PLESSY v.
163
MR.
JUSTICE BROWN, after stating the case, delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of
the State of
The first section of the statute enacts "that all railway companies
carrying passengers in their coaches in this State, shall provide equal but
separate accommodations for the white, and colored races, by providing two or
more passenger coaches for each passenger train, or by dividing the passenger
coaches by a partition so as to secure separate accommodations: Provided, That
this section shall not be construed to apply to street railroads. No person or
persons, shall be admitted to occupy seats in coaches, other than, the ones,
assigned, to them on account of the race they belong to."
By the second section it was enacted "that the officers of such passenger
trains shall have power and are hereby required [*541] to assign
each passenger to the coach or compartment used for the race to which such
passenger belongs; any passenger insisting on going into [***7] a
coach or compartment to which by race he does not belong, shall be liable to a
fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of
not more than twenty days in the parish prison, and any officer of any railroad
insisting on assigning a passenger to a coach or compartment other than the one
set aside for the race to which said passenger belongs, shall be liable to a
fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of
not more than twenty days in the parish prison; and should any passenger refuse
to occupy the coach or compartment to which he or she is assigned by the
officer of such railway, said officer shall have power to refuse to carry such
passenger on his train, and for such refusal neither he nor the railway company
which he represents shall be liable for damages in any of the courts of this
State."
The third section provides penalties for the refusal or neglect of the
officers, directors, conductors and employes of
railway companies to comply with the act, with a proviso that "nothing in
this act shall be construed as applying to nurses attending children of the
other race." The fourth section is immaterial.
The information [***8] filed in the criminal District Court charged
in substance that Plessy, being a passenger between
two stations within the State of Louisiana, was assigned by officers of the
company to the coach used for the race to which he belonged, but he insisted
upon going into a coach used by the race to which he did not belong. Neither in
the information nor plea was his particular race or color averred.
The petition for the writ of prohibition averred that petitioner was seven
eighths Caucasian and one eighth African blood; that the [**1140]
mixture of colored blood was not discernible in him, and that he was entitled
to every right, privilege and immunity secured to citizens of the United States
of the white race; and that, upon such theory, he took possession of a vacant
seat in a coach where passengers of the white race were accommodated, and was
ordered by the conductor to vacate [*542] said coach and take a
seat in another assigned to persons of the colored race, and having refused to
comply with such demand he was forcibly ejected with the aid of a police
officer, and imprisoned in the parish jail to answer a charge of having
violated the above act.
The constitutionality [***9] of this act is attacked upon the
ground that it conflicts both with the Thirteenth Amendment of the
Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits
certain restrictive legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished
slavery and involuntary servitude, except as a punishment for crime, is too
clear for argument. Slavery implies involuntary servitude -- a state of
bondage; the ownership of mankind as a chattel, or at least the control of the
labor and services of one man for the benefit of another, and the absence of a
legal right to the disposal of his own person, property and services. This
amendment was said in the Slaughter-house cases, 16 Wall. 36, to have been
intended primarily to abolish slavery, as it had been previously known in this
country, and that it equally forbade Mexican peonage or the Chinese coolie
trade, when they amounted to slavery or involuntary servitude, and that the use
of the word "servitude" was intended to prohibit the use of all forms
of involuntary slavery, of whatever class or name. It was intimated, however,
in that case that this amendment [***10] was regarded by the
statesmen of that day as insufficient to protect the colored race from certain
laws which had been enacted in the Southern States, imposing upon the colored
race onerous disabilities and burdens, and curtailing their rights in the
pursuit of life, liberty and property to such an extent that their freedom was
of little value; and that the Fourteenth Amendment was devised to meet this
exigency.
So. too, in the Civil Rights cases, 109 U.S. 3, 24, it was said that the act of
a mere individual, the owner of an inn, a public conveyance or place of
amusement, refusing accommodations to colored people, cannot be justly regarded
as imposing any badge of slavery or servitude upon the applicant, but
[*543] only as involving an ordinary civil injury, properly
cognizable by the laws of the State, and presumably subject to redress by those
laws until the contrary appears. "It would be running the slavery argument
into the ground," said Mr. Justice Bradley, "to make it apply to
every act of discrimination which a person may see fit to make as to the guests
he will entertain, or as to the people he will take into his coach or cab or
car, or admit to his concert or theatre, [***11] or deal with in
other matters of intercourse or business."
A statute which implies merely a legal distinction between the white and
colored races -- a distinction which is founded in the color of the two races,
and which must always exist so long as white men are distinguished from the
other race by color -- has no tendency to destroy the legal equality of the two
races, or reestablish a state of involuntary servitude. Indeed, we do not
understand that the Thirteenth Amendment is strenuously relied upon by the
plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are made citizens of the
United States and of the State wherein they reside; and the States are
forbidden from making or enforcing any law which shall abridge the privileges
or immunities of citizens of the United States, or shall deprive any person of
life, liberty or property without due process of law, or deny to any person
within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention of
this court in the Slaughter-house cases, 16 [***12] Wall. 36, which
involved, however, not a question of race, but one of exclusive privileges. The
case did not call for any expression of opinion as to the exact rights it was
intended to secure to the colored race, but it was said generally that its main
purpose was to establish the citizenship of the negro; to give definitions of
citizenship of the United States and of the States, and to protect from the
hostile legislation of the States the privileges and immunities of citizens of
the United States, as distinguished from those of citizens of the States.
[*544] The object of the amendment was undoubtedly to enforce the
absolute equality of the two races before the law, but in the nature of things
it could not have been intended to abolish distinctions based upon color, or to
enforce social, as distinguished from political equality, or a commingling of
the two races upon terms unsatisfactory to either. Laws permitting, and even
requiring, their separation in places where they are liable to be brought into
contact 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 [***13] legislatures in the exercise of
their police power. The most common instance of this is connected with the
establishment of separate schools for white and colored children, which has
been held to be a valid exercise of the legislative power even by courts of
States where the political rights of the colored race have been longest and
most earnestly enforced.
One of the earliest of these cases is that of Roberts v. City of
Laws forbidding the intermarriage of the two races may be said in a technical
sense to interfere with the freedom of contract, and yet have been universally
recognized as within the police power of the State. State v. Gilbson, 36
The distinction between laws interfering with the political equality of the
negro and those requiring the separation of the two races in schools, theatres
and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100 U.S. 303, it was held that a
law of West Virginia limiting to white male persons, 21 years of age and
citizens of the State, the right to sit upon juries, was a discrimination which
implied a legal inferiority in civil society, which lessened the security of
the right of the colored race, and was a step toward reducing them to a
condition of servility. Indeed, the right of a colored man that, in the
selection of jurors to pass upon his life, liberty and property, there shall be
no exclusion of his race, and no discrimination against them because of color,
has been asserted in [***16] a number of cases.
Upon the other hand, where a statute of Louisiana required those engaged in the
transportation of passengers among the States to give to all persons travelling within that State, upon vessels employed in that
business, equal rights and privileges in all parts of the vessel, without
distinction on account of race or color, and subjected to an action for damages
the owner of such a vessel, who excluded colored passengers on account of their
color from the cabin set aside by him for the use of whites, it was held to be
[***17] so far as it applied to interstate commerce,
unconstitutional and void. Hall v. De Cuir, 95
In the Civil Rights case, 109 U.S. 3, it was held that an act of Congress,
entitling all persons within the jurisdiction of the United States to the full
and equal enjoyment of the accommodations, advantages, facilities and
privileges of inns, public conveyances, on land or water, theatres and other
places of public amusement, and made applicable to citizens of every race and
color, regardless of any previous condition of servitude, was unconstitutional
and void, upon the ground that the Fourteenth Amendment was prohibitory upon
the States only, and the legislation authorized to be adopted by Congress for
enforcing it was not direct legislation on matters respecting which the States
were prohibited from making or enforcing certain laws, or doing certain acts,
but was corrective legislation, such as might be necessary or proper for
counteracting and redressing the effect of such [***18] laws or
acts. In delivering the opinion of the court Mr. Justice Bradley observed that
the Fourteenth Amendment "does not invest Congress with power to legislate
upon subjects that are within the [*547] domain of state
legislation; but to provide modes of relief against [**1142] state
legislation, or state action, of the kind referred to. It does not authorize
Congress to create a code of municipal law for the regulation of private
rights; but to provide modes of redress against the operation of state laws,
and the action of state officers, executive or judicial, when these are
subversive of the fundamental rights specified in the amendment. Positive
rights and privileges are undoubtedly secured by the Fourteenth Amendment; but
they are secured by way of prohibition against state laws and state proceedings
affecting those rights and privileges, and by power given to Congress to
legislate for the purpose of carrying such prohibition into effect; and such
legislation must necessarily be predicated upon such supposed state laws or
state proceedings, and be directed to the correction of their operation and
effect."
Much nearer, and, indeed, almost directly in point, is the [***19]
case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U.S.
587, wherein the railway company was indicted for a violation of a statute of
Mississippi, enacting that all railroads carrying passengers should provide
equal, but separate, accommodations for the white and colored races, by
providing two or more passenger cars for each passenger train, or by dividing
the passenger cars by a partition, so as. to secure separate accommodations.
The case was presented in a different aspect from the one under consideration,
inasmuch as it was an indictment against the railway company for failing to
provide the separate accommodations, but the question considered was the
constitutionality of the law. In that case, the Supreme Court of Mississippi,
66
A like course of reasoning applies to the case under consideration, since the
Supreme Court of Louisiana in the case of the State ex rel.
Abbott v. Hicks, Judge, et al., 44 La. Ann. 770, held that the statute in
question did not apply to interstate passengers, but was confined in its
application to passengers travelling exclusively
within the borders of the State. The case was decided largely upon the
authority of Railway Co. v. State, 66 Mississippi, 662, and affirmed by this
court in 133 U.S. 587. In the present case no question of interference with
interstate commerce can possibly arise, since the East Louisiana Railway
appears to have been purely a local line, with both its termini
[***21] within the State of Louisiana. Similar statutes for the
separation of the two races upon public conveyances were held to be
constitutional in West Chester &c. Railroad v. Miles, 55 Penn. St. 209; Day
v. Owen, 5 Michigan, 520; Chicago &c. Railway v. Williams, 55 Illinois, 185;
Chesapeake &c. Railroad v. Wells, 85 Tennessee, 613; Memphis &c.
Railroad v. Benson, 85 Tennessee, 627; The Sue, 22 Fed. Rep. 843; Logwood v.
Memphis &c. Railroad, 23 Fed. Rep. 318; McGuinn
v. Forbes, 37 Fed. Rep. 639; People v. King, 18 N.E. Rep. 245; Houck v. South
Pac. Railway, 38 Fed. Rep. 226; Heard v. Georgia Railroad Co., 3 Int. Com. Com'n, 111; S.C., 1 Ibid. 428.
While we think the enforced separation of the races, as applied to the internal
commerce of the State, neither abridges the privileges or immunities of the
colored man, deprives him of his property without due process of law, nor
denies him the equal protection of the laws, within the meaning of the
Fourteenth Amendment, we are not prepared to say that the conductor, in
assigning passengers to the coaches according to their race, does not act at
his peril, or that the provision of the second section of the act, that denies
to the passenger [***22] compensation [*549] in damages
for a refusal to receive him into the coach in which he properly belongs, is a
valid exercise of the legislative power. Indeed, we understand it to be
conceded by the State's attorney, that such part of the act as exempts from
liability the railway company and its officers is unconstitutional. The power
to assign to a particular coach obviously implies the power to determine to
which race the passenger belongs, as well as the power to determine who, under
the laws of the particular State, is to be deemed a white, and who a colored
person. This question, though indicated in the brief of the plaintiff in error,
does not properly arise upon the record in this case, since the only issue made
is as to the unconstitutionality of the act, so far as it requires the railway
to provide separate accommodations, and the conductor to assign passengers
according to their race.
It is claimed by the plaintiff in error that, in any mixed community, the
reputation of belonging to the dominant race, in this instance the white race,
is property, in the same sense that a right of action, or of inheritance, is
property. Conceding this to be so, for the purposes [***23] of this
case, we are unable to see how this statute deprives him of, or in any way
affects his right to, such property. If he be a white man and assigned to a
colored coach, he may have his [**1143] action for damages against
the company for being deprived of his so called property. Upon the other hand,
if he be a colored man and be so assigned, he has been deprived of no property,
since he is not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the the
learned counsel for the plaintiff in error that the same argument that will
justify the state legislature in requiring railways to provide separate
accommodations for the two races will also authorize them to require separate
cars to be provided for people whose hair is of a certain color, or who are
aliens, or who belong to certain nationalities, or to enact laws requiring
colored people to walk upon one side of the street, and white people upon the
other, or requiring white men's houses to be painted white, and colored men's
black, or their vehicles or business signs to be of different colors, upon the
theory that one side [*550] of the street is as good as the other,
[***24] or that a house or vehicle of one color is as good as one
of another color. The reply to all this is that every exercise of the police
power must be reasonable, and extend only to such laws as are enacted in good
faith for the promotion for the public good, and not for the annoyance or
oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U.S. 356, it was held by this court that
a municipal ordinance of the city of San Francisco, to regulate the carrying on
the public laundries within the limits of the municipality, violated the
provisions of the Constitution of the United States, if it conferred upon the
municipal authorities arbitrary power, at their own will, and without regard to
discretion, in the legal sense, of the term, to give or withhold consent as to
persons or places, without regard to the competency of the persons applying, or
the propriety of the places selected for the carrying on the business. It was
held to be a covert attempt on the part of the municipality to make an
arbitrary and unjust discrimination against the Chinese race. While this was
the case of a municipal ordinance, a like principle has been held to apply to
acts of a state legislature [***25] passed in the exercise of the
police power. Railroad Company v. Husen, 95 U.S. 465;
Louisville & Nashville Railroad v. Kentucky, 161 U.S. 677, and cases cited
on p. 700; Daggett v. Hudson, 43 Ohio St. 548; Capen
v. Foster, 12 Pick. 485; State ex rel. Wood v. Baker,
38 Wisconsin, 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman
v. Rems, 41 Penn. St. 396; Orman
v. Riley, 15 California. 48.
So far, then, as a conflict with the Fourteenth Amendment is concerned, the
case reduces itself to the question whether the statute of Louisiana is a
reasonable regulation, and with respect to this there must necessarily be a
large discretion on the part of the legislature. In determining the question of
reasonableness it is at liberty to act with reference to the established
usages, customs and traditions of the people, and with a view to the promotion
of their comfort, and the preservation of the public peace and good order.
Gauged by this standard, we cannot say that a law which authorizes or even
requires the separation of the two races in public conveyances [*551]
is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of
Congress requiring separate schools [***26] for colored children in
the District of Columbia, the constitution ality of
which does not seem to have been questioned, or the corresponding acts of state
legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in
the assumption 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. The argument necessarily assumes that if, as has
been more than once the case, and is not unlikely to be so again, the colored
race should become the dominant power in the state legislature, and should
enact a law in precisely similar terms, it would thereby relegate the white
race to an inferior position. We imagine that the white race, at least, would
not acquiesce in this assumption. The argument also assumes that social
prejudices may be overcome by legislation, and that equal rights cannot be
secured to the negro except by an enforced commingling of the two races. We
cannot accept this proposition. If the two races are to meet upon terms of social
equality, it must be the result [***27] of natural affinities, a
mutual appreciation of each other's merits and a voluntary consent of
individuals. As was said by the Court of Appeals of New York in People v.
Gallagher, 93 N.Y. 438, 448, "this end can neither be accomplished nor
promoted by laws which conflict with the general sentiment of the community
upon whom they are designed to operate. When 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." Legislation is powerless to eradicate racial
instincts or to abolish distinctions based upon physical differences, and the
attempt to do so can only result in accentuating the difficulties of the
present situation. If the civil and political rights of both races be equal one
cannot be inferior to the other civilly [*552] or politically. If
one race be inferior to the other socially, the Constitution of the United
States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to
[***28] constitute a colored person, as distinguished from a white
person, is one upon which there is a difference of opinion in the different
States, some holding that any visible admixture of black [**1144]
blood stamps the person as belonging to the colored race, (State v. Chavers, 5 Jones, [N.C.] 1, p. 11); others that it depends
upon the preponderance of blood, ( Gray v. State, 4 Ohio, 354; Monroe v.
Collins, 17 Ohio St. 665); and still others that the predominance of white
blood must only be in the proportion of three fourths. ( People v. Dean, 14
Michigan, 406; Jones v. Commonwealth, 80 Virginia, 538.) But these are question
to be determined under the laws of each State and are not properly put in issue
in this case. Under the allegations of his petition it may undoubtedly become a
question of importance whether, under the laws of Louisiana, the petitioner
belongs to the white or colored race.
The judgment of the court below is, therefore,
Affirmed.
DISSENTBY: HARLAN
DISSENT: MR. JUSTICE HARLAN dissenting.
By the Louisiana statute, the validity of which is here involved, all railway
companies (other than street railroad companies) carrying passengers in that
State are required [***29] to have separate but equal
accommodations for white and colored persons, "by providing two or more
passenger coaches for each passenger train, or by dividing the passenger
coaches by a partition so as to secure separate accommodations." Under
this statute, no colored person is permitted to occupy a seat in a coach
assigned to white persons; nor any white person, to occupy a seat in a coach
assigned to colored persons. The managers of the railroad are not allowed to
exercise any discretion in the premises, but are required to assign each
passenger to some coach or compartment set apart for the exclusive use of his
race. If a passenger insists upon going into a coach or compartment not set
apart for persons of his race, [*553] he is subject to be fined, or
to be imprisoned in the parish jail. Penalties are prescribed for the refusal
or neglect of the officers, directors, conductors and employes
of railroad companies to comply with the provisions of the act.
Only "nurses attending children of the other race" are excepted from
the operation of the statute. No exception is made of colored attendants travelling with adults. A white man is not permitted to
have his colored servant [***30] with him in the same coach, even
if his condition of health requires the constant, personal assistance of such
servant. If a colored maid insists upon riding in the same coach with a white
woman whom she has been employed to serve, and who may need her personal
attention while travelling, she is subject to be
fined or imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not citizens
of the United States, the words in the act, "white and colored
races," necessarily include all citizens of the United States of both
races residing in that State. So that we have before us a state enactment that
compels, under penalties, the separation of the two races in railroad passenger
coaches, and makes it a crime for a citizen of either race to enter a coach
that has been assigned to citizens of the other race.
Thus the State regulates the use of a public highway by citizens of the United
States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to
consider whether it is consistent with the Constitution of the United States.
That a railroad is a public highway, [***31] and that the
corporation which owns or operates it is in the exercise of public functions,
is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this
court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382,
said that a common carrier was in the exercise "of a sort of public
office, and has public duties to perform, from which he should not be permitted
to exonerate himself without the assent of the parties concerned." Mr.
Justice Strong, delivering the judgment of [*554] this court in Olcott v. The Supervisors, 16 Wall. 678, 694, said:
"That railroads, though constructed by private corporations and owned by
them, are public highways, has been the doctrine of nearly all the courts ever
since such conveniences for passage and transportation have had any existence.
Very early the question arose whether a State's right of eminent domain could
be exercised by a private corporation created for the purpose of constructing a
railroad. Clearly it could not, unless taking land for such a purpose by such
an agency is taking land for public use. The right of eminent domain nowhere
justifies taking property for a private use. Yet it is [***32] a
doctrine universally accepted that a state legislature may authorize a private
corporation to take land for the construction of such a road, making
compensation to the owner. What else does this doctrine mean if not that
building a railroad, though it be built by a private corporation, is an act
done for a public use?" So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676; "Though the corporation [a
railroad company] was private, its work was public, as much so as if it were to
be constructed by the State." So, in Inhabitants of Worcester v. Western
Railroad Corporation, 4 Met. 564: "The establishment of that great
thoroughfare is regarded as a public work, established by public authority,
intended for the public use and benefit, the use of which is secured to the
whole community, and constitutes, therefore, like a canal, turnpike or highway,
a public easement." It is true that the real and personal property,
necessary to the establishment and management of the railroad, is vested
[**1145] in the corporation; but it is in trust for the public."
In respect of civil rights, common to all citizens, the Constitution of the
United States does not, I think, permit any public [***33]
authority to know the race of those entitled to be protected in the enjoyment
of such rights. Every true man has pride of race, and under appropriate
circumstances when the rights of others, his equals before the law, are not to
be affected, it is his privilege to express such pride and to take such action
based upon it as to him seems proper. But I deny that any legislative body or judicial
tribunal may have regard to the [*555] race of citizens when the
civil rights of those citizens are involved. Indeed, such legislation, as that
here in question, is inconsistent not only with that equality of rights which
pertains to citizenship, National and State, but with the personal liberty
enjoyed by every one within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of
any right necessarily inhering in freedom. It not only struck down the institution
of slavery as previously existing in the United States, but it prevents the
imposition of any burdens or disabilities that constitute badges of slavery or
servitude. It decreed universal civil freedom in this country. This court has
so adjudged. But that amendment having been found inadequate
[***34] to the protection of the rights of those who had been in
slavery, it was followed by the Fourteenth Amendment, which added greatly to
the dignity and glory of American citizenship, and to the security of personal
liberty, by declaring that "all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside," and 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." These two
amendments, if enforced according to their true intent and meaning, will
protect all the civil rights that pertain to freedom and citizenship. Finally,
and to the end that no citizen should be denied, on account of his race, the
privilege of participating in the political control of his country, it was
declared by the Fifteenth Amendment that "the right of citizens of the
United States to vote shall not be denied or abridged by the United States or
by any State on account [***35] of race, color or previous
condition of servitude."
These notable additions to the fundamental law were welcomed by the friends of
liberty throughout the world. They removed the race line from our governmental
systems. They had, as this court has said, a common purpose, namely, to secure
"to a race recently emancipated, a race that through [*556]
many generations have been held in slavery, all the civil rights that the
superior race enjoy." They declared, in legal effect, this court has
further said, "that the law in the States shall be the same for the black
as for the white; that all persons, whether colored or white, shall stand equal
before the laws of the States, and, in regard to the colored race, for whose
protection the amendment was primarily designed, that no discrimination shall
be made against them by law because of their color." We also said:
"The words of the amendment, it is true, are prohibitory, but they contain
a necessary implication of a positive immunity, or right, most valuable to the
colored race -- the right to exemption from unfriendly legislation against them
distinctively as colored -- exemption from legal discriminations, implying
inferiority in [***36] civil society, lessening the security of
their enjoyment of the rights which others enjoy, and discriminations which are
steps towards reducing them to the condition of a subject race." It was,
consequently, adjudged that a state law that excluded citizens of the colored
race from juries, because of their race and however well qualified in other
respects to discharge the duties of jurymen, was repugnant to the Fourteenth
Amendment. Strauder v. West Virginia, 100 U.S. 303,
306, 307; Virginia v. Rives, 100 U.S. 313; Ex parte
Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky,
107 U.S. 110, 116. At the present term, referring to the previous
adjudications, this court declared that "underlying all of those decisions
is the principle that the Constitution of the United States, in its present
form, forbids, so far as civil and political rights are concerned,
discrimination by the General Government or the States against any citizen
because of his race. All citizens are equal before the law." Gibson v.
Mississippi, 162 U.S. 565.
The decisions referred to show the scope of the recent amendments of the
Constitution. They also show that it is not within [***37] the
power of a State to prohibit colored citizens, because of their race, from
participating as jurors in the administration of justice.
It was said in argument that the statute of Louisiana does [*557]
not discriminate against either race, but prescribes a rule applicable alike to
white and colored citizens. But this argument does not meet the difficulty.
Every one knows that the statute in question had its origin in the purpose, not
so much to exclude white persons from railroad cars occupied by blacks, as to
exclude colored people from coaches occupied by or assigned to white persons.
Railroad corporations of Louisiana did not make discrimination among whites in
the matter of accommodation for travellers. The thing
to accomplish was, under the guise of giving equal accommodation for whites and
blacks, to compel the latter to keep to themselves while travelling
in railroad passenger coaches. No one would be so wanting in candor as to
assert the contrary. The fundamental [**1146] objection, therefore,
to the statute is that it interferes with the personal freedom of citizens.
"Personal liberty," it has been well said, "consists in the power
of locomotion, of changing [***38] situation, or removing one's
person to whatsoever places one's own inclination may direct, without
imprisonment or restraint, unless by due course of law." 1 Bl. Com. *134. If a white man and a black man choose to
occupy the same public conveyance on a public highway, it is their right to do
so, and no government, proceeding alone on grounds of race, can prevent it
without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to furnish,
equal accommodations for all whom they are under a legal duty to carry. It is
quite another thing for government to forbid citizens of the white and black
races from travelling in the same public conveyance,
and to punish officers of railroad companies for permitting persons of the two
races to occupy the same passenger coach. If a State can prescribe, as a rule
of civil conduct, that whites and blacks shall not travel as passengers in the
same railroad coach, why may it not so regulate the use of the streets of its
cities and towns as to compel white citizens to keep on one side of a street
and black citizens to keep on the other? Why may it not, upon like grounds,
punish whites and [***39] blacks who ride together in street cars
or in open vehicles on a public road [*558] of street? Why may it
not require sheriffs to assign whites to one side of a court-room and blacks to
the other? And why may it not also prohibit the commingling of the two races in
the galleries of legislative halls or in public assemblages convened for the
considerations of the political questions of the day? Further, if this statute
of Louisiana is consistent with the personal liberty of citizens, why may not
the State require the separation in railroad coaches of native and naturalized
citizens of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of the
kind they suggest would be unreasonable, and could not, therefore, stand before
the law. Is it meant that the determination of questions of legislative power
depends upon the inquiry whether the statute whose validity is questioned is,
in the judgment of the courts, a reasonable one, taking all the circumstances
into consideration? A statute may be unreasonable merely because a sound public
policy forbade its enactment. But I do not understand that the courts
[***40] have anything to do with the policy or expediency of
legislation. A statute may be valid, and yet, upon grounds of public policy, may
well be characterized as unreasonable. Mr. Sedgwick correctly states the rule
when he says that the legislative intention being clearly ascertained,
"the courts have no other duty to perform than to execute the legislative
will, without any regard to their views as to the wisdom or justice of the
particular enactment." Stat. & Const. Constr.
324. There is a dangerous tendency in these latter days to enlarge the
functions of the courts, by means of judicial interference with the will of the
people as expressed by the legislature. Our institutions have the
distinguishing characteristic that the three departments of government are
coordinate and separate. Each must keep within the limits defined by the
Constitution. And the courts best discharge their duty by executing the will of
the law-making power, constitutionally expressed, leaving the results of
legislation to be dealt with by the people through their representatives.
Statutes must always have a reasonable construction. Sometimes they are to be
construed strictly; sometimes, liberally, in [***41] order to carry
out the legislative [*559] will. But however construed, the intent
of the legislature is to be respected, if the particular statute in question is
valid, although the courts, looking at the public interests, may conceive the
statute to be both unreasonable and impolitic. If the power exists to enact a
statute, that ends the matter so far as the courts are concerned. The adjudged
cases in which statutes have been held to be void, because unreasonable, are
those in which the means employed by the legislature were not at all germane to
the end to which the legislature was competent.
The white race deems itself to be the dominant race in this country. And so it
is, in prestige, in achievements, in education, in wealth and in power. So, I
doubt not, it will continue to be for all time, if it remains true to its great
heritage and holds fast to the principles of constitutional liberty. But in
view of the Constitution, 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 [***42] are
equal before the law. The humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his surroundings or of his color
when his civil rights as guaranteed by the supreme law of the land are
involved. It is, therefore, to be regretted that this high tribunal, the final
expositor of the fundamental law of the land, has reached the conclusion that
it is competent for a State to regulate the enjoyment by citizens of their
civil rights solely upon the basis of race.
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. It
was adjudged in that case that the descendants of Africans who were imported
into this country and sold as slaves were not included nor intended to be
included under the word "citizens" in the Constitution, and could not
claim any of the rights and privileges [**1147] which that
instrument provided for and secured to citizens of the United States; that at
the time of the adoption of the Constitution they were "considered as a
subordinate and inferior class of beings, who had been subjugated by the
dominant [*560] [***43] race, and, whether emancipated
or not, yet remained subject to their authority, and had no rights or privileges
but such as those who held the power and the government might choose to grant
them." 19 How. 393, 404. The recent amendments of the Constitution, it was
supposed, had eradicated these principles from our institutions. But it seems
that we have yet, in some of the States, a dominant race -- a superior class of
citizens, which assumes to regulate the enjoyment of civil rights, common to
all citizens, upon the basis of race. The present decision, it may well be
apprehended, will not only stimulate aggressions, more or less brutal and
irritating, upon the admitted rights of colored citizens, but will encourage
the belief that it is possible, by means of state enactments, to defeat the
beneficent purposes which the people of the United States had in view when they
adopted the recent amendments of the Constitution, by one of which the blacks
of this country were made citizens of the United States and of the States in
which they respectively reside, and whose privileges and immunities, as
citizens, the States are forbidden to abridge. Sixty millions of whites are in
no danger [***44] from the presence here of eight millions of
blacks. The destinies of the two races, in this country, are indissolubly
linked together, and the interests of both require that the common government
of all shall not permit the seeds of race hate to be planted under the sanction
of law. What can more certainly arouse race hate, what more certainly create
and perpetuate a feeling of distrust between these races, than state
enactments, which, in fact, proceed on the ground that colored citizens are so
inferior and degraded that they cannot be allowed to sit in public coaches
occupied by white citizens? That, as all will admit, is the real meaning of
such legislation as was enacted in Louisiana.
The sure guarantee 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. State enactments,
regulating the enjoyment of civil rights, upon the basis of race, and cunningly
devised to defeat legitimate results of the [*561] war, under the
pretence of recognizing equality of rights, [***45] can have no
other result than to render permanent peace impossible, and to keep alive a
conflict of races, the continuance of which must do harm to all concerned. This
question is not met by the suggestion that social equality cannot exist between
the white and black races in this country. That argument, if it can be properly
regarded as one, is scarcely worthy of consideration; for social equality no
more exists between two races when travelling in a
passenger coach or a public highway than when members of the same races sit by
each other in a street car or in the jury box, or stand or sit with each other
in a political assembly, or when they use in common the streets of a city or
town, or when they are in the same room for the purpose of having their names
placed on the registry of voters, or when they approach the ballot-box in order
to exercise the high privilege of voting.
There is a race so different from our own that we do not permit those belonging
to it to become citizens of the United States. Persons belonging to it are,
with few exceptions, absolutely excluded from our country. I allude to the
Chinese race. But by the statute in question, a Chinaman can ride in the
[***46] same passenger coach with white citizens of the United
States, while citizens of the black race in Louisiana, many of whom, perhaps,
risked their lives for the preservation of the Union, who are entitled, by law,
to participate in the political control of the State and nation, who are not
excluded, by law or by reason of their race, from public stations of any kind,
and who have all the legal rights that belong to white citizens, are yet
declared to be criminals, liable to imprisonment, if they ride in a public
coach occupied by citizens of the white race. It is scarcely just to say that a
colored citizen should not object to occupying a public coach assigned to his
own race. He does not object, nor, perhaps, would he object to separate coaches
for his race, if his rights under the law were recognized. But he objects, and ought
never to cease objecting to the proposition, that citizens of the white and
black races can be adjudged criminals because they sit, or claim the right to
sit, in the same public coach on a public highway.
[*562] The arbitrary separation of citizens, on the basis of race,
while they are on a public highway, is a badge of servitude wholly inconsistent
[***47] with the civil freedom and the equality before the law
established by the Constitution. It cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public highways
established for the benefit of all, they will be infinitely less than those
that will surely come from state legislation regulating the enjoyment of civil
rights upon the basis of race. We boast of the freedom enjoyed by our people
above all other peoples. But it is difficult to reconcile that boast with a
state of the law which, practically, puts the brand of servitude and
degradation upon a large class of our fellow-citizens, our equals before the
law. The thin disguise of "equal" accommodations for passengers in
railroad coaches will not mislead any one, nor atone for the wrong this day
done.
The result of the whole matter is, that while this court has frequently
adjudged, and at the present term has recognized the doctrine, that
[**1148] a State cannot, consistently with the Constitution of the
United States, prevent white and black citizens, having the required
qualifications for jury service, from sitting in the same jury box, it is now
solemnly [***48] held that a State may prohibit white and black
citizens from sitting in the same passenger coach on a public highway, or may
require that they be separated by a "partition," when in the same
passenger coach. May it not now be reasonably expected that astute men of the
dominant race, who affect to be disturbed at the possibility that the integrity
of the white race may be corrupted, or that its supremacy will be imperilled, by contact on public highways with black
people, will endeavor to procure statutes requiring white and black jurors to
be separated in the jury box by a "partition," and that, upon
retiring from the court room to consult as to their verdict, such partition, if
it be a moveable one, shall be taken to their consultation room, and set up in
such way as to prevent black jurors from coming too close to their brother
jurors of the white race. If the "partition" used in the court room
happens to be stationary, provision could be made for screens with openings
through [*563] which jurors of the two races could confer as to
their verdict without coming into personal contact with each other. I cannot
see but that, according to the principles this day announced, such
[***49] state legislation, although conceived in hostility to, and
enacted for the purpose of humiliating citizens of the United States of a
particular race, would be held to be consistent with the Constitution.
I do not deem it necessary to review the decisions of state courts to which
reference was made in argument. Some, and the most important, of them are
wholly inapplicable, because rendered prior to the adoption of the last
amendments of the Constitution, when colored people had very few rights which
the dominant race felt obliged to respect. Others were made at a time when
public opinion, in many localities, was dominated by the institution of
slavery; when it would not have been safe to do justice to the black man; and
when, so far as the rights of blacks were concerned, race prejudice was, practically,
the supreme law of the land. Those decisions cannot be guides in the era
introduced by the recent amendments of the supreme law, which established
universal civil freedom, gave citizenship to all born or naturalized in the
United States and residing her, obliterated the race line from our systems of
governments, National and State, and placed our free institutions upon the
broad [***50] and sure foundation of the equality of all men before
the law.
I am of opinion that the statute of Louisiana is inconsistent with the personal
liberty of citizens, white and black, in that State, and hostile to both the
spirit and letter of the Constitution of the United States. If laws of like
character should be enacted in the several States of the Union, the effect
would be in the highest degree mischievous. Slavery, as an institution
tolerated by law would, it is true, have disappeared from our country, but
there would remain a power in the States, by sinister legislation, to interfere
with the full enjoyment of the blessings of freedom; to regulate civil rights,
common to all citizens, upon the basis of race; and to place in a condition of
legal inferiority a large body of American citizens, now constituting a part of
the political community called the [*564] People of the United
States, for whom, and by whom through representatives, our government is
administered. Such a system is inconsistent with the guarantee given by the
Constitution to each State of a republican form of government, and may be
stricken down by Congressional action, or by the courts in the discharge
[***51] of their solemn duty to maintain the supreme law of the
land, anything in the constitution or laws of any State to the contrary
notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the opinion
and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate in the decision of
this case.