Law in Jim Crow
"Equal Protection of the Laws"
In the first few years following the Civil War, a United States Congress dominated by Radical Republicans sought to build a more egalitarian new legal framework for American society by passing three monumental amendments to the Constitution.
- The 13th Amendment forever outlawed slavery.
- The 15th Amendment guaranteed all citizens, regardless of race, the right to vote.
- And the 14th Amendment decreed that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Congress' intent in passing these three "Reconstruction Amendments" was clear—to guarantee African Americans, newly freed from slavery, equal treatment under the law.
But it didn't take long for the federal government to begin to pull back from its vigorous defense of Black rights. In 1873, the Supreme Court ruled in the so-called Slaughterhouse Cases that the 14th Amendment's guarantee of equal protection extended only to "privileges and immunities" granted by the federal Constitution, not to those created by individual state laws.
A decade later, the Supreme Court further restricted the 14th Amendment by ruling in Civil Rights Cases that it applied only to discriminatory actions of the government, but not to those of private citizens. So, the federal Civil Rights Act of 1875, which had sought to guarantee Blacks equal access to all "inns, public conveyances on land or water, theaters, and other places of public amusement," was ruled unconstitutional.
Jim Crow Laws
The Supreme Court's narrow interpretation of the 14th Amendment cleared the way for southern states to impose new, discriminatory legal regimes based on segregationist principles.
In 1877, the Union Army ended its military occupation of the defeated old Confederacy. With neither Northern soldiers nor federal judges willing to intervene on their behalf, African Americans soon found themselves under the thumb of Jim Crow. Radical Reconstruction had ended in total failure, its ambitious vision of colorblind democracy relegated to the ash-heap of history for nearly 100 years. Upon the ruins of Reconstruction, Southerners quickly built a new social and legal system designed to ensure white supremacy.
Through the 1870s and 1880s, southern states enacted a series of laws to compel the segregation of white and Black citizens in education, public accommodations, public transport, and even sexual relations. In 1890, the State of Louisiana passed one of those laws—a new statute requiring all railroads to provide separate cars for each race, and banning Blacks from riding in cars reserved for whites (or vice versa).
New Orleans Blacks Resist: The Comité des Citoyens
In New Orleans, African Americans immediately organized in protest. That city's racial hierarchy had long been somewhat less rigid than in the rest of the South, largely due to the longstanding presence in New Orleans of a sizable community of mixed-race, middle-class free Blacks, many of whom spoke French as a first language.
At a time when the overwhelming majority of American Blacks were poor, uneducated, rural laborers, either ex-slaves or the descendants of slaves, New Orleans was home to a large number of relatively affluent, educated, professional Blacks, many of them descended from generations of freemen. New Orleans' proud community of free Blacks wasn't ahout to give in to Jim Crow without a fight.
So, in 1891, a number of the city's leading Black citizens formed the Citizens' Committee to Test the Constitutionality of the Separate Car Law—only they actually called it the Comité des Citoyens, because they mostly spoke French—and began plotting a challenge to the new law. A young Citizens' Committee member named Homer Plessy volunteered to have himself arrested for deliberately breaking the Separate Car Law, hoping that his case would end with the statute being ruled unconstitutional by the courts.
Like Rosa Parks half a century later, Homer Plessy decided to break Jim Crow laws on public transport not on a whim, but instead as a deliberate tactic of civil-rights activism. Unlike Rosa Parks' refusal to move to the back of the bus, however, Homer Plessy's challenge to the Separate Car Law would end in disastrous defeat. Instead of bringing down Jim Crow, Plessy found himself convicted and then defeated in legal appeals at every level of the judicial system.
The U.S. Supreme Court's ultimate 1896 decision in Plessy v. Ferguson—Ferguson was the name of local judge who had presided over Plessy's original conviction—enshrined the Jim Crow principle of "separate but equal" (which meant, in practice, "separate and unequal") as the law of the land for more than half a century.
Homer Plessy's Prearranged Arrest
Homer Plessy was, in many ways, an unlikely standard-bearer for the cause of Black equality. Born in 1863 to free parents, he'd never known slavery. He'd never worked in agriculture, instead supporting himself through artisanal and professional work in New Orleans. At different times, he worked as a shoemaker, a carpenter, and an insurance agent.
His native language wasn't even English. While today we almost always pronounce his name in anglicized fashion as HO-mer PLESS-ee, the man himself used the French pronunciation, more like oh-MARE ples-SEE. Most importantly, Homer Plessy was seven-eighths white—an "octoroon," to use the archaic racial categorization of his own time. With just one African-American great-grandparent, the light-skinned Plessy appeared to be white but was legally defined as Black under Louisiana law. Louisiana, like most states, used the so-called "one drop" rule to categorize citizens by race—anyone with one drop of African blood was classified as Black.
It seems likely that the Citizens' Committee specifically chose Homer Plessy to serve as its test case because of his multiracial ancestry and white appearance. The fact that Plessy didn't look Black would make it easy for him to infiltrate the whites-only car without encountering any resistance, highlighting the arbitrary discrimination of the law.
Surprisingly, perhaps, Plessy and the Citizens' Committee organized their challenge to the Separate Car Law with the complete cooperation of the East Louisiana Railroad. The railroad was less interested in defending white supremacy than in making a profit, and it cost good money to provide separate cars for whites and Blacks on every train while hiring extra workers to enforce segregation. So, when Plessy bought a first-class ticket and boarded the train on June 7th, 1892, the railroad hired a private detective to ride along to make sure that someone was on hand to arrest him.
Plessy's arrival in the "whites only" coach drew no attention—his fellow passengers had no clue that the white-looking gentlemen seated nearby was about to undertake one of the most famous acts of civil disobedience in African-American history. Plessy patiently waited for the conductor to arrive to check tickets, then calmly informed him that he possessed one-eighth African blood but that he had no intention to move to the "colored only" car. Following their prearranged plan, the railroad's special detective took Plessy into custody on criminal charges of violating the Louisiana Separate Car Act of 1890. Plessy spent one night in jail before being freed on bond.
Plessy, the Citizens' Committee, and the East Louisiana Railroad all hoped that the court would vindicate Plessy by overturning the railroad segregation law as unconstitutional. Instead, Judge John Ferguson rejected the Citizens' Committee's constitutional arguments and convicted Homer Plessy for breaking the law. The Louisiana Supreme Court then upheld the verdict, before the United States Supreme Court finally agreed to hear the case in 1896.
Plessy v. Ferguson
The Supreme Court's decision in Plessy v. Ferguson dealt a devastating blow to Homer Plessy and all other African Americans. By a 7 to 1 majority, the justices upheld Louisiana's Jim Crow railroad act, ruling that the 14th Amendment offered no protection to "social rights" and that, "if one race be inferior to the other socially, the constitution of the United States cannot put them on the same plane."
The court explicitly rejected Plessy's argument that segregation was inherently demeaning, taking a gratuitous slap at Jim Crow's victims by describing as a "fallacy" the idea that "the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."
Only one justice, John Marshall Harlan—ironically, a Southerner and former slaveholder—dissented from the majority in Plessy v. Ferguson, recognizing segregation as a "badge of servitude" inherently degrading to Black citizens. "In the view of the constitution," Harlan wrote, "in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 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."
But Justice Harlan's ringing defense of colorblind democracy was at least half a century ahead of its time. In 1896, the overwhelming majority of the American people, like the overwhelming majority of the Supreme Court, did tolerate classes among citizens, and Plessy v. Ferguson guaranteed that Jim Crow laws designed to enforce divisions among those classes would be protected from constitutional challenge.
By so firmly and unambiguously endorsing the logic of segregation in Plessy, the Supreme Court all but encouraged states to pass ever more draconian laws to separate Blacks from whites in all spheres of public life. John Marshall Harlan's more egalitarian interpretation of the law would, eventually, be vindicated—but not until 1954, when the Supreme Court reversed Plessy in Brown v. Board of Education. For the intervening 58 years, Jim Crow would be the law of the land.
"Hain't No Justice"
While Plessy v. Ferguson enshrined Jim Crow principles at the federal level, the particular Jim Crow laws themselves were always imposed by the individual states. In 1876, the Mississippi legislature—the first since Radical Reconstruction to be controlled by Democrats—voted to increase penalties for petty crimes committed in the state.
Under the so-called "pig law," anyone found guilty of stealing a farm animal or any other piece of property worth more than $10 would be charged with grand larceny and sentenced to up to five years in prison. Though the statute applied to all citizens, white police officers and trial judges selectively enforced it.
The same was true for a slew of similar seemingly "colorblind" laws passed throughout the South after Radical Reconstruction. Strict vagrancy statues, for instance, criminalized unemployment and authorized the arrest of any person loitering in public. Like Mississippi's "pig law," vagrancy laws disproportionately impacted African Americans, particularly poor, young Black men. Local authorities usually pardoned jobless whites for appearing idle, disheveled, or both, doling out hefty punishments to Black offenders in the form of exorbitant fines and lengthy jail sentences.
Time and time again, African Americans found themselves singled out for misdemeanors, like trespassing, public intoxication, disorderly conduct, and minor assault, or charged with obscure or nonexistent crimes.
"'Pears to me dar hain't no justice for a man ob my color down yere," a Black prisoner remarked in 1885.40
In the courts, as well, justice eluded Black Southerners, particularly in instances when white citizens leveled the accusations. In fact, the entire Southern justice system—maintained by white police officers, white judges, white prosecutors, white defenders, and all-white juries—shamelessly discriminated against Black citizens.
"A colored man cannot get any charge made against a white man here," Jane and Minnie Evans complained of the legal process in Waynesboro, Mississippi. "They take the colored man and send him to the penitentiary and the law is not executed on the white man at all."41
Echoes of the Past
The Jim Crow judicial system functioned to maintain control over the Black population and in many ways, served as a substitute for the sort of discipline and legal restrictions that had earlier defined slavery.
Also, just as the Black Codes of 1865 and 1866 had served to force former slaves into unfavorable labor contracts with white employers, so too did Jim Crow laws manipulate the lives of Black men and women to the benefit of southern businesses.
In the decades following Radical Reconstruction, Black prisoners flooded state penitentiaries throughout the South a result of discriminatory jail sentences and fines (which, if left unpaid, resulted in imprisonment). Throughout the Jim Crow era, this incarcerated population—mostly young Black men—provided some of the regions largest companies with an army of, essentially, slave laborers.
Worse Than Hell
By the 1890s, the convict lease system had become a major source of labor for Southern employers.
Railroad companies, plantations, sawmills, and coal and iron mines purchased months, or sometimes years, of the service of prisoners, the vast majority of them Black and young (some even in their teens). Employers enthusiastically drew from the local penitentiaries' pool of cheap workers, who could be forced to perform the most difficult, dangerous, or dreadful tasks in deplorable conditions and without rest or sustenance—the sort of awful drudgery that free laborers refused to do. The arrangement was so profitable and served the needs of southern businesses and labor contractors so well, in fact, that it further corrupted the criminal justice system by stimulating increased arrests and convictions of young Black men.
"You may be picked up and put in prison and you haven't committed no crime," Black sharecropper and former inmate Nate Shaw explained, "but if a panel of jurors stand up in court and decide you guilty, you goin' to suffer."42
Detainees, many of them victims of "negro law" and imprisoned for years for petty crimes or misdemeanors, lived each day at the mercy of labor camp officials. Bosses demanded long hours, exposed workers to frost bite, sunstroke, malaria, consumption, and shackle poisoning, deprived workers of water and medical care, and meted out violent punishment for failure to work quickly and efficiently. Prisoners had no choice but to follow orders, even if by obeying they knew they might collapse or die. With a seemingly endless supply of replacement workers pouring into prisons each day, employers could—and did—work convicts to death.
Those who remained in the penitentiaries, or who managed to survive the prison labor camps to return to their cells, found conditions to be little different, and often just as perilous. Most white prison guards, like labor camp officials, had no concern for the wellbeing of their Black charges and assaulted, humiliated, and tormented prisoners at will. Black women inmates endured the same violence and torture, but, in addition, were victims of sexual abuse and rape—usually by guards, but in a few cases, by white prison doctors.43
Bitter Homecomings
Many of the freed, pardoned, and escaped prisoners returned home psychologically maimed, physically damaged, and deeply resentful—even hateful—of the judicial system and the whites who controlled it.
Their families and communities, who treated them not as outcasts to be shamed for their crimes, but as victims who had been crucified for their race, shared in the rage and frustration. These homecomings only reinforced the Black community's sense of vulnerability living within a society dominated and driven by white interests.
For some, like Jane and Minnie Evans, the experiences incited a new urgency to leave the South behind: "We will have to have some protection or else go away from here."44