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tv   Landmark Cases Plessy v. Ferguson  CSPAN  March 19, 2018 9:00pm-10:32pm EDT

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in brown versus education. california law that requires pro-life pregnancy centers offer information on abortion as an available option. and later, a look at nafta negotiations and the national security implications of the u.s. potentially withdrawing from the agreement. all persons having business before the honorable, the supreme court of the united states are admonished to draw near and give their attention. >> "landmark cases," c-span's special history series, produced in partnership with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice, and may it please the court -- >> quite often, in many of our most famous decisions are ones that the court took that were quite unpopular.
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>> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. good evening, and welcome to "landmark cases," tonight, plessy versus ferguson, this 1896 case established the concept of separate but equal that enabled jim crow segregation laws to flourish legally in the country for the next five decades after the decision. it didn't change in the united states until the 1956 brown versus board of education decision in the supreme court and the civil and voting right acts of the 1960s. six decades before rosa parks refused to give up her seat on an alabama bus, homer plessy took a seat in whites only railroad car in new orleans, louisiana. we're starting our story there
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tonight. we'll introduce you to keith plessy, a descendant of homer plessy, and he'll set the stage for us in our court case. >> this is the location of the east louisiana railroad. in 1892 on june 7th, homer plessy approached the train depot over here at press and charters, and purchased a ticket to board the east louisiana railroad car, which was mandated that separate cars be established for blacks and whites. one block away he was arrested at press and royal streets. this was not a random act of civil disobedience. it was a well thought out plan crafted by the citizens committee. a multiracial group of citizens here in new orleans made up of 18 lawyers, prominent citizens who were totally against the segregation laws established by louisiana legislature in 1890.
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the conductor and the arresting officer c.c. cain already knew homer plessy was going to be riding the train that day. they were part of the plan organized by the citizens committee. the east louisiana railroad did not agree with segregation. his case started as a local case in new orleans to fight against louisiana's separate car law. eventually it was moved to the state level, and eventually to be known as the infamous landmark plessy versus ferguson case of 1896. >> that's keith ferguson -- excuse me, keith plessy, who is a descendant of the defendant in this case, and we're going to learn more about his story as this unfolds. let me introduce you to our two guests at the table tonight. they'll be us for the next 90 minutes to help us understand this case, the american history at the time and its implications for our society. ted shaw, the director of the university of north carolina's school of law, center for civil
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rights. part of his career, he was former director council and the president of the naacp legal defense fund 2004 to 2008. welcome to our program. mike clurman teaches, and he's the author of "from gym crow to civil rights" earlier in his legal career he clerked nor ruth bader ginsburg when she served on the u.s. court of appeals. thanks for being here. >> we always ask the question, how did this become a landmark case. most of the high school students who are watching this tonight have this in their high school curriculum. how did it get there? >> well, it got there because as keith plessy said in the video, this was a plan test case. and i think one of the things that is worth pointing out that
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this case was decided in 1896. and this was the kind of final straw when it came to the end of the reconstruction era. but it also was important to point out something that most people never heard of. that is to say, a year before the supreme court decided plessy, there was a conference in atlanta, the atlanta exposition. and booker t. washington, the most famous african-american in the country at that time spoke at that convention, the only african-american, i think, to speak there. and he offered a compromise. it was the -- called the atlantic compromise, which he was essentially saying to black people in the south, don't challenge white people for political power. don't try to run for office.
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don't try to desegregate schools and other institutions. cast down your buckets where you are, he told them. do industrial work, et cetera. that's something that made a lot of white southerners feel comfortable. but essentially he was saying to white southerners that black people should do exactly what the supreme court suggested should happen a year later. i don't have any evidence that the supreme court was aware of what booker t. washington said, but i wouldn't be surprised if they were. and so this was an era in which the jim crow laws came into being. but it was also because of the necessity of challenging segregation laws that were already in place. >> mike clurman, this was a fourteenth amendment test.
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what was central to the case? >> plessy is arguing it violates the equal protection clause and it violates the thirteenth amendment. it's a badger incident of slavery, but also that the government ought not to be making any laws that contain racial distinctions and for the government to do so violates the equal protection clause. >> these are the key dates in this case as it unfolds legally. first of all, louisiana passed its separate car act in 1890. it took two years before homer plessy's arrest, 1892, and his loss in louisiana state court. and then it took until 1896 for plessy's appeal to reach the supreme court and the case was decided just a month after it was heard. we're going to learn more about the history that unfolded all of those events. but the louisiana law, 1890, so louisiana wasn't the first state to have a separate railroad car. what was happening in the south
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that these railroad car laws were beginning to be passed? >> historians disagree a little bit about how integrated the railroads were before southern states started to mandate segregation. so i think there's some evidence to believe that you had less and less integration over time even before southern states began passing these laws. florida was the first one in 1887. then most of the rest of the south followed. there was a gap in time. and then the eastern seaboard states in the south followed around 1898. but most historians think that already southern life was becoming more segregated. it was becoming more dangerous for african-americans to try to mix with whites. it also made a difference that the united states supreme court in 1883 had struck down the federal public accommodations law, and that opened up room for southern states to pass these segregation statutes.
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it probably also mattered that a democrat finally won control of the white house again in 1884. you had a democratic administration. this was an era when the democratic party was very much not the party of civil rights. the republican party, the party of lincoln, was the party that was most protective of civil rights. so now you had a government in washington, d.c. that wasn't interested in enforcing civil rights anymore, and that sort of opened the way for southern states to try to reassert themselves by insisting on segregation. >> one point -- >> one second before we do that. i want to put the text of the law on the screen so you can talk more about it. one provision of it, the 1890 louisiana separate car act. be it enacted by the general assembly of the state of louisiana that all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races. you wanted to make a point about this law? >> well, i was going to point out that this was not the first
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time louisiana was engaged with the question of whether it was legal to segregate people who were using transportation. i think it was 1878. but there was a call called hall versus daquid in which a black woman was taking a steam boat down the mississippi river to get to -- she was well off. she was trying to get to her plantation she owned. and she was ejected from her cabin, first class cabin as a consequence of being african-american. and so that challenge actually went to court, and it turned ultimately on a question that was not irrelevant to plessy. and it turned on the question of the fact that that steam ship started its journey outside of
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the state. and so as a consequence -- >> interstate commerce. >> interstate commerce clause governed. if it was intrastate, it might have been a different result. you had a similar issue actually in plessy. because plessy wasn't the first individual to challenge the railroad law that you just put up on the screen. there was another individual, but again that trip started outside of the state. so the same result. plessy's case was totally intrastate. so it raised the question, and only the question of whether or not it was constitutional to segregate him and the railroad car under the state law. >> mike lureman, it's really an interesting note that people should understand the railroad companies didn't like this law either because it was expensive. >> so in more than one way they might have to put additional cars on the train, and their conductors have to police race
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relations. if you made a mistake, you took somebody you thought was white or black and put them in the other car and it turned out they weren't black, and they could sue you. it could be very expensive for the railroad companies. >> after this law was passed, the committee of citizens was formed. and keith plessy talked about that. it was an interracial group in the city of new orleans. and they hired a lawyer to help guide them through this. and this is one of the things that's wonderful about this series. because this is a gentleman who deserves a place in civil rights history. albion tourget. >> he was a white union soldier. he fought in the civil war. and was three times wounded and also, i think, served a period
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of four months as a prisoner of war. after the war he came back from the south, lived in north carolina, and, in fact, he was engaged in some kind of tree farming business. but he also was politically active and outspoken because he believed deeply in civil rights and constitutional rights for the freed men and women, freedmen at the time. he ran into some problems because of that. and his safety was at issue. and so he left and he went to new york. he lived in upstate new york, and it was there, or from there, that when he heard about the louisiana law and the challenge, the plessy challenge, that he wrote an article about it that appeared in the chicago newspaper. he was then contacted by the citizens committee because they knew this was a lawyer who had
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experience and could be helpful. and so he came on board and affiliated himself with the local new orleans lawyer, a lawyer by the name of walker who handled the matter in new orleans courts. and that's how he got involved in the case. >> he is described in some biographies as the nation's leading civil rights lawyer of the era, took on the case pro bono. can you add anymore meat on the bones people should know about him? >> i don't know as much about him as i would like. he was a famous novelist. he wrote books and wrote them anonymously. he was worried if he affixed his name to the books he was writing there would be consequences to pay in an era that people were apt to use violence to suppress opinions they didn't like. he sold 200,000 copies of a book anonymously, and then he wrote another book and he signed it as the author of this first book, wouldn't put his name on his book. >> a nice lead-in to our visit
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to the museum in westfield, new york. to learn more about his books. >> because of his relationship with former slaves during the civil war and right after, during reconstruction, he saw firsthand what the problems were, and he wanted to fix those problems. he started writing and did articles on civil rights, and he started writing books. 1879 the first book he wrote was called "a fool's errand," and it was during reconstruction, and a the lot of people down there didn't want to hear about former slaves having rights. it was a target point that made a lot of people angry. and it's so controversial that he never put his name in the book. so it's a fools errand written by one of the fools. his name does not appear. it was so successful that he decided then to start writing more novels and books. the second book the same way, bricks without straw by the author of a fools errand, no
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name. >> and albion tourget argued this case before the supreme court, and later on in the program we'll learn more about the centrality of the argument. i want to get you more involved. if you live in the eastern or central time zones, 202-748- -- you can also tweet us a comment. use the #landmarkcases when you do, and we'll mix tweets throughout our program for our two guests. so homer plessy was a member of the citizens committee in new orleans. how did he become the central figure in this case? >> ted, do you want to -- >> well, after the first case, the case that i mentioned before, failed because of the issue of interstate commerce, the committee needed to come up with someone else. and he actually knew the
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individual who headed up the committee. because of that relationship he agreed that he would be the plaintiff in the test case. the other thing that's important to acknowledge is that there was a long history in new orleans of an african-american upper class, so to speak, relatively speaking, not upper class, but they tended to be light skinned, almost exclusively, as homer plessy was. this was an individual who could pass for white. that's an important part of the story, an important part of the test. he announced that he was a black man, or a negro or colored man at the time to the conductor. this was all prearranged and it led to his arrest. but that was an essential part of this story, and of this
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committee. >> so he could easily pass for white, but as we said before -- >> he could. >> the train company didn't like this law either, and they were involved in helping set the test case. i read that they hired the detective that made the arrest so that he was arrested on the right charges,vagrancy or other things. he only went one block before the arrest was made. is this a new concept for people, gathering together as citizens to push a case to the court? >> i think there were other examples. there's a case in the first decade in the supreme court of the 1790s when somebody wanted to test the constitutionality of a tax on carriages. they created a phony case and they managed to convince the supreme court to take it. i think there were a lot of marshall era cases in the early 19th century where people would manage to fabricate cases in
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order to get something tested in the supreme court. >> so first of all it had to go through the state courts because it was really the state law that was being tested. this is where john ferguson comes into the story. can you tell us about him? >> john ferguson was the judge. he knew the case was coming also, apparently. but he was the judge before homer plessy was, i guess he was arraigned or something comparable to that. and he originally was from massachusetts and had come south after the civil war and married the daughter of a prominent lawyer and he became active in state politics. as a consequence of that activity, ran for the bench and became a judge. and so that's a little bit about him. >> is it important to know what his finding was in this case and what his legal thinking was, that he upheld the state law?
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>> oh, he knew that he -- and ruled in a way that indicated that homer plessy had a tough row to hoe. the law that was being challenged was going to be upheld. and so he ruled against homer plessy. >> we saw in our timeline that it took almost three and a half years for this case to make it to the supreme court. part of that was some strategy on the part of albino tourget, hoping for a more favorable court. >> i don't know specifically why this case was being litigated for so long. it wasn't unusual in the 19th century for cases to take a long time to get to the supreme court. i can think of cases in the 1830s that were first argued in 1831, but never got decided until after john marshall had died, until 1837.
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it wasn't that unusual for cases to take a long time to percolate. but even today, it's not unusual for it to take a couple years for something to get to the supreme court. but there might have been something specific going on. i don't know, ted, do you know why it took that long? >> well, i think you're correct when you say that it took some time, and it's a rule today, it's always been a rule that it takes a while for these cases to get there. albino tourget never to my knowledge set foot in the south again, certainly not in new orleans during the time the case was being litigated. and the mails were notoriously slow. as a consequence, his litigating the case also had a time element that was added. i don't know if that really explains why it took so long for it to get there. i also want to mention there was
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another lawyer, another white lawyer who was engaged in the case. and that was samuel phillips. and i have to mention him because i teach at the university of north carolina at chapel hill, and phillips and his family were very much part of the university of north carolina at chapel hill. but he also served as the solicitor general of the united states for quite some time, one of the longest serving solicitors general. so he also became persona non-grata in the south and had to move to washington, d.c. and did, and worked most of his life here in washington. >> we met samuel phillips in an earlier case. he was the solicitor general during the civil rights cases. >> that's right. >> and argued the case on behalf of the united states and lost and went into private practice and then joined this case as a private practice lawyer. another person that belongs in
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the civil rights history annals in our country. first caller is charles in ohio. >> caller: thank you. there's been a lot of discussion recently about jim crow laws. who is jim crow? >> all right, thanks. what is the origin of the name jim crow applied to those laws? >> well, i don't know that i would claim to have the best understanding. i think it's a nickname that was given, but i don't remember all of the origins of this nickname for segregation, for what used to be called a little earlier in the 19th century black laws, or black codes. but the term jim crow was coined at some point, and it stuck. >> next is bob watching us in
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houston. hi, bob. bob, you're on the air. >> caller: this is josh. >> josh is ini algona, iowa, welcome, sir. >> caller: when plessy was decided was there an outcry denouncing the decision? and were there laws passed nationally right after plessy decision was handed down? >> there was almost no immediate reaction to the plessy case. very little reaction. i know there was some newspapers in the north that commented on it in brooklyn and chicago, et cetera. they didn't have a whole lot to say about it. there wasn't a national outcry. if you had told somebody that we'd be sitting here a hundred
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some-odd years later talking about it as a landmark case, i don't know that they would have recognized it for that purpose. as to whether there were national laws passed, these were state laws that were being passed. and i don't think congress was engaged very much in passing laws with respect to racial segregation at this time, although i'm sitting next to someone who may know more than i know about that. >> so on the point about northern reaction, "the new york times" reported it on page 3 in a column on railroad news. they weren't even thinking about it as a civil rights issue. it's exactly right, we wouldn't think of plessy as a landmark case had it not been for brown. it's not like -- there were black newspapers that were critical of the decision, but it's certainly not the case that most white americans were surprised and they certainly were supportive of what the court was doing. congress wasn't going to pass
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any civil rights legislation for another 60 years. that was just not even in the cards. there were white southerners who wanted congress to do negative things on civil rights. so when democrats and the south kind of took over congress and elected woodrow wilson in 1912, there was discussion about repealing the fifteenth amendment which guarantees black suffrage. woodrow wilson -- i'm not aware of an effort to pass segregation law. you wouldn't have thought congress would have authority to do that. that's something the states would resolve. >> it would have been superfluous. segregation was the law of the land in south. >> twitter, given that louisiana has a unique civil law
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tradition, such a statute would be hard to challenge. what is particular about louisiana's law and its traditions? >> well, it's the code state. that is to say, it traces its legal system to france, and not, you know, to england, like the rest of the united states. and so i think that's the reference that the commentator or the questioner is making. i'm not sure how that would have impacted, you know, how this case played out. i don't know that it would have. >> no. i mean, louisiana is subject to the fourteenth amendment the same way as everybody else, and other southern states passed very similar statues. so i think louisiana was distinctive in some ways. there were some different rules with regard to slavery, for example, slaves in louisiana often had a stronger case in their freedom suits than slaves in other southern states that
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didn't have the napoleonic code background. on this issue i don't think there would be any difference. >> ironically louisiana was also the state that was involved in the first case that interpreted and applied the fourteenth amendment, the slaughter house cases. but that's coincidental. >> we're talking about plessy versus ferguson, 1896, bob is up next in houston. thanks, bob, for waiting, you're on the air. >> caller: yes, really enjoying this discussion about a really important case that has implications today. one thing i would like to ask you folks, there had been a mention there about the question of interstate railroad travel and how it affected the rulings on, you know, the rights of
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black people to sit in so-called white compartments. were there any restrictions that came up under other cases on banning segregation in interstate travel, or were there any attempts made to introduce such a ban? >> so one of the first federal regulations that applies to railroads is interstate commerce act of 1887, and there had been discussions during the congressional hearings on that about regulating the issue of segregation. the final version of the statute forbids undue or unreasonable discrimination, which is mostly about the rates that are charged by railroad companies. but the interstate commerce commission actually adjudicated some cases on the issue of whether undue -- the prohibition on undue or unreasonable discrimination, whether that
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forbade segregation. you've got to allow african-americans to travel, but segregation is not undue discrimination, the interstate commerce commission ruled in favor of the practice of segregation. >> solomon is up next, washington, d.c. hi, solomon. >> caller: yes, good evening. my question is, did the tanny court, dread scott decision have any bearing on the decision for plessy? and if so, i would like to know. thank you. >> well, you know, tawny's court, of course, decided the other most infamous case some people call this -- in legal academia, and we don't want to get too much tied up in that here, but called those cases the anti-cannon, some of the worst cases, we're not proud of them. so dread scott, certainly the --
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tawny says that and wrote that black people had no rights that white people were bound to respect. and quite gratuitously ruled that black people could not be citizens of the united states, whether they were slaves or free. so here we have the court in 1896 deciding that separate but equal was unconstitutional. the two cases, to the extent they have a relationship at all, are related perhaps in the fact that they are two of the worst cases that the supreme court decided, and it deprived african-americans of basic and fundamental rights. there's no -- i don't see any legal connection between the two cases because dread scott, of
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course, was overruled by the thirteenth amendment. one could point out that the thirteenth amendment was part of the argument that was being made along with the fourteenth amendment in the plessy case. but other than that, i'm not sure that i think that the two are related. >> could i just add something? it's not inconsistent at all. i agree with what ted said. i think it's important to note that the dread scott court was dominated by southerners. there were five southerners in dread scott. and the plessy court is actually controlled by northerners. so it's kind of stunning that even a court with the majority of northerners is so unfriendly to the rights of african-americans. and then the other point is, if you took a referendum vote of americans at the time of those decisions, both of those rulings would have been more popular than not. so we regard them as outrageous decisions, and of course they are given our values today, but most white americans, which is
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most americans in 1857, agreed that african-americans didn't have constitutional rights and the overwhelming majority of white americans in 1896 favored racial segregation. these are court decisions that are very consonant with the dominant mores of the age. our views have changed since then. we're able to criticize the decisions. >> the court heard the case in april of 1896. this is the room inside the u.s. capital. the court did not have a home of its own at this point in history. where the court sat. today it is set up as the old supreme court chamber -- or, excuse me, the old senate chamber. the court was meeting in the capital in this space. we're going to talk a little bit about the justices on the court. the chief justice was melville fuller, edward white, who had been previously a louisiana senator, and later nominated by taft to be chief justice.
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rufus peckham. the harrison appointies, david brewer, he did not participate in the plessy case. henry brown, who ended up writing the majority opinion in this case. and george sharus, a harrison appointee. one lincoln appointee. steven field. an arthur appointee sat on the court then, horace gray, and john marshall harlan, and he wrote the lone dissent in this case. >> harlan is the dissenter and somewhat unpredictable dissenter, and he had opposed the thirteenth amendment as a congressman from kentucky, the thirteenth amendment is the one abolishing slavery and he
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opposed civil rights legislation in 1866 and 1875. so it's a little bit ironic that harlan is the one dissenter, although it's worth noting that we know from other opinions he wrote in extrajudicial writings that even john harlan would have had no problem with state-mandated segregation of education. he distinguished state-mandated segregation of railroad passengers. justice white -- so maybe it's worth noting that, you know, you didn't have a democratic president all the way from the civil war until 1884. that's the first time you could get southerners on the supreme court again. one of those southerners is edward white who had been a confederate soldier, and had apparently belonged to clan-like organizations in louisiana in the years after the civil war. so it took a long time for the south to take a political comeback after the civil war. but finally they're getting justices, and some of them are ones we wouldn't feel very comfortable with.
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even the chief justice is a democrat that opposed lincoln's emancipation proclamation during the civil war, and played a role in segregating chicago's schools. so some of these justices don't have very attractive backgrounds from our perspective. i don't know how much it matters whether they're democrats or republicans. the republican party was giving up on its commitment to protecting the civil and political rights of southern blacks. so justice brown ought to have been someone who you would expect would be supportive of civil rights. he comes from massachusetts, the cradle of abolitionism. but even justice brown who writes the opinion is final with racial segregation. >> the other thing i recall is that the late aleon higinbotham, third circuit african-american judge, and also a scholar on race in the colonial era, but i
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remember him saying that if you looked at that court, the dissenter, harlan, was the only one who didn't go to one of the top law schools, harvards and yale, et cetera. all these other justices on that court went to some of these, quote, best schools. harlan comes from kentucky, was educated in kentucky at -- not at an ivy league school. he was the one who dissented from the separate but equal ruling. >> as we said, that albion tourget was the lead counsel. we're learning to the museum in westfield, new york, which has a collection of his papers. >> in our archives we have -- this is the actual document that he held and read at the supreme
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court. it's 45 pages long. we don't know what he ever actually got through it all because they stop and ask questions. and this was a pretty lengthy thing. so we're not even sure he made it through the whole thing at the supreme court. >> 45-page oral argument. you said at the outset that he based his challenge on the thirteenth and fourteenth amendments, can you give us a synopsis of what kind of arguments he made before the court? >> the thirteenth amendment is the argument that racial segregation is one of the badges or incidents of slavery. so the thirteenth amendment forbids slavery, but it's also interpreted to allow congress in enforcing it to go somewhat broader, a court enforcing it to go somewhat broader, but not so far as to have a ruling on segregation. segregation is not an incident of slavery. the government is not allowed to know the race of its citizens. the government has to be color blind, and that being able to
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travel in a public accommodation without being insulted because of your race is a basic civil right, and the 14th amendment guarantees that all american -- all people in the united states, not even just citizens, are protected in the equal protection of the law. so that's basically the argument. >> the supreme court today hears oral arguments about 70, 75 of them a year, they're, for the most part, confined to one hour. what was it like back then? >> i don't know whether -- i can tell you earlier they would sometimes spend days arguing cases. but i don't think that's true by the 1890s. and plessy is not regarded contemporaneously as a big deal. it's not like a case where you would allocate an extraordinary amount of time. it's just a routine railroad regulation case. so i imagine they're getting an hour or something like that. in the 1830s, daniel webster would stand up and they would have arguments for three days. but they didn't rely on briefing then.
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it was all done through oral argument. >> i think that's right. although when brown was argued in the 1950s, brown was one of these cases that was argued over a number of days. and of course it was argued twice. so there were cases that were argued for and over days. although i agree, i doubt that plessy would be one of them. >> for the state of louisiana, alexander porter morris argued for the state, and it was his one case before the united states supreme court. we'll take more phone calls, and then we'll come back and learn about the decision, handed down in may of 1896. here from cici in portland, oregon. >> caller: hi, i have two questions, one for dr. shaw, wanted to know how the plessy case is taught in law schools, what are the lessons or legal
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issues that you want students to learn from the plessy case? and, you know, just the prominence that it has in law school curriculum, what role does it have? what lessons or ideas are you trying to bring across to the students? and then the other question is, how are people jurists today who define themselves as strict constructionists, how do they view the plessy decision, how do they interpret it or how does it -- how do they just wrestle with it in their mind with that point of view of being an originalist or strict constructionist? >> well, with respect to the first question, of course, how it's taught in law school depends on who's teaching it. and i know when i was in law school a long time ago certainly we were taught that plessy was not a decision that the court
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made which stood up over time. although after brown versus board of education was decided in the 1950s, 1954, there were scholars who said that plessy, in fact, was decided on grounds that were pretty solid. and then brown -- brown's grounds weren't decided. well, the way i teach plessy, there are a few things i want to get out of it. one of it is that it is the capstone case of the redemption era, the era that ended reconstruction. and if you read the decision, one of the things about it is that there's this element of intellectual dishonesty in the decision that i point out to
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students. justice brown at one point talks about the implication that was argued that separate but equal stigmatized black people. and he said that to the extent that there's any stigma imputed by the law, it's not because the law did so itself, or was intended to do so, but because black people interpreted it that way. it's kind of blaming the victim phenomenon in the case. the other thing that i think is important, there's so much more we could say in talking about plessy, but harlan's dissent is the thing that perhaps survives most. and that deserves some attention. i'm sure we're going to talk about his -- his dissent. and so we'll get to that.
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but i think it's important, also, for law students to understand that there were twists and turns and, you know, we can't ever think that because a case is decided in a particular way or a constitutional matter is resolved that it's resolved for all eternity. that isn't necessarily so. and that's part of what we see when we see plessy. and i'll wait until we get back to the dissent itself. as to your second question, i think i'll probably turn that over to my colleague here. >> i think the question of racial segregation is a real problem, and always has been for originalists. it's because of something that ted alluded to. we all assume that brown is obviously right, but as a matter of the original understanding of the fourteenth amendment brown is actually somewhat problematic. and we are going to talk more
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about that. but the people who wrote the fourteenth amendment for the most part if you ask them would have denied that what they were trying to do was require school integration or railroad integration. they were trying to prevent the recently freed slaves from being denied basic rights of contract and legal property and legal protection. they weren't trying to do things like desegregate the schools, for example, the same congress that wrote the fourteenth amendment also ran the school system in the district of columbia and they segregated it. originalists want to be able to defend brown because we all regard brown has just and heroic, and obviously right. they had gone to heroic efforts to tell a different sort of history. they're happy to dismiss plessy. they would say obviously plessy is an example of why you should be originalists because plessy is the court reflecting the
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contemporary mores of the time and departing from the original understanding. the problem is they're assuming the original understanding of the fourteenth amendment was desegregation. and i don't think that's actually the best historical rendering of what the people who wrote the fourteenth amendment were trying to do. >> seth is in chapel hill. you're on the air, welcome. >> caller: i actually have a question about harlan's dissent. and it is apparently sort of what is the preferred doctrine of today. but i'm wondering if you could talk about some of the potential issues with his opinion, including some of his racist language, where he talks about whites being clearly superior. and then his idea of a color blind constitution. >> i want to put up some language from the majority opinion and harlan's dissent, and then we will answer his question. so it was a seven to one decision in may of 1896. as we mentioned, one justice not
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participating. and the one vote dissent was harlan's. justice brown wrote the majority opinion. here's a bit of what he said. 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 comingling of the two races upon terms unsatisfactory to either. what are you hearing there legally? >> well, i smile for a moment when you read that language. that language always sticks out for me in the nature of things. you know, it's loaded. but it also reminds me of another case that most americans don't know about involving women, bradwell versus illinois, the question of whether or not a woman could be a member of the illinois bar, and the court ruled that she couldn't be. but there's also that phrase in
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that opinion, in the nature of things. so the assumptions about african-americans and plessy and women and bradwell were loaded assumptions that reflected the bias that was the rule, not the exception of the time. but the language in the dissent about color blindness has had such power, staying power, that many people believe that it is -- it has the force of law. and, you know, we should talk about that language. the idea of a color blind constitution is very appealing. it's a very eloquent, you know -- it's very eloquent
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language. but the supreme court has never ruled that the constitution requires color blindness in all respects, although many people act as if it does, including some of the justices on the supreme court. so we should have a little bit more discussion on that perhaps. >> here's exactly what he wrote. our constitution is color-blind, this is justice john marshall harlan, 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. on that phrase, we should note that it was actually albion tourget who used the color blind phrase. >> tourget is more committed to strong equality than justice harlan is. it's important to emphasize, all of these justices are likely supportive of white supremacy in some form. harlan was a slave owner, an
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opponent of emancipating slaves in the thirteenth amendment and an opponent of civil rights legislation. he does say racist things in his opinion, he believes all men have race pride. probably. he believes the white race will continue to exert its supremacy but that it's a mistake to use law to accomplish that through segregation. he said some extremely racist things about chinese americans as well. it's a mistake to think that in 1986 that there are any neoabolition insist on the supreme court. they think that interracial march is a bad thing. most of them think african-americans shouldn't be voting or sitting on a jury. teddy roosevelt a few years later is going to talk about the importance of race purity should
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be remain. this is what most whites think and justices are a product of that. -- just happen to draw the line at state mandated transportation. >> we had an early caller ask what strict reinstruction of this would be. let's listen to what james thomas had to say. >> people look at the court and kind of a current events mode. our work is long-term work and has to have a much longer self-life. if you look at the first just hard lon, he was -- look how long his opinions shelf life was. his descent, it has to be almost timeless. >> the court needs to take the long view. the court, what are your comments when you listen to that? >> i have a couple different reactions. we'd all love it if the supreme court played the role of heroic
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defenders and rights of minorities, but the supreme court that was so out of touch. the supreme court either destroyed itself or was overturn by constitutional amendments or have its decisionings ignored. the supreme court decided in favor of gay marriage in 2015. if they tried to do that 30 or 40 years earlier nobody would have paid any attention. if the supreme court wuf decided well versus wade and struck down the death penalty, the country wouldn't been prepared to accept that. that's true about education, the naacp didn't bring a challenge of segregation until after world war ii. they understood they wouldn't have won and even if they did the country would have rebelled against the decision. it's nice to believe the supreme court can always do the right thing but the supreme court
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works within the historical context. there's a limit on how much they can make society better than its inclined to be. >> that caller made reference to painful language. and here's a bit that he wrote that the caller is referring to. there's a race so additional from our own that we do not permit those belonging to it become citizens of united states. persons belonging to it are with few exceptions absolutely excluded from our country. i allude chinese. but a -- while citizens of the back race in louisiana who are entitled by law to participate in the control of nation are entitled to be criminals if they ride a public coach occupied by citizens of the white race. how should we view john marshall hard lon? >> in some ways a man of his
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time. to system degree a little bit racist of people of his time and some of those on the supreme court. there's no doubt, as professor mentioned a moment ago, no doubt the view with respect to asian and chinese americans were just flat out racist. already there had been a lot of litigation, or a significant amount of litigation, i should say, with respect to chinese americans, asian americans, where they stood, would they be deemed white for some purpose, et cetera. so, it isn't like they weren't also on the table when it came to constitutional rights. this is a very unfortunate part of this opinion and -- and very ray sis.
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but, again, harlon's view, everyone with respect to african-americans, he didn't deem african-americans to be social equals, what he was saying in effect was that it is unseemly and unnecessary for us as white americans to behave this white. that, there's no fear that we should have that black people are going to be our equals. it's just not gone happen. the white race has been and always will be the dominant race. so, he believed in white supremacy also. >> avenue losing his challenge in supreme court, homer possessionsy wen back to his home in new orleans. he paid his $25 fine for breaking the law. he spend the rest of his life selling insurance and died in his 60s and buried in new orleans. this did not become the center piece of his life.
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we'll take more calls and we'll learn about what this decision meant for life for african-americans in our country. let's hear from jim in omaha. you're on the air. >> caller: thanks for taking my call. i'm learning something new from you a you, the moderator and your guests. one of things i am learning is the history of our country, the understandings of these 13th, 14th, constructional amendments, the constructional amendments. and the idea that the founders when they did what they did it at the convention of 1787, knowing they had an issue with slavery, knowing that they -- basically they would like to see it be fixed in the future. i would think that all this stuff that's going -- even with the jim crow laws, these three amendments, what you guys have
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been saying tonight, i guess it was tough in that time frame of our history for the people of different races to understand -- i guess what i'm really getting at is the 14th amendment. knowing that because of -- is why we got the 14th amendment. knowing that we wanted to give them citizenship and that we all should work together and shouldn't have taken until 1964 civil rights amendment just because of the the jim crow laws. i'd like to hear the two gentlemen comment on it. >> thank you for that comment. certainly, i think we should understand the three reconstruction amendments, the 13th, 14th and 15th amendments as being a kind of second founding. i like to think about those who
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advocated for it as being a second generation of founding fathers and mothers, because there were women who were engaged in advocating for the 14th amendment, although women found themselves to be terribly betrayed when it came to both the 14th and 15th amendments in some ways, in profound ways. i think that the country was relayed by the civil war and after the civil war, and i think that's what the caller in part is referring to. i would add that it's important to think about the relationship between the post-civil war amendments, and particularly the 13 and 14th amendments, which were argue in tandem. i think that one of the things that we've lost with the supreme court's cases is this relationship and understanding of the relationship between the 13th and the 14th amendment.
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the 13th amendment wasn't only being ending slavery, although the court seem to have said that in the civil right's cases but also was about the badges and incidents of slavery. and that somehow was lost by the supreme court. so, yes, it took us another 100 years after these post-civil war amendments to really breathe life into them. and brian was a key turning point, and brown of course, in part sounded the death now. although it didn't kill it completely for plus of board of education, but it was the death now of possessionsy. >> michael, you literally wrote the book from jim crow to civil rights. wald you say to that caller? >> i think it's important to see
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that there's backlash and people don't give up the investment easily. the 13th, 14th and 15th amendments were about trying to give african-americans basic civil rights, voting rights and ending slavery. there was a service racial effort made in progress, african-americans turned out to vote in large if you remembers. they elected large numbers of office holders that got access to the public education for the first time in the south. white southerners were prepared to fight against that and ultimately they wore down the will of white northerners which had never been that great, and reconstruction was ended and there was a period of jim crow. then you had a second reconstruction. but the second reconstruction also produced backlash. i think it's important to see that it's not like the struggle had ended.
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today you have mass incarceration, unequal schools. you have poverty and segregation. the struggle goes on and there's always resistance to change. >> we said that earlier, the decision really was not widely noted at the time because it reflected the view of the majority. here's just one article in a kentucky newspaper. several coaches held to be constitutional by a u.s. court. inequality two step. civil rights cases says there's not enough state action to uphold congress fall law to stop discrimination. even with the state law it need only be separate and equalism next up. you're on the air. welcome. >> caller: hi, thank you. so, there's a lot of discussion about how rulings in the supreme court can deny americans rights
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that they should have and you mentioned how diversity can play a rule as well. so, how do you think of the current demographics of the today's supreme court could impact on to do's rulings taking into account endder ethnicity? we don't have the same situation that they had where americans are being defied rights because it's not of the time? thanks. >> thanks. you want to take that? >> sure. i think supreme court justices in their constitutional rulings always reflect their backgrounds and political beliefs and ideologic ideological views. one thing about justices they tend to be very educated and for the last few years they've gone to harvard law schools.
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it's one reason why the supreme court in the last 50, 60 years have been very liberal than most americans. much more committed to the separation of church and state, much more progressive in their views on sex wall orientation and on support of gay marriage. that's a good reason that supreme court decided brown at the time where the country was divided on race. why the supreme court struck down school prayer and ruled in abortion rights and struck down the death penalty. i think what's happened in the last 30 or 40 years is that the political parties have understood that the supreme court is very very important for them to control and to some extent they've been able to nullify that progressive well-educated, relatively education lawyers intend to have. now what you're going to get is
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reliable literals appointed by democrats and literals appointed by republicans. the republicans have managed to keep control of the supreme court which they've basically had for the last 45 years and that has a big effect. it has an effect on issues like gun control, based affirmative action, campaign finance reform and i think you're going to see also the bias of elite lawyers and more predictable political decision making by people who were appointed by parties for a particular reason. >> if i may, i want to point out another factor, at least with respect to the demise of plessy. although the court never said a word about it in brown, we have to understand that brown was decided during the cold war, and you had america after world war
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ii in this cold war, this battle with the soviet union, with this tremendous flaw that was evident in the united states. how does it claim to be the beacon of flocksy and at the same time even after it fought a war against european races and against jews, at the same time it still had segregation in place, in tact. you know, plessy had to be abandoned when it was abandoned and in part it wasn't just a matter of law, it was a matter of the gio politics at the time that -- that pushed the court to where it went and brown when it went there. >> james is in greenfield
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massachusetts. welcome to our program on blessy, 1986 k. >> caller: thank you i've got two questions. people who planned the court case before -- gave birth to this case before also b touche and samuel philips. can you give possession some kind of an idea of who they were, were any women there in that decision? were there any blacks or whites, make up of that decision? and the other thing was seen that brown delivered the opinion of the court, he was a native of massachusetts, he refers in his decision that to the early of city of boston, i wonder can you explain how that played a role
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in this case as far as he was concerned? thank you very much. >> thank you. in the interest of time i'm going to have you ask the first one and you answer the second one. so he was basically asking about the women involved. can you tell us about the challenge in this. >> i don't think it was a huge group. it was somewhere around 15 and 20 and as i said earlier, there were these african-americans who were part of this middle upper class group of people, you know, light skinned, privileged, et cetera. they understood they were going to be treated the same way as dark skinned african-americans and so they wanted to challenge this law. i think the group was interracial although it was perhaps more made up of this light skinned african-american component of the group. they few that they're lives were going to be very heavily
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circumspect by this law and its simple cases and other area of life. >> justice brown, decision and city of boston? >> right. there's a case about 1849 or 1850 when charles, one of the great radical republicans who did believe in a strong form of racial equality during reconstruction, he was arguing against school segregation in the city of boston. he was invoking the free and equal provision of the massachusetts constitution which is the same provisions that the court in the 1780s had used to abolish slavery in massachusetts. he was arguing school segregation is inconsistent with the free and equal provision of the constitution, and the massachusetts court lemuel shaw said, no, separate but equal is consistent with this massachusetts's version of the
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equal protection clause and that seemed significant because massachusetts is the state that you think of as the cradle of -- but even massachusetts seem to think segregation was permissible under the state equal protection claus. >> let's talk about the legal amp cases. for example on twitter, doctor now tweets this question, did the plessy case effect other races? let me ask and both of you answer. how much was plessy cite as people cited jim crow laws? >> well, in the very beginning of the early 20th century there remained the number of cases in the south that involved jury
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service and voting in a view of they had cases, 1901, 1903, et cetera. those weren't successful for african-americans. there was a long dry spell with respect to using the 14th amendment for its original purpose, that is protecting african-americans. so, in 1917 there was a case that came out of the city of louisville involving housing segregation. ironically, maybe not ironically, the plaintiff was white and was trying to sell his home to an african-american man, and he -- he prevailed in his challenge to the city saying that they were discriminating and so he prevailed under the 14th amendment. for the most part, the 14th amendment didn't have a lot of force until the plan that the
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naacp and the legal defense fund devise when they began to challenge separate but equal and began to challenge it using the fact we eluded to before. the railroads didn't like segregation in plessy because it cost too much. segregation in education where they first began to challenge segregation was expensive. it was never meant to be equal and it wasn't going to be equalism they began there. that wasn't until the late 1930s and into the '40s that those cases began. that was the road to brown versus board of education. >> comments on plessy's importance to the law for the next several decades. >> two things, one is in a place like california where they barred segregation of african-americans in their constitution starting around 1880, they pan dated segregation of asian americans.
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in southern texas they certainly mandated segregation of latinos. i think it's a mistake to think that that's somehow inspired by plessy. segregation law were adopted before plessy. it was 15 years before plessy that they started segregated asians in separate schools. i don't think it was necessary for people who are inclined to adopt segregation to have the plessy decision but a lot of races and ethnic groups were segregating. in california it was much more important for people to discriminate against asians. asians were ten times as pop lus in california as african-americans were in the 19th centuries. it was asians that they were concerned about and they segregated them in separate schools. >> there was a case, versus rice
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in mississippi in which a chinese american man sued to challenge the segregation laws as plied to his daughter because they were assigned to schools for black folks and he wanted them to be able to attend a white school, because they were -- they were better schools, et cetera. he lost. so, the irony is that segregation played out in all kinds of twisted and ironic ways when it came to people of all races. in 1947 there was a case in california under state law that involves segregation of public schools called mendez. without going into the details of how that was decided it ended up that the mexican american children were admitted -- had to be admitted into the predominantly white school
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because the law didn't support the segregation there in state law in california. >> so our guests have explained how it took to 1954 in the brown versus board decision to unravel plessy versus ferguson. here's an excerpt from that decision. we conclude, says the supreme court that in the field of public education, the doctrine of separate but equal has no place. separate education are unherntly unequalism you talked about how important that that focused on education in that case. also by 1964 the civil rights acts were the next for plessy versus ferguson. here's a little bit of what civil rights act did. it banned racial discrimination in hotels, restaurants and other public akojss. it prohibited unwall voter requirements and prohibited segregation in schools and jobs. so, the legal framework was there but what was life really like for people in this country
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in the '50s, and '60s even with those laws and supreme court decisions enacted? >> well, from the time that plessy was decided and frankly before plessy was decided in 'respects, african-americans lived segregated lives in which they were treated as racial inferiors. when we think about the history in this country of slavery i think we have to think about a continue yum right on through jim crow up until the 1950s, brown versus board of education. even beyond that, we have to talk about in through the 1960s. wasn't until 1964 that the civil rights acts was passed and employment discrimination was legal. and discrimination in public accommodations and federally funded program wasn't until '65. the voting rights acts were
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passed. 1967 the supreme court struck down laws that banned interracial marriages. not until '68 after the assassination of martin luther king, with 50 years out from that assassination, almost to the day soon. it wasn't until then that the hair housing act was enacted. so, for black people during this period of time but also for other people of color, they lived with the rule of white supremacy, if it wasn't ex police sidly articulated in all respects about rule in most republicans. it wasn't until the civil rights movement in the '50s and '60s for that to be changed. even today, we still struggle with all of these issues, even though we've made tremendous
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progress in the united states. >> so, the brown decision was massively resissed by the white south. very little school desegregation took place in the ten years after brown. the civil right legislation that ted was referring to is impactful and is a function of the civil right's movement. brown did not desegregate many schools until the federal court in the 1964 freely and voluntarily rights act threaten to take away dollars from the schools that refused to segregate. the provision was very effective. to some effect tent there was a executive action problem, there was a lot of southern businesses who wanted to sell to black people. if they were worried they were the first to do so they would lose all their white customers. black -- i mean businessmen who were in business to make money would like to take the money of black people.
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but they were worried that their white customers would leave because they didn't want to sit down at a table next to a black person. so the federal government solve that problem by telling everybody all of you would have to desegregate at the same time, that was effective. the voter rights act were incredibly effective. in mississippi you go from fewer that 50% african-american age eligible, you go to 60% within a couple years. the federal government congress can act in ways the supreme court itself depends on other federal actors to enforce its decision. the civil rights laws are incredible important to the racial progress that it made. >> at the beginning of our program you met keith plessy, a descent dant. on the phone right now is a descendant of the judge ferguson. her name is phoebe ferguson.
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today she is the director of the plessy foundation. phoebe ferguson how long were you aware of your ancestor's ro role in this case? is it something you grew up foeing about? >> caller: good evening. actually no, we were unaware of our connection to judge ferguson and only became aware of it in 2002 when a gentleman had brought his former home here and wanted to restore it to its original vineyard architecture. and so, he called -- he finally found my number, apparently after 10 years, and he said, i bought your great great grandfather's house. you know the plessy versus
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ferguson judge. so, i happen to have a family tree given to me and i quickly took it out, i looked at it and there it was. and that was the beginning. >> how did you go from that surprise revelation to meeting keith plessy? >> caller: well, you know, i began to search and research and look up things and quickly found that a book had recently been written by a local historian here. keith welding medially and the book was entitled "we are free men" plessy versus plessy an entire -- in that book he had written an entire book about judge ferguson which was unusual. the book is about all the
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characters in detail, who all the citizen members were, who plessy was, who judge ferguson was. so he had met keith already and when i called him, he just, you know fell off his claire, he had both of us now. and le set up a surprise meeting. and, so i came to new orleans, and i met keith and i introduced myself and he introduced himself and as keith likes to tell the story, i just started apologizes not only for my ancestors role in the case but for slavery and pretty much all racial injustices thereafter. and keith just laughed he said it's no longer plessy versus ferguson it's plessy and ferguson. and we've been friends ever since. >> so what is the work of the plessy foundation? what do you do?
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>> caller: we teach the history of the case, and, you know why it's still relevant in today's world. we go to schools and teach the case to young kids, young as 7 grade and up to university level. we we have a day every year where we honor homer plessy, which was the day june 7, he was arrested in 1982. we put up certain markers and african-americans -- because as is the case with homer plessy there is no marker to -- to show what happened on that side and who -- you know, who the players were and how that story unfolded. and that new orleans was in fact, we like to think of the
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cradle of civil rights. so, we not only honor homer plessy but we also honor the other civil rights activists in the city of new orleans and hopefully we will expand. >> well, thank you very much for being part of our program tonight. and it's a nice coming together on this interesting chapter in american history and we -- i think it's probably interesting for all of us to hear your story and to meet you by phone, a descendant of judge ferguson in this case and keith plessy. thank you for adding to the understanding of your family however and how you are working to make the country better. appreciate your time. >> caller: my pleasure. >> we have a -- and plessy ferguson and ferguson foundation has a website. you can find them easy with a certain on the internet. we have seven minutes left in
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our program. i want to take some calls because we laid out the framework of there case. let's go to rachel in el paso. how rachel you're on. rachel. >> caller: hello. >> yes. what's your question please. >> caller: i have two questions. how did the passenger train case of plessy versus ferguson relate to schools of the brown versus board of education case? >> okay. and what's the second? >> caller: the second one is how does brown versus board of education relates to compromising history and what is the significance of it today? >> okay. we've done a bit of talking about that but if you can do a summation for the passenger train case and brown versus board for that student caller. >> well, we had talked about the relationship between plessy and education. and at the time plessy was decided it was quickly extended
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to all life of areas in the south. brown of course, happen to be an education case. brown did not ex splitly overrule plessy in all respects but it did break the back of segregation that was required and upheld under law. but there was series of cases that we decided very quickly after brown by the court and a very summary fashion that struck down segregation in swimming pools and other areas of public life libraries, et cetera. so, that was very important throughout public life. the other thing i think is important to remember, you know, why colleague talked about the 1964 civil rights act but there was more litigation to desegregate. wasn't until the supreme court decided in 1971, swan versus board of education that desegregation of public schools
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and many in the south actually happened. i have to mention that because the case was brought by julius chambers. but people should know who julius chamber were. >> i want to give a special thanks to the national constitution center, our partners and the second edition of landmark cases, helping us select the cases and advising us on legal issues behind them. also a remind we have the back of landmark cases. if you're following along in the 12 part series that we're putting together you can find easy access on manny is on, what's your question? >> caller: good evening i just want to know if the constitution machine something different back in the 1980s and do you see the
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possible that this docket reason is also under take given the divide in the country? >> michael clemming. >> actually protection had a very specific meaning to the people who wrote it. it meant that law had to be ply appli applied unequally to people the way it was written. if you had a law on bad murder you had to apply that law on african-americans who were killed the same way you'd use it to protect white people who were killed. that was not the way we involved the meaning of equal protection because that understanding is about the way the law is applied according to how it was written. we tend to think that there are strengths imposed by equal protection clause by treating people differently within the internal meaning of the law. for example, you don't get to discriminate against women, gays
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or african-americans. that's the way we understood it. they had a much narrower conception of what it meant. they were reacting to racial massacres in southern states and the southern states would do nothing to prosecute the murderers of african-americans. that's what the equal cause was about. >> i'm going to put it on screen because we're really running out of time. the 14th amendment and the heart of it. as we do that let's listen to michael in pennsylvania. outside of philadelphia. >> caller: great show. thank you. on the 14th amendment let me just say this, i don't understand why -- 14th amendment it allows for corporations or the basic bill of rights upon the states or into the states. what i don't understand is allow and why that was ignored with
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such a lengthy period of time i guess until 1920s or 1930s. yeah, i guess in retrospect it seems like it should have been almost i immediate. but was it the case where prejudice was so rampant amongst the judiciary that it was a preview judges to recognize the potential idea where the nation of incorporation? >> thank mike. we have a minute left. so 30 seconds on that big question. we have hit on these thing throughout the program but it sums up the question of what it was about, mike question. how do you respond to him? >> he's talking about the question of weathhether the or bill of right which is only applies to the government which is made applicable about the
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14th amendment. justices have disagreed about that. justice black and frung fort had a big disagreement in the 1940s and the courts sat divided on that question. the people who wrote the 14th amendment did intend to take the bill of rights and make them applicable in the states. i don't see that as about same sort of racism that led them to construe the equal protection clause. it's a different issue. >> the 14th amendment in its own terms applied against the state and should have been racial discrimination. and they didn't for a long time for the reasons that you and the caller eluded to and other reasons. >> ted shaw at the university of north carolina, he is the head of civil rights law.
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mi mike collard teaches at harvard. we thank you beth of you for being here for 90 minutes to understand the 1986 case of plessy versus ferguson. >> thank you. >> thank you. our pod cast, c-span the


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