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After the Civil War, the South enacted black codes to keep their former slaves under tight control. For example, some states prohibited blacks, who were not a party to a suit, from testifying in court. Others subjected blacks to criminal penalties for breaching labor contracts. In contrast, whites were only liable in a civil suit for the same action. To strike down these black codes, the nation passed the Fourteenth Amendment, which prohibits states from denying "to any person within its jurisdiction the equal protection of the laws."

During the years that followed, the Supreme Court attempted to define the parameters of equal protection. In Strauder v. West Virginia (1879), the Court struck down the murder conviction of the petitioner, a colored man, because the state only permitted "white males who are twenty-one years of age and who are citizens of this State" to serve as jurors. The Court found that the state denied the petitioner the equal protection of the laws because it compelled him "to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race." The Court added, "The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others."

In 1896, the Court was presented with another opportunity to hear an equal protection case. This time, the petitioner challenged a Louisiana statute, which prohibited persons from occupying seats in railway coaches, "other than the ones assigned to them, on account of the race" to which they belong. Persons violating this statute may be subject to a fine or imprisonment.

Separate But Equal
On June 7, 1892, Homer Plessy, a 30-year-old shoemaker, boarded a passenger train of the East Louisiana Railway and took a seat in the "white" railcar. When he refused a conductor's orders to move to the "colored" railcar, Plessy was forcibly removed and jailed. Plessy argued that the Louisiana statute violated, among others, the Fourteenth Amendment to the Constitution. After the state courts found the railcar statute to be constitutional, Plessy petitioned the United States Supreme Court, which upheld the lower court rulings.

In the majority opinion, Justice Brown distinguished between political and social equality. The Justice explained that the purpose of the Fourteenth Amendment was only "to enforce the absolute equality of the two races before the law," and not to enforce social equality or "a commingling of the two races upon terms unsatisfactory to either." Moreover, "[l]aws permitting, and even requiring, their separation, in places where they are liable to be brought into contact," such as with the establishment of separate white and colored schools, 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 . . . ." Accordingly, "[w]hen the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed."

Lone Dissenter
The lone dissenter, Justice John Harlan, declared, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." He then predicted that "[t]he sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race."

Justice Harlan concluded by condemning the majority opinion. "In my opinion, 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."

While the majority opinion did not use the phrase "separate but equal," it effectively approved of legally enforced segregation as long as the law did not make facilities for blacks inferior to those of whites. This "separate but equal" doctrine soon extended to other areas of public life, such as restaurants, theaters, restrooms, and public schools. It was not until 1954, in another landmark case, Brown v. Board of Education, that the Supreme Court finally closed this disgraceful chapter in American History.


The Full Supreme Court Opinion

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