Separate

Separate by Steve Luxenberg

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This is a wonderful book to bookend with Dred Scott: The Inside Story by David Hardy. both books involve legal decisions affecting race relations in America. Both books leave the reader in amazement about how such learned men of the Supreme Court could be so stupid and dense.

Author Steve Luxenberg approaches the Plessy v. Fergusson legal decision through the biographies of various individuals, particularly Supreme Court Justices John Marshall Harlan and Henry Brown and Albion Tourge, the lawyer and civil rights advocate who argued before the Supreme Court on behalf of Homer Plessy. Luxenberg starts with the early lives of these individuals in the 1850s and follows their lives through the Civil War and into the Guilded Age.

This approach is absolutely fascinating and educational. The reader gets a spectrum of views on American culture during its time of transformation. John Marshall Harlan was the child of an influential, slave-holding Kentucky family who grew up to fight as an officer for the Union and eventually became the only Supreme Court justice to hold that the “Constitution knows no race.” Albion Tourgee was a Yankee who joined the Union army as a private soldier in order to free the slaves, moved to the South as a carpet bagger, became an attorney and a successful author and eventually master-minded the losing case for Homer Plessy. Henry Brown was another Yankee lawyer who moved to Michigan and eventually made his way to the Supreme Court to become the author of the infamous Plessy v. Fergusson decision which absurdly rejected the argument that making former slaves segregate from their former masters was inconceivable as a badge or indicia of slavery.

Luxenberg also brings a number of other characters. There is the entire les gens de couleur libres - the free men of color - the entire community of blacks and mulattos in New Orleans, who had never been slave, had fought with Andy Jackson in defense of America and had been cruelly denied their promised equal rights. This community felt deeply the sting of Jim Crow legislation and conspired with the railroads to bring a test case. For the test case, they provided Homer Plessy, who could pass as white, to be arrested for refusing to leave the white coach. It may come as a surprise for some to find that the railroads opposed the Jim Crow laws because of the expense of running the extra cars for a few customers.

Frederick Douglas is also an important part of this book. I was impressed by this person, who I had never really knew, that I picked up the new Frederick Douglas biography.

Luxenberg writes very well. He seems very sympathetic to his subjects, even Justice Brown, who, at times comes across as shallow social climber. At times, Luxenberg can tug on the heart strings as his subjects leave their lives, which leaves none unscarred by tragedy.

I was surprised to find that Plessy was not considered an important case until the legacy of Jim Crow was dismantled in the 1950s. Perhaps the most important legacy of Plessy v. Fergusson was simply the dissent of John Marshall Harlan, which put a marker down on the promise that America should not be a racial state.

Summary: A contextual and narrative history of the Plessey V Ferguson Supreme Court Ruling.

Part of what I appreciate about the framing of Separate is that Luxenberg takes great pains to point out segregation's national history, not just its Southern history. It is undoubtedly true that Plessy was arrested in Louisiana, and the movement in the 1880s and 90s for southern segregation was a response to the political realities and white supremacy of the post-reconstruction era. But segregated rail cars were first established in the 1840s in Massachusetts. Frederick Douglas, Sojourner Truth, Harriet Tubman, Robert Small, and many other abolitions were removed (often forcefully and with significant harm) either from the train or to segregated cars. There is a good discussion of this history in the biographies linked above, but also a good part of Until Justice Be Done, about the movement for civil rights before the Civil War, is about the role of civil rights in transportation. Before the mid-20th century, virtually everyone that traveled used some paid transportation. Individual vehicles or even private horses or carriages were incapable of long-distance travel either because of cost or effort.

Like Heart of Atlanta: Five Black Pastors and the Supreme Court Victory for Integration by Ronnie Greene, also a book on a civil rights Supreme Court case written by a journalist, most of the book is about the context and facts of the case, not the legal decision. In fact, the discussion of the actual case and ruling doesn't happen until the final section, about 90 percent of the way through the book. This feature is both the best and worst part of the book. The extensive context is framed primarily around the biographies of Justice John Harlan (who wrote the dissent), Albion Tourgee, lead counsel for Plessy, and Henry Billings Brown, the author of the majority opinion. There were also biographical portions for Louis Martinet (who conceived of the suit as a test case) and Homer Plessy (the man who was arrested as part of the test case). And, of course, the history of segregated transportation and the New Orleans Creole community, which drove the case.

At the end of the book, I appreciate why Steve Luxenberg gave us all of the context, but the moving back and forth between the three main characters was sometimes confusing. (This is probably because I mostly listened to this on audiobook). And I very much appreciate the reality that Luxenberg points out that what killed reconstruction, the Civil Rights Act of 1875, and caused the result of Plessy was the actions of moderate Republicans as much as pro-segregationist southern Democrats. John Marshall Harlan's dissent in the Civil Rights Act of 1875 case was a preview of Plessy and is discussed in light of that. But in both cases, the only dissenter was Harlan, who was also the only Southerner on the court at the time.

Prior to reading Separate, I was not aware of most of the characters. I knew of Plessy by name and of the legacy of John Marshall Harlan, but I could not have named Henry Johnson as the author of the majority opinion, nor had I even heard of Albion Tourgee or Louis Martinet. The view that the federal government does not have the right to uphold the rights of Black citizens against state law with the power of the 13th, 14th or 15th Amendments I was familiar with because of Foner's exploration of the Reconstruction Constitutional Amendments in The Second Founding, but I think many alive today would not recognize the change in legal opinion since that time. That being said, the discussion is increasingly on the table again.

Anti-DEI laws, like what has recently been passed in Florida and what was passed last year in Georgia in a weaker form, places the rights of black and white students in conflict. It is not usually framed this way, but in Georgia (where I live and I am more familiar), state teacher certification rules have recently changed, removing the obligation of teachers to learn about diversity issues in education. Nationally approximately 80% of teachers are white, but only 45% of students are white. Removing the requirements of teachers to learn about teaching diverse student bodies would seem to violate the equal protection of students potentially. But the framing of the anti-DEI rules is that are protecting the rights of white students.

These issues will not be easy to solve going forward. But understanding the history of how we have gotten here, is important to understanding how we will move forward.