The Virtue of Defeat: Plessy v. Ferguson in Retrospect

Abstract

The Virtue of Defeat: Plessy v. Ferguson in Retrospect Clarence Thomas As we near the end ofthis century, I would like to discuss a decision that came at the close of the last: Plessy v. Ferguson, the notorious 1896 case that helped usher in (or at least sanc­ tion) more than half-a-centuiyoflegalizedrac­ ism.' In particular, I would like to discuss it from the standpoint ofthose who were on the losing side and the virtues oflosing, especially in the face ofinsurmountable odds. I must say, in passing, that, as virtuous as it may be, losing is not an experience to which I hope to become that accustomed on this Court. The hundredth anniversary of Plessy has passed with almost the same lack of general interest that the decision received when Jus­ tice Henry Billings Brown delivered the opin­ ion for a 7-1 Court on May 18, 1896. As the historian C. Van Woodward describes it, in con­ trast to the great controversy that arose when the Court struck down much ofthe 1875 Civil Rights Act in the Civil Rights Cases,1 “the Plessy decision was accorded only short, in­ conspicuous news coverage and virtually no editorial comment outside the Negro press.”3 Reviewing the newspapers of the day, one writer of today observes that several papers ignored Plessy in favor ofdecisions involving an heiress’s million-dollar inheritance and a claimofplagiarismbyawell-knownplaywright.4 Progressivejournals such as the Harvard Law Review and the Yale LawJournalbusied them­ selves with articles such as “The Law of Icy Sidewalks in New York State,”5 and “Two Years’ Experience ofthe NewYork State Board of Law Examiners,”6 but paid no attention to Plessy. Aside from a sprinkling of law review ar­ ticles and law school addresses, Plessy’s cen­ tenary also has passed with little attention.7 This may be the case (at least in part) because the excellent scholarly work on Plessy done by Professor Charles Lofgren and by Professor Owen Fiss8 has discouraged others from en­ tering the field. Plessy, however, may be re- 16 JOURNAL1997VOL.il 26th. he will speak hi Algiers. Should the hall ate to accommodate the platform at the head of et will be utilized. g at an early hour M. id Joseph Rainey, residida and Morgan streets. from that corner and drunkeness and disturbThey pleaded not guElta were ordered against g at 4:45 o'clock the male rla Alien, colored, of No. eet, died without mediThe coroner was notl- :he State against Andrew ed with the murder of was called before Judge a preliminary hearing By agreement the ease 1 until Thursday week, was crowded when the id. ase was called to-day stenographer in court, )le noted this as being a as Mr. Borden should een on hand. IE CITY HALL. fr Murphy PromulFew AppointmentK— Committee Meeting;.. In a communication to the •e. notified that body that the lion of a school building on between Lafayette and Cyixamlncd . The bid of O'Neill* • $25,940 and that of John Mc25 ,493. As the specifications ird of the contract to the lotvtell Recommended that the btd >e accepted. papers it was made fo appear aphlcal error and transposition IcNally'B bid was for $25,943, itance was suggested. It may le bid of McNally while very that of the other bidders, does rice of filling, but Inasmuch as h the school Is intended to be inires grading, this item is not very important. lie order committee met last night and passed upon some minor matters. JIMCROWLAW. UPHELD BY THE UNITED STATES SUPREME COURT. Statute Within the Competency of the Loalniana Legislature and There are the usual nui seekers here. -They hav New Orleans and from ot the State. Some of them fu.ly in the interest of tl lion in the last light, I others probably who an office who did not beconi the administration until certain that Governor Fc i continued in the chair. Kail ron 1 frie is canvassing for ...msel usually runs in hard lucl gets beaten, but he has a ty of winning the fights t ges for others: and he h daily successful whew handled any of Mr. Price Mr...