The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today is the 122st anniversary of the decision in Plessy v. Ferguson (1896). These days almost every middle school student is familiar with the case and how it ultimately came out. But just in case you were born on Mars: Notoriously, the Supreme Court upheld the constitutionality of Louisiana's Separate Car Act, which required railroads to provide "separate but equal" cars for blacks and whites.
One thing that some people don't know is that the railroads were rooting for Homer Plessy. Plessy was one of those lawsuits that was planned as a challenge to a law's constitutionality. In New Orleans, a committee was formed (calling itself the "Comité des Citoyens") dedicated to challenging the Act in court. It took two tries, but the Comité did indeed get the issue before a federal court.
Railroad officials proved surprisingly cooperative. The first one approached, however, confesses that his road "did not enforce the law." It provided the Jim Crow car and posted the sign required by law, but told its conductors to molest no one who ignored instructions. Officers of two other railroads "said the law was a bad and mean one; they would like to get rid of it," and asked for time to consult counsel. "The want to help us," said Martinet [a young lawyer/physician/editor who helped organize the resistance to Jim Crow in New Orleans], "but dread public opinion." … It was finally agreed that a white passenger should object to the presence of a black in a "white" coach, that the conductor should direct the passenger to go to the Jim Crow car, and that he should refuse to go. "The conductor will be instructed not to use force or molest," reported Martinet, "& our white passenger will swear out the affidavit. This will give us our habeas corpus case, I hope."
Woodward was writing here about the first lawsuit brought by the Comité. That case fizzled, because the plaintiff had bought a ticket to Alabama. Before it could be argued, the Louisiana Supreme Court had held in a case brought by the Pullman Company that the law was unconstitutional as applied to interstate passengers. As to the Plessy case itself, Woodward wrote that "it may be assumed that the railroad had been informed of the plan and agreed to cooperate." Indeed, the East Lousiana Railway had opposed the law prior to its passage, and there is some evidence that the railroads helped finance the case.
All of this tends to be intuitive to libertarians. Why would a railroad want to run two half-empty train cars if it can run one full car instead? To others (perhaps even including Woodward, who called the cooperation of railroad officials "surprising"), it is sometimes counter-intuitive. But if railroads had been keen on racial segregation, the Separate Car Act would have been unnecessary.
I hope to write more on C. Vann Woodward's take on the Jim Crow Era later. Woodward had quite a few insights on that period of history that can help make sense of our own era.