When searching for new housing, potential homeowners and renters start with areas they know well or that their social networks recommend.
Whether on the basis of familiarity or selection bias, they overwhelmingly choose to live in communities that reflect their homogeneous network Krysan and Crowder Although the causes of continued segregation vary, at least one is that today, in addition to Whites, many minority groups are choosing, whether consciously or unconsciously, to segregate themselves. However, the choice of self-segregation is not permitted or possible for all. The deep history of redlining and public policy has disproportionately determined housing outcomes for African Americans.
This issue of RSF expands on types of segregation, reasons segregation persists, and segregation that continues to harm Blacks and other non-Whites, even in the presence of tangible equality of resources or the absence of segregation by law.
In the spirit of Plessy , this issue recognizes and takes seriously the symbolic and intangible inequality that segregation perpetuates as much as its material effects, as well as the role that intangible forces, such as social networks, play in sustaining and exacerbating material inequality.
Modern readers may puzzle at how a state ordinance interfering so baldly into the affairs of private companies could be upheld, especially when the Civil Rights Act of was held unconstitutional for requiring the opposite of so-called public facilities. It also extends or extended to the instrumentalities of the state, including public schools, public transportation, swimming pools, parks, and drinking fountains. Not until the attack on Jim Crow was well under way did the public-private distinction acquire so much significance, both as a sword to attack laws designed to extend and protect civil rights, and as a shield to defend Jim Crow traditions from federal encroachment.
It is little wonder then that much of the opposition to the Fair Housing Act of was grounded in concerns that it went beyond state action and regulated private economic activity, such as the right of a homeowner to refuse to sell their house to a person on the basis of their race. This is why the authors of the Fair Housing Act based their authority in the Commerce Clause, which explicitly permits the regulation of private activity, rather than just the Fourteenth Amendment.
This question of state action and the public-private distinction became even more pressing in the dilemma over racially restrictive covenants—covenants that bound homeowners in mass tract developments from selling their homes to anyone that might integrate a development or community.
In the landmark case of Shelley v. Kraemer , the Supreme Court again split hairs ever so finely, arguing that racially restrictive covenants were actually unenforceable under the Equal Protection Clause of the Fourteenth Amendment, not because the covenants were illegal but because to use the courts was a public act. Another example is Jones v.
Alfred H. Mayer Co. The turmoil in this area of law has led to remarkable scholarship, including a notable essay by the famous jurist Judge Henry Friendly , which sought to delineate the precise line between public and private action.
The question of the line between public and private activity has never been resolved, and in fact the sharp distinction has been rejected by some leading jurists. Laws arise from a culture and vice versa.
Neither can assign to the other all responsibility for persisting injustices. Indeed, Justice Kennedy is right from a historical vantage point, but the enduring persistence of racial residential segregation—the segregation of private space—even as our public spaces have never been more integrated—merely underscores the problem.
And yet our jurisprudence of late shields so-called de facto segregation from a mandatory constitutional remedy Green In this way, the public-private distinction continues to operate in a way that frustrates any current as well as future attempts to fully extirpate the legacy of Plessy.
In his dissent in Plessy , Justice Harlan disagreed with the Court to a truly remarkable breadth and extent. His understanding of the Reconstruction amendments was more progressive and expansive than perhaps any current member of the Supreme Court. To appreciate just how radical his understanding of those amendments was, we must dig into his dissent in Plessy and other cases. King , In other words, he found that the separation of race systematically violated the Constitution in multiple respects.
Unlike his colleagues, Harlan saw the Reconstruction amendments in their whole, and as part of the larger fabric of the Constitution.
First and foremost, Harlan believed that the Citizenship Clause of the Fourteenth Amendment, which was intended to bring freed slaves and their descendants fully into the political community, clothed Congress with the power to take affirmative steps to secure that right, including regulating pernicious laws such as those enacted by Louisiana. The Civil War amendments were unusual in giving Congress explicit rights of enforcement. Justice Harlan viewed the Reconstruction amendments as infusing the entire Constitution with new meaning and purpose.
Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers.
The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. Although his dissent in Plessy is more famous, his dissent in the Civil Rights Cases is more revealing. There, he presented the full scope of his views on the Reconstruction amendments. He explained that the power to enforce those provisions through affirmative legislation must be coterminous with the previous power to protect slavery.
And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time. Could Harlan have been signaling to Whites that they need not worry about changes in law because society would continue to recognize and support their supremacy? Whether his statements were merely an observation of reality circa , or a confession of personal belief in White supremacy, we may never know.
What is clear is that such observations may be regarded as racist today despite his progressive and inclusive jurisprudential vision. Too often, we assume that personal prejudice and exclusionary policy preferences are conjoined. The case of Justice Harlan reminds us that they may not be, a lesson that matters greatly as NIMBY suburbanites express support for the Black Lives Matter movement while opposing school integration or affordable housing Joffe-Walt et al.
For example, new and enduring patterns of race-based hatred and violence, pervasive implicit biases against Blacks, the continued maintenance of White supremacy, and patterns of judicial interference and overreach:.
The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge.
What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned.
There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature.
Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. One of the ironies of Plessy v. Ferguson is that Homer Plessy was phenotypically White and, in fact, sought better conditions than his Black fellow citizens. Part of what Homer Plessy argued for was a due process ground, that he was being denied the property interest in his Whiteness Harris Although the Court declined to consider whether Plessy met any statutory definition of Whiteness, and deferred to state law on this issue, the Court signaled that an incorrect classification could provide grounds for a suit and corresponding damages.
There is a vigorous debate among legal scholars about whether Plessy was primarily about race, citizenship, or Whiteness. Not only was Justice Harlan a wealthy slave owner, but he had a half-brother who was Black G.
King The humblest is the peer of the most powerful. The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds. The Harlan dissent also explicitly raised the issue of citizenship and the counting of persons who are neither White nor Black:.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.
In this way, Whiteness was not only a racial classification, but also an explicit property interest that conferred benefits denied to non-Whites.
Read more about it! The information in this guide focuses on primary source materials found in the digitized historic newspapers from the digital collection Chronicling America. The timeline below highlights important dates related to this topic and a section of this guide provides some suggested search strategies for further research in the collection.
Search this Guide Search. Plessy v. Supreme Court makes a critical court decision regarding racial segregation in rail cars. This guide provides access to material related to "Plessy v. Ferguson" in the Chronicling America digital collection of historic newspapers. About Chronicling America Chronicling America is a searchable digital collection of historic newspaper pages from sponsored jointly by the National Endowment for the Humanities and the Library of Congress.
Only Justice Harlan dissented from the Court's decision. Harlan's dissent was an uncannily accurate prediction of Plessy 's effect:.
It was not until the s and the s that the Supreme Court began to reverse Plessy. In the landmark case of Brown v. Board of Education, the Court held that separate black and white schools were unconstitutional, and later cases abolished the separate but equal doctrine in other areas affecting civil rights as well.
Ferguson Significance The Supreme Court's decision effectively sanctioned discriminatory state legislation. On 18 May , the Court issued its decision.
It upheld the Louisiana law: A statute which implies merely a legal distinction between the white and colored races--a distinction which is found in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races.
Harlan's dissent was an uncannily accurate prediction of Plessy 's effect: Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.
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