Legal Commentary

More on Souter?s Bad History

By David Bernstein

Jonathan has already pointed to the McGinnnis and Rappaport op-ed taking on Justice Souter?s Harvard commencement address. McGinnis and Rappaport are making a point about originalism. I?m not as convinced that originalism provided an easy answer in Plessy?but then again, I?m not a committed originalist, so that?s easy for me to say. 

Anyway, I do agree that Souter?s history of the case is off:

As I?ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress.

The problem is, the holding in Plessy did not depend on ?the formal equality of an identical railroad car.? The underlying Louisiana statute did provide for separate but equal train cars, but that fact played no role, or at least no overt role, in the Court?s decision. The separate but equal doctrine was not endorsed by the Supreme Court until two decades later, and even then only 5?4, and in dicta.

In Plessy, by contrast, the Court held that any reasonable segregation law was constitutionally permissible, for two reasons. First, integration is a mere ?social right?, unprotected by the Fourteenth Amendment, which applies to only ?civil rights?. Second, even if one could identify a relevant civil right?as Justice Harlan?s dissent tried to do by focusing on the rights of locomotion and association?because African Americans and whites are both biologically distinct and instinctively hostile to each other, segregation laws are presumptively reasonable exercises of the police power.

It would have been highly inexpedient for the Court to rule the other way in Plessy, given the social and political trends of the time. But even outside the narrow circle of civil rights activists, there were legal scholars who argued that state-mandated segregation should be deemed unconstitutional. Here?s one source I?ve come across: Theodore W. Dwight, The Law of Persons and Personal Property 75 (Edward F. Dwight ed. 1894). 

Full post as published by The Volokh Conspiracy on June 15, 2010 (boomark / email).