiana Supreme Court decision to the United States Supreme Court. The lawyers on both sides of the case secured counsel in Washington, D.C. to help argue the case. Hoffer provides extensive detail of the briefs prepared by the attorneys and their corresponding legal arguments. While he generally commends Plessy’s attorneys for their efforts, Hoffer laments that Plessy’s attorney’s did not make the argument that race does not exist, and consequently, the states cannot classify people and treat them differently based on race. Hoffer states that Plessy, and litigants like him, were not seeking equal treatment for races, but “equal treatment as individuals.” Hoffer states these litigants “were seeking the abolition of race in America. Their lawyers’ inability to escape the racial concepts of the time was largely inevitable, but it was also a disservice to their clients and, in a larger way, to the country” (p.108). It certainly would have been a wonderful development had race as a concept been abolished in 1896. More recent Supreme Court justices have indicated that the abolishment of race as a concept should be a goal. In Bakke, Justice Blackmun famously said, “In order to get beyond racism, we must first take account of race.” In Bollinger v. Grutter, Justice O’Connor suggested we needed to take race into account for twenty-five more years. To be fair, Blackmun and O’Connor were indicating the need to use race for inclusion, rather than exclusion. Nonetheless, race as a concept is still used for inclusion and exclusion, one hundred and seventeen years after the Plessy decision. Hoffer may be setting the bar too high for Plessy-era civil rights attorneys.
Chapter Four covers the justices on the U.S. Supreme Court at the time and their opinions in the case. Hoffer provides a brief biography of the eight participating justices, including information on the politics of their appointments. This is useful information and helps our understanding of the Court’s decision making. This reviewer often relies on a source like Henry J. Abraham’s Justices, Presidents, and Senators for this type of information. Hoffer’s inclusion of this information in his book is convenient and efficacious. He provides the most detail on the two opinion writers, Justice Henry Billings Brown for the majority and John Marshall Harlan, the sole dissenter, for the minority. The typical reader will most likely know at least something about Justice Harlan; therefore, the brief biography on Justice Brown probably will be more enlightening. Hoffer notes the unexpected irony of the positions taken by these two justices in this case. Justice Brown, a lifelong Republican, in fact a founding member of the party, originally from Massachusetts, upheld the Separate Car Act. Justice Harlan, a former slaveholder from a border state, elegantly argues for equality and the end of racism. Hoffer’s short biographies help to explain this unexpected divergence. Hoffer traces Harlan’s transformation from his political affiliations in the 1850s as a Whig, his campaigning for George McClellan in 1864, to his becoming a Republican by the 1870s. We learn that Justice Brown had many Democratic friends and even dined with Jefferson Davis after the Civil War while serving on the circuit court in Memphis. In the remainder of [*101] Chapter Four, Hoffer critiques the majority and minority opinions in Plessy and surveys the response in some of the contemporary newspapers. The editorial pages generally reflected the regions from which they came.
Chapter Five discusses the immediate aftermath of Plessy and its eventual demise. Hoffer makes clear that segregation was already a fact of life in the South, but Plessy allowed the South to greatly expand what had already been started. The degradations and horrors of segregation are well cataloged. Furthermore, racist attitudes and laws were not limited to those of African descent, but extended to those of Asian descent. Hoffer includes a discussion of how Hollywood spread and reinforced racial stereotypes in movies up into the 1950s. However, the Plessy decision did provide an avenue to attack segregationist laws. Plessy had allowed segregation on the presumption that equal treatment and facilities were being provided. Hoffer indicates that the courts, at least facially, initially assumed equality of treatment was provided because that is what the statutes required. Nonetheless, even a casual observer could see that conditions seldom approached equality. The NAACP formed in 1909 and continued the legal fight for equality. The litigation strategy of focusing on the fact there was not real equality of condition began to bear fruit in the 1930s. The leadership and roles of Charles Hamilton Houston and his protégé Thurgood Marshall, are covered. The early victories against segregation came in the area of education, specifically with graduate and professional schools. The big wins of Sweatt v. Painter and McLaurin v. Oklahoma State Regents were achieved in 1950. Hoffer attributes the significant shift in American attitudes toward segregation to involvement in World War Two. The Nazi regime was recognized as evil. The similarity between the Nuremberg Laws and Jim Crow caused some introspection. The propaganda battles of the Cold War called for further self-examination and embarrassment, especially over the nation’s segregated capital. Chapter Five finishes with a discussion of the pivotal case of Brown v. Board of Education of Topeka. Hoffer covers the importance of Chief Justice Earl Warren and the fact that Brown did not actually overrule Plessy. Brown essentially ruled that the separate but equal doctrine could not work in the field of public education. “Separate educational facilities are inherently unequal.” Segregation in public transportation was ruled unconstitutional in Browder v. Gayle by a federal district court in Alabama in 1956. The Supreme Court upheld the lower court without issuing an opinion in the same year. Plessy was finally overturned, but it took sixty years.
Hoffer concludes the book with a brief epilogue starting with Barack Obama’s securing of the Democratic nomination over Hillary Clinton. He finishes by telling the reader what happened to some of the key individuals in the Plessy case. A chronology of relevant events, starting with the first law segregating railroads passed in Massachusetts in 1841 and finishing with the election of President Obama in 2008, follows the epilogue. A bibliographic essay follows the chronology. This book is part of series and there is a note indicating that the editors have asked the authors to omit formal citations. The reason for the [*102] omission is to make the books more readable, save costs, and make the books more appealing for a general audience. Hoffer’s book is very readable and therefore should be attractive to a wider audience. The advantage of making the book more readable is somewhat offset by the disadvantage of the reader not be able to determine from where some information came. This reviewer appreciates the desire to make a book more readable, especially for many of today’s students. Nonetheless, occasionally an endnote would have been helpful. On balance the book does a very good job of providing much needed background information on a landmark Supreme Court decision. Instructors of political science and history could easily enhance their class discussions of Plessy v. Ferguson by reading this book. The book would also make a nice supplemental text in an upper level course on civil rights and liberties. This reviewer enjoyed reading the book and believes his students will be better served because of it.
Abraham, Henry J. 2008. Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments from Washington to Bush II. 5th Edition. Lanham, MD: Rowan & Littlefield, Inc.
Browder v. Gayle 352 U.S. 903 (1956).
Brown v. Board of Education 347 v. 483 (1954).
Grutter v. Bollinger 539 U.S. 306 (2003).
McLaurin v. Oklahoma State Regents for Higher Education 339 U.S. 637 (1950).
Plessy v. Ferguson 163 U.S. 537 (1896).
Regents of the University of California v. Bakke 438 U.S. 265 (1978).
Sweatt v. Painter 339 U.S. 629 (1950).
Copyright 2013 by the author, Barry N. Sweet.