Plessy v. Ferguson--100 years later

Washington and Lee Law Review, 1996 by Wisdom, John Minor

Honorable John Minor Wisdom* I am deeply honored to speak to the graduating class of the College of Law at Washington and Lee University. The Lee Chapel, the Lee House, the line of beautiful colonnaded buildings, the lovely campus, the Pines, where my two brothers and I lived when we were students here, the Lewis Building, the Powell Building, and the many great changes that have taken place since I came here as a freshman in September 1921- have all stirred my heart."

This attractive group of graduates has helped increase the quality of life at the law school and improved the school's standing in the legal community. It has earned you an escape from the generalizations for success in life and in law which are so often tediously expressed at law graduation exercises. We are lawyers. We shall talk law. We shall talk about Plessy v. Ferguson' in which the United States Supreme Court gave its blessing to the "separate but equal" doctrine 100 years ago, May 18, 1896. That doctrine served as a thin disguise for Jim Crowism until Brown v. Board of Education' on May 17, 1954, demolished it, although Brown does not specifically overrule Plessy.3 Indeed, "separate but equal" seems to comply with the equal protection clause of the Fourteenth Amendment; separate but unequal seems to equate with discrimination. We shall talk about Justice John Marshall Harlan's dissent in Plessy. We shall talk about Albion Winegar Tourgee, the brilliant but erratic lawyer, crusading carpetbagger, and reconstruction novelist who brain-trusted the losing anti-Jim Crowism committee of black plaintiffs.4 It was Tourgee who supplied the dissenting justice in Plessy, John Marshall Harlan, with the most powerful maxim in American law: "Our Constitution is color-blind. "5

Plessy v. Ferguson has always fascinated me. I gave a talk on it in one of the Dreyfous Lecture Series at Tulane in 1972. I called it Plessy Rides Again. I never published it because I was not satisfied with my footnotes. That was before Lofgren's fine work on Plessy6 and Owen Fiss's brilliant and balanced analysis of the case in the recently published Volume VIII of the Holmes Devise History of the Supreme Court.7 Two years after my talk, my wife gave a lecture on Albion W. Tourgie to her literary club, the Quarante Club, a women's club well older than a hundred years. She called her talk The Crusading Carpetbagger! Bonnie tracked down the source of Justice Harlan's powerful maxim by reading Tourgee's novels. Justice John Harlan's full statement reads: "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. "9 This quote is a paraphrase of Tourgee's metaphor in his briefs in Plessy: "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind. " Bonnie commented in her paper: "I am probably unique in that I have carefully read seven of Tourgee's novels all the way through, and I discovered that Tourgee, like Mozart, was simply repeating himself.10 These famous words first issued from the mouth of Hesden Le Moyne, the hero of Tourgtees Bricks Without Straw." Professor Fiss generously repeated this comment in a footnote.ll

Certainly at some point I should refer to the fact that Edmund Wilson, probably the leading American writing critic of the midtwentieth century, wrote that Tourgee's A Fool's Errand"2 "was received as a sensation in its day and it ought to be an historical classic in ours."13 Again, "Tourgee was a special case. He was a Northerner who resembled the Southerners: in his insolence, his independence, his readiness to accept a challenge, his recklessness and ineptitude in practical matters, his romantic and chivalrous view of the world in which he was living."'4 Albion Winegar Tourgee was of French Huguenot stock on his father's side and of sturdy Swiss stock on his mother's side. His parents moved from the Hudson Valley to the little town of Lee, Massachusetts, and then to Williamstown, Ohio where Albion was born in 1838. When he was fourteen, his mother had died and his father had married again. He took himself off to live with a Winegar in Lee, Massachusetts. At about this time he lost an eye as a result of a playmate's exploding a percussion cap. He later returned to his father's home and eventually, at twenty-one, attended the University of Rochester.

When the War began, Tourgee promptly joined the 27th New York Volunteers. He carried off to war with him the Greek Testament and a volume of Cicero's, and later, when taken prisoner, he studied Spanish and Cervantes' Don Quixote. His regiment moved into Virginia where, he wrote, there was plundering to a shameful degree. His objections marked the beginning of a growing compassion for the South and a lasting objection to Union plundering.

On July 4, 1861, in the first battle of Bull Run, he was severely injured by a retreating battery heading for the rear at such speed that Tourgee could not get out of the way. He was out of action for a year and never fully recovered from the injury to his back. He returned to the fight, was wounded and hospitalized again. He returned again, fought in many engagements, was captured and imprisoned for four months. Freed in May 1863 in an exchange of prisoners, he went to Ohio and married his youthful sweetheart, Emma Lodoiska Kibourne. He went back to war a third time and sustained injuries that took him out of the war. When he was ordered to report for possible transfer to the Invalid Corps, he resigned. Shortly before the end of the war, however, he was negotiating for a commission in a Negro regiment. He had received a law degree at Rochester University, and after the war, he and Emma moved to North Carolina in 1865. He participated in efforts to bring that state back into the Union. He became active in the political life of North Carolina. He was a delegate to the new constitutional convention and was influential in shaping a new constitution. He was successful in getting the convention to authorize a codification of all of the laws of the state. He failed to be elected to Congress but was elected a superior judge in Greensboro, with jurisdiction over eight counties. During his years on the bench he surprised his enemies by his abilities, but he never relaxed in his energetic opposition to the Klan. Governor Jonathan Worth of North Carolina described him as "the meanest Yankee who has ever settled among us. "15 After six years, he did not run for re-election. He had been singularly unsuccessful in business, except as a novelist. In 1879, he headed north and dedicated his life to civil rights. He became a lecturer, newspaper man, and a highly successful novelist. He died in France in 1905, after having received a consular appointment to Bordeaux from President William McKinley the year after Plessy came down.