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Don't Blame the Railroad for Plessy v. Ferguson

On this 122nd anniversary of the decision in Plessy v. Ferguson, don't forget that the East Louisiana Railway had opposed the Jim Crow law and had cooperated with those who sought to challenge it.

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.

In an essay entitled The Case of the Louisiana Traveler, the great historian C. Vann Woodward wrote about the railroads' cooperation with the efforts of the Comité:

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.

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  • MiloMinderbinder||

    These days almost every middle school student is familiar with the case and how it ultimately came out.

    Sounds like you haven't met a lot of middle school students lately.

  • Scarecrow Repair & Chippering||

    I thought it was common knowledge, among those who knew of Plessy, that the railroads were against Jim Crow. But I also did not think Plessy was common knowledge at all.

  • AustinRoth||

    More middle schoolers know Plessy than you may think, MiloMinderbender.

    It is taught in the mandatory "Evil White People History" class they all take now in 7th grade.

  • NToJ||

    Just so we can get clear, are you saying the authors of Jim Crow were not (1) evil; (2) white?

  • AustinRoth||

    Not at all.

    However, I am am now saying you have no sense of humor and cannot tell hyperbole from your derriere. And you have atrocious grammar.

  • Careless||

    What an embarrassing failure of reading comprehension you've shown here

  • apedad||

    Even corporations back then were progressive.

    It must suck to be a bigot.

  • Eidde||

    Even Woodrow Wilson was progressive...wait, that's not a good example, is it, because he was in favor of segregation.

  • Sarcastr0||

    Yeah the progressive brand of nowadays is only vaguely connected to the brand of back then.

    But yeah, haha wow; Wilson was just so amazingly out-and-out racist. Part of it was where progressivism was at the time, but Wilson takes it to an almost satirical extent. An outlier even in his time.

  • Bob from Ohio||

    "progressive brand of nowadays is only vaguely connected to the brand of back then"

    Progressives then hated both Jews and blacks, now they merely hate Jews. Progress.

  • Sarcastr0||

    A bunch of progressive Jews would disagree with you about Jews.

    A bunch of conservatives (including you sometimes) would disagree with you about blacks; that Dems still have the same contempt for minorities they have always had, just laundered better.

  • Bob from Ohio||

    "A bunch of progressive Jews would disagree with you about Jews."

    A Jew can still hate Jews.

    "contempt for minorities"

    Its just the contempt the con man always feels for the mark.

  • Sarcastr0||

    That is a weird amount of Jews who hate the Jews.

  • CJColucci||

    Mr. Brandeis on line 2.

  • Negi||

    Jews excel in many disparate fields, including antisemitism, as it so happens. (Yevsektsiya, the German Jews who hated the Ostjuden, etc etc.)

  • Eidde||

    I'm just suggesting that, back then, not even the progressives were necessarily progressive in the modern sense of the term (if it be taken to mean "in favor of Good Things and against Bad Things, as defined by the person using the term).

    And Wilson may have been an outlier, but he got elected twice to the Presidency.

  • Eidde||

    This illustrates the difficulty of those on the left who, depending on the situation, try to claim continuity with various political movements of the past, while distancing themselves from those movements when the awkward aspects of those movements get pointed out.

  • Sarcastr0||

    I'd say this is a symptom of a larger problem when it comes to political terminology wherein originally clear concepts are commoditized and turned into brands that no longer stand for much.

    The obvious is Democrat and Republican, which IMO despite rhetoric is more about group adhesion than any consistent ideology.
    Liberalism and conservativism are also all over the map. The heated debates on this forum about whether something is conservative devolve quickly due to the lack of agreed-upon central axioms. And I see the same on progressive message boards.

    Speaking of...progressive is used these days just to mean 'liberal but I don't like calling myself a liberal.' (IMO this is the legacy of Reagan's masterful branding, but also a symptom of the DNC's terminal Clintonism) It looks to me like the term was appropriated to give this position some sense of continuity and heft, though it has as little as all the others.

    And then there is libertarian, which may be the most abused of all. 'Small government' is great, but when you get down to specifics the only commonality I can find is purity tests.

  • gormadoc||

    Clinton was calling herself a progressive since at least the 2008 election.

  • gormadoc||

    Unless you intended Bill Clinton, I guess.

  • Sarcastr0||

    I did intend Bill and the DLC. And subsequent capture of the Democratic Party apparatus to a greater or lesser extent from then until today.

    I'm not one of those 'Bernie woulda won' Hillary haters, but the irony that the Clintonian poisoning of the liberal brand for the left requiring that Hillary had to call herself progressive is pretty delicious.

  • Rigelsen||

    And here Sacastr0 demonstrates his unfamiliarity with the the intellectual history of liberalism.

  • bernard11||

    Let's not forget, while talking about progressives, that not too long ago conservatives were staunch defenders of Jim Crow, and many were blatantly racist, including Saint Buckley himself.

  • khm001||

    To what do "progressives" progress? Can you even define what "progressive" means in the context in which you use it?

  • DjDiverDan||

    It wasn't that corporations were progressive, they were seeking to maximize profits. Two rules for maximizing profits are: (1) never unnecessarily antagonize any class of paying customers; it's not the color of the customers, only the color of their cash that matters; and (2) never incur unnecessary costs; maximize efficiency in delivery of your products or services to your customers. Any company that willingly discriminates against a substantial group of prospective customers pays a price for that discrimination - lower profits (maybe even losses), a smaller market share, and vulnerability to more tolerant competitors.

    So many progressives insist that, but for the public accomodations provisions of the Civil Rights Act, segregation in public accommodations would still be widespread in the American south. But that is completely unwarranted. The only reason segregation persisted into the 1960s in the south was its legally enforcement through the Jim Crow laws. Free and open competition, where maximizing profits is the goal, is more than sufficient to limit discrimination. Which is why cases like the Masterpiece Cake Shop case, and the anti-discrimination laws which make such cases possible, are so silly. If there is a demand for wedding cakes for gay weddings, competitors WILL seek to get that business.

  • bernard11||

    never unnecessarily antagonize any class of paying customers; it's not the color of the customers, only the color of their cash that matters;

    And if you have no choice?

    What if serving blacks antagonizes white customers, and not serving them antagonizes blacks? Your choice? Before answering, bear in mind that in the time and place we are discussing blacks were a poor minority, with per capita income very much lower than whites.

    The only reason segregation persisted into the 1960s in the south was its legally enforcement through the Jim Crow laws.

    Plainly false. I gave the example of employment elsewhere. I also explained, as I do above, that economic forces can reinforce discrimination. They can cause non-racists to engage in racial discrimination. If white customers won't buy clothes the blacks may have tried on what is your policy about black customers?

    One final point. Not all businesses are profit-maximizers. This is especially true of small mom-and-pop retail operations, which were the core of retail in the South during that era, but also of some larger companies. Businesses are run in accordance with the preferences of their owners, and profits do not outweigh all preferences.

    Considering B&H Photo, a very large seller of photographic equipment, which is run by Orthodox Jews. B&H is closed, and will not even accept online orders from Friday afternoon through the end of the Sabbath. Do you think that doesn't cost them business?

    Continued...

  • bernard11||

    Continuation...

    Back to small stores and restaurants. The owners may well have a strong preference for racial discrimination, even if it does cost them some money. These kinds of businesses are not well described as profit-maximizing businesses, but rather as a combination of households and businesses, where personal preferences play a big role.

    Consider also professional sports, which token awful long time to integrate, despite obvious incentives. It took baseball half a century, even though the owners could find highly talented players across town in the Negro Leagues. It stayed segregated because of market forces, not laws. Fans, the owners thought, did not want to watch black players, and many white players disliked having blacks as teammates. It was only when social forces changed, that some teams started to sign black players, and the pioneers - the Dodgers and Giants, not the Yankees - were in New York. It took other teams even longer.

    So I don't think the simple "profit-maximization will fix it" model really works at all, for any number of reasons.

  • Junkie||

    Regarding of knowledge: I imagine most people have heard of it, and that a significant number can tell you that it led to separate but equal, but not many will be able to tell you that it had anything to do with railroads.

  • ||

    Let's notice and applaud that Heriot has finally written something interesting and informative, as opposed to her usual right-wing claptrap. Maybe there's some hope.

  • bernard11||

    As a historical note it is interesting, though most who are interested already knew this.

    As an attempt to advance libertarian fantasy that markets cure discrimination, it is silly.

  • Jono||

    David Henderson notes that cinemas in Washington, DC, used to discriminate even in the absence of Jim Crow laws.

    http://econlog.econlib.org/arc.....ation.html

    An interesting contrast.

  • Negi||

    People need to ride trains, but don't need to go to the cinema. I think that is the distinction. Passenger trains are a natural monopoly at any given time on a timetable and route, at least, so there couldn't be as much competition for patrons, whereas cinemas could more easily advertise in this way.

  • bernard11||

    Right. Market pressures can reinforce racist business practices in some situations. They certainly did in the Jim Crow south.

  • Brett Bellmore||

    Certainty is exactly what's absent, as we went directly from legally mandated, to legally prohibited, without seeing what would happen if people were just free.

  • ||

    This is off-topic, but in light of the news today, we should see a David Kopel article appear shortly.

  • mad_kalak||

    And with it, you and that Hiln guy with start tilting at windmills again.

    On that note, I noticed you didn't comment on the post about the buried CDC survey about defensive uses of firearms matching Kleck's work, nor even Eugene post providing some examples of mass shooting stopped by permit holders. You must be itching for a chance to try to ineffectively comment about guns, does it make you feel good whist doing it?

  • mad_kalak||

    And with it, you and that Hiln guy will start tilting at windmills again.

    On that note, I noticed you didn't comment on the post about the buried CDC survey about defensive uses of firearms matching Kleck's work, nor even Eugene's post providing some examples of mass shooting stopped by permit holders. You must be itching for a chance to try to ineffectively comment about guns, does it make you feel good whist doing it?

  • ||

    "Mass shootings stopped by permit holders"

    I stand back in awe at this completely un-ironic phrase.

  • Rev. Arthur L. Kirkland||

    Gail Heriot. Libertarian.

    And Independent.

    But not a Republican.

    That's the claim, right?

    Carry on, clingers.

  • Eidde||

    Only a moustache-twirling, tophat-wearing Republican would defend those big railroad corporations.

  • khm001||

    I do love it, how mad you democrats get when you're reminded republicans took away your slaves.

  • JonFrum||

    Regarding historian C. Vann Woodward, quoted in this article: (from Wikipedia)

    "His demonstration that racial segregation was a late 19th century invention rather than some sort of eternal standard made his The Strange Career of Jim Crow into "the historical Bible of the civil rights movement", said Martin Luther King Jr. After attacks on him by the New Left in the late 1960s, he moved to the right politically."

    The more things change ...

  • Matt L||

    I appreciate that, more than a lot of other websites, the Volkh Conspiracy is probably justified in assuming the overwhelming majority of its readers are in the US.

    But I still can't resist pointing out that you don't have to be born on Mars to not be familiar with Plessy v. Ferguson. You just have to be one of the 96% of the world's population not born and raised in the US.

  • Negi||

    I tried to find a legal blog in the UK or Canada that focuses on freedom of speech/anti-censorship, and I couldn't find a single one. I'd be interested to see if the VC could bring in some Canadians or like-minded Brits to talk about the situation over in their countries.

  • David Bernstein||

    Plessy was definitely set up with the help of the railroad. Plessy himself was only 1/8 black, and looked "white", so they wouldn't have arrested him for using the "white" car unless they knew he was coming.

    Also, the railroads generally hate Jim Crow, not just because it was inefficient in the way Gail mentioned, but because the conductor had to decide based on appearance who belonged in which car, and this led to all sorts of problems. Fistfights when a "white" man was told to go to the "black" car, and "black" passengers refusing the conductor's order to go the "white" car. Led to all sorts of litigation.

  • Gospace||

    And if the bus companies had had their way, the Rosa Parks case would not have been needed. Government caused segregation, not business. Business, until recently, has been ruled by one thing- the almighty dollar. Now, various business operations are getting woke- and going broke.

  • bernard11||

    Bullshit.

    Government did not cause segregation, a racist society did. Who the hell do you think elected those governors and legislators?

    Besides, there was ample segregation not required by government. Even in the Jim Crow south there were hardly any laws mandating racist practices in employment, for example. Yet racial discrimination in hiring was commonplace, and few employers would have dared put a black, no matter how diligent and intelligent, in a role that involved supervising white worker.

  • bernard11||

    And just to clarify, the reason for employer reluctance, even in the unlikely event the employer was not a racist himself, was the fact that the white employees would not have cooperated with the supervisor, and some would have quit.

    Similarly, many whites would just not have cooperated with a black co-worker.

    These are economic motivations.

  • TwelveInchPianist||

    "Government did not cause segregation, a racist society did. Who the hell do you think elected those governors and legislators?"

    Huh? It sounds like what you are saying is that government did indeed cause segregation, but a racist society elected the racist government. But you just love the government so much that you can't bring yourself to say that.

  • bernard11||

    What I'm saying is that claiming that government caused segregation is silly. It didn't.

    First, the fact that the people elected the government is not entirely irrelevant, especially considering that no politician who did not support segregation would have the proverbial snowball's chance of winning an election. Indeed, many elections famously turned on which candidate could be the loudest racist. People who hate the government, as you seem to, appear to think that the southern states were governed by some sort of invading force that imposed segregation. They weren't. It was what the people wanted - or at least those who were allowed to vote - by very large majorities. Racism was at the very core of white society. Even so-called "racial moderates" mostly simply argued that blacks should be protected against violence by the law. That was enough.

    Further, the laws were not the binding constraint. So long as segregation was allowed it was going be widespread - close to universal. Let me repeat - these people were intensely racist. Let me also repeat that there was segregation, and racist practices even where they were not required by law.

    And even those who were not intensely racist had, contrary to libertarian orthodoxy, plenty of motivation to maintain segregation for purely economic reasons. If serving blacks in your restaurant is going to cost you a huge chunk of your white business you are not going to do it.

  • David Nieporent||

    It's weird how liberals who think every problem in modern society is a collective action problem that can be solved only by government because the public's individual choices will be the wrong ones don't extend that belief to the "problem" of enforcing segregation. In the latter context you guys think that businesses would all act against their own economic interest in the absence of any laws mandating that they do so.

    But you fail to explain why those laws existed, then. If businesses would've remained segregated if no Jim Crow laws were on the books, then why did those laws get enacted? Why was the reaction to the Montgomery Bus Boycott not to shrug and say, "Doesn't matter what the laws say; we're going to remain segregated," but rather to pass laws designed to thwart the boycott?

    I don't disagree that the society was racist, but as liberals are fond of pointing out (just ask Nancy MacLean), the market is undemocratic.

  • bernard11||

    See my misplaced response to Lee Moore below.

  • bernard11||

    Alabama law required buses to be segregated before the boycott.

    Tell me, David, have you never heard of racist practices not required by law? Why were there restrictive covenants on deeds, prohibiting the resale of residential property to blacks or Jews?

    Is it possible that these covenants were thought to make the areas more valuable?

  • Gleep Glop||

    Jennifer Roback wrote this article which is a classic amongst economists who study political economy:

    Roback, Jennifer. "The political economy of segregation: the case of segregated streetcars." The Journal of Economic History 46.4 (1986): 893-917.

  • bernard11||

    The Roback article deals with one economic activity in a certain time period. To generalize it to the rest of segregation is silly.

  • Lee Moore||

    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.

    Libertarians often assert the economic irrationality of, er, irrational discrimination. But man does not live by bread alone. We have socialism to thank for the absurd insistence that there is nothing in life but economics, and since the ground on which libertarians traditionally argue with the left tends to be the propriety of liberty in the field of commerce, libertarians spend so much time arguing about economics that sometimes they get hooked on economic explanations and forget the wider picture.

    And so, a man may be willing to take a lower wage to avoid working with black people or white people or Jewish people or Muslims or dogs or garbage or loud machinery. Indeed it appears to be the case that one reason why the average woman earns less than the average man is that the average woman discriminates against jobs that she is quite capable of doing, but prefers not to do.

    So apparently irrational economic discrimination is not at all inexplicable – it may simply reflect the value of other preferences beside profits.

  • bernard11||

    David,

    As I've explained, in the context of a racist society, it is often in the economic interests of a business to discriminate.

    Why is that hard to understand? If serving blacks will drive away white customers, who are more plentiful and richer, then it is in your economic interest not to serve blacks. Is that not clear?

    Besides, a business owner who happens to be a racist may well allow that preference to influence his decisions. Business owners do that all the time.

    Why did the laws exist? Do you think that legislation follows strict Euclidean logic, laws are never passed for show, or because people want them whether they are needed or not? I don't think you believe that.

    Also, the laws also served the purpose of letting politicians show how strongly racist they really were. That was, believe it or not, the critical issue in many southern political campaigns.

    I don't know how old you are, or where you grew up, but I spent a big part of my youth in the Jim Crow south. I often think that without that experience it is very hard to appreciate the degree to which racism permeated everyday existence.

    This included, by the way, employment practices, which, again as I point out above, were not generally subject to Jim Crow laws. So why didn't the "the market will solve it" theory work there, or in segregated places outside the south where there were no laws?

  • bernard11||

    Sorry. The above was intended as a response to David Nieporent's 9:01PM comment on 5/19.

    Obviously, I agree with your (Lee Moore) comment here.

  • GeorgeBray||

    I like a lot to read professional MBA essay writers , they make great works for true. Upset when happened something bad(

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