Plessy and Passing: Racial Ambiguity as Legal Strategy

Modern commentary on Plessy is nearly uniform in its condemnation of the case. Kull notes that Plessy is “routinely vilified” (1992:13) and directs the reader to Lofgren's “pastiche” of scorn—an assemblage of judgments that condemn Plessy for “reduc[ing] the Fourteenth Amendment to little more than a pious goodwill resolution,” thus delivering “the ultimate blow to the Civil War Amendments and the equality of Negroes”; for being “inconsistent” and “irrational,” and even “slipping into absurdity” (Reference LofgrenLofgren 1987:3–4). Of Plessy's central argument, legal historian Kluger writes, “It would be onerous work to find a more unsupported and insupportable sentence in the annals of American jurisprudence” (1975:74). And while some legal scholars have preferred understatement—Reference McCloskeyMcCloskey is contented to describe the opinion as “dubious” (1994:141) and Reference ElyEly calls it “a mistake” (1980:163)—others identify Plessy as “the final and most devastating judicial step in the legitimization of racism under state law” and “one of the most catastrophic racial decisions ever rendered” (Reference HigginbothamHigginbotham 1996:117).

Justice Brown's majority opinion in Plessy has been criticized for its faulty logic and its misleading citation of precedent, and even more for its reliance upon racial “science” and its constitutional endorsement of white supremacy. Nonetheless, re-examining this landmark case from the perspective of racial indeterminacy is warranted because it suggests new and valuable insights regarding the law's constitutive powers of racialization and production of racial subjectivity.

Most scholars of race and law agree that there is no scientific justification for regarding human populations as belonging to distinct racial groups. The non-existence of biological race found early support from physical anthropologists (Reference MontaguMontagu 1965) and, more recently, in the field of human genetics (Reference GravesGraves 2001). In a strictly biological sense, it may be true that “there are no races” (Reference AppiahAppiah 1992:45). Yet we cannot ignore that race remains a central fact of American social, economic, and political organization. Attempts to reconcile the social significance of race with its biological insignificance have generated a rapidly expanding literature on the social construction of race too vast to account for here. Sometimes placed under scare quotes, “race” has been variously characterized: it is a product of linguistic performance or “trope” (Reference GatesGates 1986), a social-political process of “racial formation” (Reference Omi and WinantOmi & Winant 1994), a purely ideological creation designed to mediate or channel class conflict (Reference Fields, Kousser and McPhersonFields 1982), a contested ideological terrain of Gramscian hegemony (S. Reference Hall, Morley and ChenHall 1996), a transnational cultural formation (Reference GilroyGilroy 1993) that may be irredeemable for egalitarian political commitments (Reference GilroyGilroy 2000), and a central organizing principle of the modern state (Reference GoldbergGoldberg 2002).

Understood as social construction, racial identities are results of complex social-historical processes rather than fixed sources of meaning. And if race “functions as a verb before signifying as a noun” (Reference Powellpowell 1997), legal discourse plays an important role in the articulation of racial meaning and definition of racial categories. The role of law in producing racial “common sense” (Reference Haney LópezHaney López 2003: Ch. 5) is a subject of central concern to writers within the tradition of Critical Race Theory (CRT).Footnote ⁶ In his seminal study of the racial prerequisite cases in immigration law, Haney López demonstrates both how the law's ability to constrain reproductive choices “creates differences in physical appearance” (1996:14) and how court decisions literally define the legal boundaries of whiteness.Footnote ⁷ Because the law also helps create the racial subjects on which it acts, race cannot be assumed as a prelegal phenomenon. In its strongest formulation, Reference Haney LópezHaney López argues that “law constructs race” (1996:19).

In focusing on issues of racial indeterminacy in Plessy, my research draws from and extends a powerful literature on the legal construction of race. The legitimacy of Plessy's removal from the “white car” turned in large part on a prior resolution of his racial status, thus linking the Court's consideration of the constitutionality of segregation to the state's power to impose racial categories. However, where others have stressed the law's successful imposition of racial order, my analysis of Plessy also calls attention to the instability of racial categories and to the often partial nature of legal racial constructions. From the unruly complexity of human physical variation, legal discourse forges what purport to be clear and stable racial lines. This aspect of legal power is most evident when it confronts human bodies not easily categorized within established classificatory schemes. Ambiguously raced bodies threaten to disrupt ordinary assumptions of naturally distinct races and thus are met by the law as a kind of problem to be contained. Where Plessy's legal defense consciously deployed racial ambiguity to destabilize racial categories, Justice Brown's majority opinion may be understood as just such an exercise in containment, responding to the disruptions that mixed race and passing create.

Plessy, Passing, and Property: Appropriation or Critique?

Building on the insights of Reference BellBell (1988), Reference HarrisHarris (1993) has famously theorized the material advantages of whiteness as a form of property right. The argument for “whiteness as property” emerges directly from the Plessy case. Observing that Plessy's legal argument “was predicated on more than the Equal Protection Clause of the Fourteenth Amendment” (Reference HarrisHarris 1993:1747), Harris describes his additional claim to have been deprived of property without due process of law: “Because phenotypically Plessy appeared to be white, barring him from the railway car reserved for whites severely impaired or deprived him of the reputation of being regarded as white … [and] the public and private benefits of white status” (Reference HarrisHarris 1993:1747). Plessy's claim to injury was thus predicated upon his ability to pass for white.

The argument proved persuasive to the Court in its basic premise, and Justice Brown's opinion explicitly endorsed the view that one could hold a property right in one's reputation as a white person. However, Brown denied that Plessy had been injured because he was not in fact white—and therefore could neither possess nor be deprived of such property:

Harris traces this argument to a brief submitted by Tourgée, in which Tourgée asked, “[h]ow much it would be worth to a young man entering upon a practice of law, to be regarded as a white man rather than a colored one?”—and answered that “the reputation of being white… is the most valuable sort of property, being the master-key that unlocks the golden door of opportunity” (Reference OlsenOlsen 1967:83; emphasis in original).Footnote ¹² Harris finds Tourgée's argument significant, like Justice Brown's appropriation of it, because it clearly demonstrates the material advantages that attach to being regarded as a white person in America. Moreover, these benefits extend beyond the age of segregation, thus demonstrating “the Court's chronic refusal to dismantle the structure of white supremacy” (Reference HarrisHarris 1993:1750), which Harris views as an unstated premise of the Court's current equal protection jurisprudence. Understanding whiteness as property allows us to see how the Plessy doctrine of “separate but equal” has been rejected while the Plessy principle of property rights in whiteness has not.

Viewing whiteness as property also grounds a critique of passing, since it is precisely the privileges of whiteness that lead people to pass. The material benefit of passing is the property value in being regarded as white:

On this view, passing merely extends white privilege to a broader class of recipients and therefore cannot challenge the legitimacy of white supremacy as an ordering principle of American society. Thus Harris criticizes Tourgée's request for a light-skinned plaintiff, which she describes as coming “over vigorous opposition from organized black leadership” who feared that “such a strategy, even if successful would mitigate conditions only for those blacks who appeared to be white” (Reference HarrisHarris 1993:1747, note 179).

In her critique of Plessy, Harris is precisely right to identify the Court's protection of a property right in whiteness. However, her characterization of passing fails to appreciate Tourgée's subversive use of racial indeterminacy to critique the institution of segregation. Tourgée's argument that whiteness is property was less concerned with the fact of white privilege (which he viewed as obvious) than with the legal mechanisms through which an individual's race was established. If the process of racial classification was arbitrary, and assuming whiteness to be property, then segregation violated the Fourteenth Amendment's prohibition against denying property without due process of law. The Louisiana law was unconstitutional, Tourgée argued, because it required train conductors or other railway employees to make unqualified on-the-spot determinations of a passenger's race without benefit of formal standards, criteria, or procedures to govern the process (Tourgée Brief 1895:83–5). The very concept of whiteness, he argued, could not be understood independent of the institutional mechanisms through which races were defined. Moreover, it may not be possible to determine an individual's race in any non-arbitrary fashion:

Tourgée's argument deploys the figure of passing to call out the inherent instability of those racial categories upon which segregation depended. By shifting the focus from the legal treatment of African Americans as a class to the legal process of racial classification, Tourgée hoped to render the racial categories demanded by segregation both practically and conceptually incoherent.

Awareness of the racially destabilizing potential in passing is evident in a letter to Tourgée from Martinet, discussing the choice of a light-skinned plaintiff for the case. Martinet wrote, “[p]eople of tolerably fair complexion, even if unmistakably colored, enjoy here a large degree of immunity from the accursed prejudice” and therefore might not be arrested (Martinet to Tourgée, 5 October 1891, The Tourgée Papers; reprinted in Reference OlsenOlsen 1967:56). Aside from the obvious complication (that the arrest was necessary to pursue a test case), Martinet's letter to Tourgée is usually quoted to attest to the higher social status of light-skinned over darker-skinned blacks (Reference HarrisHarris 1993:1747, note 179; Reference LofgrenLofgren 1987:31; Reference ElliottElliott 2001:307). But while Martinet was alerting Tourgée to the practical problem of finding a suitable test case, he also connected that concern to the notable difficulty in distinguishing whites from blacks in New Orleans. Examined in its entirety, the passage takes on a rather different implication:

In this passage, Martinet identifies two senses in which race and mixed race find themselves conceptually at odds. The first lines of the passage describe a community in which the color line (or at least the precise boundaries of the color line) was thoroughly confounded. In the lived experience of race in nineteenth-century New Orleans, one could not necessarily know from appearances an individual's racial identity. While this did not in itself invalidate racial classifications, it did force Martinet to distinguish these passers from another group who remained “unmistakably colored” despite their “tolerably fair complexions.” Unlike members of the second group, whose racial identity was “unmistakable,” those in the first set remained “colored”despite their white appearance. Their coloredness derived, then, from some source other than appearance—some source other than color.

There is at least a possibility of slippage here, between the problem of correctly categorizing a particular ambiguously raced individual and the broader difficulty of maintaining under such conditions the coherence of clearly distinct racial categories such as state-mandated segregation both required and sought to impose. This is precisely the strategy that Tourgée pursued in his arguments before the Supreme Court. It was not an attempt to expand the roster of white privilege but rather to undermine the stability of racial classifications and so to challenge the legitimacy of racial segregation itself.

Judicial Responses to Indeterminately Raced Bodies

Unlike the infamous Dred Scott decision, which simply denied that blacks could be citizens—having been no part of “the people of the United States” at the time of the founding and regarded as possessing “no rights that the white man was bound to respect” (Dred Scott v. Sandford 1857, 60 U.S. 393)—Justice Brown in Plessy accepted the premise that the “object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law” (163 U.S. 537, 544). The task of his argument, therefore, was to show how “absolute equality” could be reconciled with a policy of state-mandated racial segregation. To this end, Brown adopted two strategies to limit the scope of the Civil War amendments and justify the constitutionality of Jim Crow. First, he distinguished political equality, as guaranteed by the Fourteenth Amendment, from a social equality, which he characterized both as beyond the scope of constitutional protection and incompatible with biologically based natural differences between the races. Second, he advanced a formalistic theory of symmetrical equality holding that segregation applied equally to all races because whites were separated from blacks just as blacks were separated from whites.Footnote ¹⁴

Significantly, both of Justice Brown's arguments are implicitly linked to questions of mixed race. The theory of symmetrical equality developed as a legal justification for anti-miscegenation laws, adopted by the Court in Pace v. Alabama (1883). As visible evidence of previous miscegenation, passing is closely related to the theme of mixed race. To the extent that race-thinking presupposes discrete or pure racial kinds, race requires the denial of mixed race (Reference MoranMoran 2001:42–60; Reference ZackZack 1995:301; Reference RootRoot 1992:233).Footnote ¹⁵ Where scientific theories of race attempted to define away the racially destabilizing implications of mixed-race people, anti-miscegenation laws sought to legislate against such disruptions. In this regard, Justice Brown's majority opinion can be seen as an exercise in containment, reacting against the destabilizing potential of passing in Tourgée's defense.

Justice Brown's first argument, contrasting political equality to social equality, sought to distinguish Plessy from Strauder v. West Virginia (1880), in which the Court held that the exclusion of blacks from juries violated the Fourteenth Amendment's guarantee of equal access to the judicial process. While protecting certain political rights surrounding access to the courts, Strauder also made clear that social rights received no such protection under the Fourteenth Amendment.Footnote ¹⁶ These categories of rights were common to nineteenth-century jurisprudence. Political rights referred specifically to the realm of voting and office-holding, whereas civil rights guaranteed access to the courts, protection of property rights, and enforcement of contracts, and prohibited the imposition of greater punishments for criminal offenses simply on the basis of race (Reference TushnetTushnet 1987). Social rights, in contrast, referred to interracial association and social contact, typified by interracial marriage and sexual intimacy.

It is difficult to overstate the significance of white anxiety about interracial sexuality to post-Emancipation southern culture (Reference KinneyKinney 1985; Reference WelkeWelke 1995:266). White demands for segregated travel were largely driven by sexualized fears that “white women and black men might otherwise find themselves seated next to one another” (Reference LitwackLitwack 1980:265–7). Moreover, white Americans in the late nineteenth century routinely associated social equality with compulsory interracial intimacy, to the point even of thinking that “the state's power to bar interracial marriage was somehow equal to its power to force people into such unions” (Reference PrzybyszewskiPrzybyszewski 1999:83, 113). The white “obsession with miscegenation” thus made it nearly impossible to “clarify the difference between ‘social equality’ and ‘public equality’” (Reference LitwackLitwack 1980:265–7).

In casting Plessy's argument against segregation as a demand for social equality, Justice Brown exploited white fears of miscegenation while figuring the challenge to mandatory segregation laws as a radical restructuring of deeply personal preferences that far exceeded the scope of the Fourteenth Amendment and the power of the Court:

Justice Brown's argument granted to the social institution of law all the force of nature. The legal enforcement of segregation was said to follow naturally from biological differences (“color” and “race”) that exist simply “in the nature of things.” The language of natural difference, sutured to social arrangements based upon those differences, served to insulate segregation from legal remedy by locating the source of inequality outside the sphere of legitimate government action.

Suggesting the inevitability of racial separation, Justice Brown described race differences as “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” (163 U.S. 537, 543). The move was a rhetorical victory regardless of whether one believes in natural racial differences. By figuring racial segregation as a consequence of biology, the argument portrayed anti-segregationists as demanding the impossible from the limited tools of limited government: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences” (163 U.S. 537, 551). But Plessy was not arguing that the Constitution obliged the state to force private businesses to integrate. He claimed only that the Fourteenth Amendment prevented states from requiring racial segregation. Indeed, Louisiana's legislative effort to prevent interracial contact was itself an example of “social engineering” in that it attempted to impose social patterns that might fade absent the coercion of law. Justice Brown's opinion depicted segregation laws as preserving rather than imposing racial separation, just as nineteenth-century scientific racism theorized distinct and pure racial types even in the face of an increasingly large mulatto population.

Justice Brown's second argument—based on symmetrical equality—attempted to reconcile segregation with the Fourteenth Amendment's requirement of “absolute equality before the law.” Racial segregation placed no additional burdens on Negroes, Justice Brown argued, because the law applied equally to both races and provided identical punishments for whites and nonwhites who violated it. Justice Brown's argument thus severed the connection between the law's formal neutrality and segregation's unmistakable purpose: “Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other” (163 U.S. 537, 544). On this view, racial distinctions need not be abolished but would be treated just like any other legal category, and their constitutional permissibility would therefore be determined by the “reasonableness” of the exercise of state power.Footnote ¹⁷ The reasonability of racial segregation, moreover, Justice Brown inferred from two judicially sanctioned uses of racial distinctions: segregated schools and prohibitions against interracial marriage and sexual contact (163 U.S. 537, 544–5).

The basic structure of the argument can be traced to the unlikely source of Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court, in the school segregation case of Roberts v. City of Boston (1850). Shaw's opinion upheld the constitutionality of Boston's segregated schools on the grounds that the principle of equality before the law did not imply that all should receive “the same treatment,” but rather that all are entitled to equal regard and “paternal consideration” (cited in Reference KullKull 1992:49). Just as “equal protection” did not compel the identical treatment of parents and children or women and men, neither did it condemn the separation of students based on differences of age or educational need—or race. Racial distinctions would be prohibited when placed in the service of prejudice and domination, but allowed when, as deemed in this case, “the good of both classes of schools will be promoted, by maintaining the separate primary schools for colored and for white children” (cited in Reference KullKull 1992:51).

Justice Brown's reliance on Roberts, while establishing the structure of his argument, also posed two obvious problems. First, Roberts had been decided before the ratification of the Fourteenth Amendment and so did not address any protections that the Equal Protection Clause might afford. Second, it would be difficult to show how the Louisiana Separate Car Act worked to “the good of both classes” of citizens. To address both problems, Justice Brown introduced the issue of miscegenation.

The Court had embraced the idea of symmetrical equality just over a decade before Plessy, in Pace v. Alabama (1883). In Pace, Justice Stephen J. Field insisted that laws prohibiting interracial adultery or fornication were racially neutral because “the punishment of each offending person, whether white or black, is the same” (106 U.S. 583, 585). Although Justice Brown did not cite Pace, the reference may be implied both from the structure of the argument and from his assertion that anti-miscegenation laws “have been universally recognized as within the police power of the State” (163 U.S. 537, 545).Footnote ¹⁸ Moreover, the Court in Pace had not felt constrained by Shaw's principle that racial distinctions must work for the benefit of both races, arguing instead that prohibitions against interracial sexual contact served the community's interest and general welfare. In similar fashion, Justice Brown's opinion in Plessy asserted that segregated railway travel carried with it no implication of inferiority for either race. Ignoring the plain meaning of segregation, Justice Brown could thus blame the victims of Jim Crow for their recognition of the injury they sustained:

The literal truth of Justice Brown's claim, that nothing in the statute on its face treated blacks differently than whites, is only intelligible to the extent that it abstracts the law outside of its social context and obvious legislative purpose. It requires one to believe that segregation statutes were intended to keep whites out of “colored cars” rather than to announce with the authority of the state that blacks are degraded, inferior, and unfit for association with whites.

This interpretation was, of course, directly contradicted by the actual practices of segregation. The inferior conditions of the Jim Crow cars (Reference ElliottElliott 2001:306), the historical roots of segregation in the regulation of antebellum free blacks (Reference BerlinBerlin 1974; Reference LitwackLitwack 1971), and the lack of enforcement of the law against whites—who would move up to the “smoking car” to indulge in alcohol and tobacco (Reference LofgrenLofgren 1987:10–1), all testify to the true purpose and function of segregation as “an instrument in the maintenance of white supremacy” (Reference OlsenOlsen 1967:4). Justice Brown's suggestion that the degrading social meaning of racial segregation existed “solely because the colored race chooses to put that construction upon it” thus works a kind of double injury: it constitutionalizes the physical segregation of racial minorities while simultaneously disqualifying minority interpretations of their own lived experiences. Justice Brown's argument is disingenuous in its winking disavowal of segregation's degrading intent, but also in its presumption that words can mean whatever one chooses them to mean (or mean nothing at all). What disappears in Justice Brown's fantastical linguistic account is just what ought to be at the center of the analysis: the fact of white supremacy.

While Justice Brown refused to acknowledge the social meaning of segregation laws, his argument nonetheless depends upon the presumption of highly meaningful racial differences presumed to be grounded in nature. Throughout his opinion, Justice Brown repeatedly invested the visible distinctions of skin color with the normative authority of a “natural” social order. Racial differences, he claimed, must inevitably exist “so long as white men are distinguished from the other race by color” (136 U.S. 537, 543), just as social equality cannot “in the nature of things” be accomplished through intervention by the state (136 U.S. 537, 544). Differences of color and race were natural facts for Justice Brown, and he presented the social relationships organized around race as natural outgrowths of biology and therefore immune to judicial intervention. Nonetheless, and despite Justice Brown's stated assumption of fixed, discrete biological races, a careful reading of his opinion reveals the remarkable extent to which he was unable to fully contain the racially disruptive implications that mixed-race subjects posed for systems of racial classification designed to identify and preserve racial purity.

In marked contrast to the language of natural difference, Justice Brown's response to Plessy's racial ambiguity forced him explicitly to acknowledge the social-legal processes by which seemingly natural racial categories are constructed, clarified, justified, and maintained. In administering segregation laws, courts were necessarily called upon to assign races to those individuals whose actual bodies confounded the logical clarity of legal definition, as well as to issue criteria by which the boundaries of racial categories could be justified and refined.

Justice Brown's explicit recognition of the legal construction of race appears in the text of his opinion, responding to the issue of racial classification raised in the Tourgée Brief. Despite his earlier claim that race flows naturally from color, Justice Brown noted that the state's authority to segregate based on race would necessitate a legal determination of the boundaries of racial categories:

While the logic of the majority decision relies upon natural differences between the races, in Plessy, the Court nonetheless recognizes that those boundaries require state definition and regulation. Rather than finding distinct groups in the world, and then regulating their conduct, the Court now appears to describe a scheme of categorization that depends upon legal construction even while acting in the name of those “natural” differences. And because not all states defined racial identity according to the same criteria, the Court's reliance upon “natural differences” ran into the embarrassing fact that someone who is naturally white in Virginia could be naturally black in North Carolina, or any state with a more narrow legal construction of whiteness.

Justice Brown was not unaware of this contradiction. The sheer range of racial definitions was problematic for him in two senses. First, because the diversity of definitions makes the question of what one is dependent upon the question of where one is. The less consistency with which racial identities are judged, the less natural those judgments will seem. Second, because the diverse standards of racial determination call attention to the legal apparatus by which racial identities are assigned. The seeming naturalness of racial categories is bound to be unsettled by the extensive involvement of legal institutions in defining and enforcing racial classifications.

Justice Brown's solution to this problem was to pass it along to the states to deal with, citing state court rulings that employed various formulae of racial determination:

The passage is remarkable for a number of reasons. Because it is edited out of most legal casebooks that reproduce the opinion, it may be unfamiliar even to those who have carefully read the case.Footnote ¹⁹ Moreover, it demonstrates an attention to law's constitutive power to impose racial identity that sits uncomfortably with the rest of the opinion. The apparent ease with which Justice Brown dismissed the problem as a matter for state legislatures to decide may be of less significance than the fact that he felt compelled to address the problem at all.

The specific rationales that Justice Brown pointed to in lower-court rulings are also of interest. Each of the decisions was claimed to make blood-quantum the criterion of racial determination, whether it be “any visible admixture of black blood” or a “preponderance of blood” or a “proportion of three-fourths” standard. The “visible admixture” standard, however, while claiming the supposed objectivity of blood nevertheless remains a visual standard based on appearance (surface) rather than blood (depth). An assumed connection between surface and depth—which functions here as a rule of racial definition—is implicit in ordinary conceptions of race. Morphological differences that are taken to constitute distinct racial kinds take their authority from an assumed connection to racial essences thought to reside below the skin, either in blood or, more recently, in the genes. Those physical features that serve as racial markers do so because they are taken as external signs of an internal racial truth.

Justice Brown's response to ambiguously raced bodies may thus be understood as an attempt to shore up the solidity of internal racial essences by insulating them from the admittedly variable external criteria that a state could choose as its legal definition. The inherent messiness of racial categorization was in this way dismissed as belonging to the bureaucratic realm of proper administration or the legislative realm of adopting appropriate criteria of racial definition. In either case, states were left with the authority to define race by statute, while the contradiction between state recognition of natural difference and the state's construction of those differences was dismissed as being “not properly put in issue in this case.”

Justice Brown's attempt to shift the problem to the state level was meant to resolve the difficulty of racial ambiguity. But even a cursory reading of the cases that he cited as precedent reveals the inadequacy of this solution. In each of the five cited cases, the court either ruled to dismiss charges or remanded for a new trial because the state had failed to meet its burden of proving the race of the defendant. And in none of the cases did the court “resolve” the problem in the easy manner that Justice Brown implied. On the contrary, the cases cited in Plessy, while meant to show that the questions posed by racial ambiguity were “questions to be determined under the laws of each State,” in fact demonstrated just what Tourgée hoped to show: that Jim Crow laws not only constituted unequal treatment of racial minorities, but that they also presumed the state's authority to impose racial status without justification of the criteria by which such determinations can be made.

In the first case, State v. Chavers (1857), which Justice Brown cited as establishing a “preponderance of blood” standard, the Supreme Court of North Carolina set aside the conviction of William Chavers under a statute that prohibited “free Negroes” from carrying shotguns. Chavers, who was indicted as a “free person of color,” argued “there was no evidence of his being a Negro” (State v. Chavers 1857, 50 NC 25 at 27). The court examined statutory and common language usage of the words white and Negro in order to reach its conclusion that “free Negro” and “free person of color” were distinct legal categories, thus raising the possibility that Chavers, as a free person of color, was not subject to the prohibition against free Negroes carrying shotguns.

In response to Chavers's ambiguous racial status, the court sought various kinds of evidence that might finally determine to what race he truly belonged. The legal standard adopted by the court, as Justice Brown observed, was that of “visible admixture of black blood.” However, the evidence used at trial to make the actual determination hardly conformed to the standard that Justice Brown described. One source of evidence issued from an invitation by Chavers's counsel for “the jury to inspect him and judge for themselves” (State v. Chavers 1857, 50 NC 25). But rather than settling the issue, this visual evidence seems to have been taken as a proxy for lineage, thus requiring the introduction of evidence relating to the respective races of the defendant's parents. The determination of lineage, however, only led back to questions of morphology, and the racial appearance of the defendant's father was introduced via testimony of a witness who “proved that the defendant's father was a man of dark color and had kinky hair; that he was a shade darker than the defendant himself, and his hair was about as much kinked” (State v. Chavers 1857, 50 NC 25).

While these highly subjective judgments cycled through conflations of appearance and lineage (the former taken as proof of the latter, the latter determined only by recourse to the former), the court also allowed as proof of visible admixture evidence even more squarely linked to behavior than appearance. Chavers had apparently traveled to his trial aboard a steamboat that charged white passengers a fare of one dollar but carried Negroes for half price. At trial, a Mr. Green testified that Chavers had paid only the fifty-cent fare. This was taken as proof of his race by “his own declaration” (State v. Chavers 1857, 50 NC 25 at 26). Presumably it is as important that Chavers was accepted by the steamboat operator as not white as it is that he claimed to be so. But here we find a standard of racial identification that is almost entirely performative. Public display and reception of racial identity is given equal evidentiary weight as that of morphology or lineage. Chavers could well have been passing for colored in order to avoid paying the higher fare on the steamboat, but either formulation (white passing for black or black passing for white) is to large extent arbitrary, as Chavers was evidently neither black nor white, but rather indeterminate within a classificatory scheme whose purpose was to impose and maintain “pure” racial categories.

In Gray v. State (1831), which Justice Brown cited as establishing a preponderance of blood standard, the Supreme Court of Ohio set aside the conviction of Polly Gray, who had been found guilty of robbery largely on the basis of testimony by a Negro witness. Under Ohio law, Negroes were deemed incompetent to testify against whites. Gray claimed to be white, thus rendering the testimony invalid. In response to Gray's objection at trial, “the prisoner appeared, upon inspection, and of such opinion was the court, to be of a shade of color between the mulatto and white” (Gray v. State 1831, 4 Ohio 353). Upon review, the court reversed the trial court's judgment, finding that statutory and ordinary language usage recognized only three racial categories (white, Negro, and mulatto), none of which adequately described the defendant.

Far from resolving the problem of racial ambiguity, the Ohio court expressed reservations that such resolution could ever be supplied: “We are unable to set out any other plain and obvious line or mark between the different races. Color alone is sufficient. We believe a man, of a race nearer white than a mulatto … should partake in the privileges of whites” (Gray v. State 1831, 4 Ohio 353, 355). The rationale for the decision makes clear the court's discomfort at the position in which it was placed, issuing “partly from the difficulty of defining and of ascertaining the degree of duskiness which renders a person liable to such disabilities” (Gray v. State 1831, 355). Despite the admittedly arbitrary nature of the rule, and to Polly Gray's great relief, the witness's “degree of duskiness” constituted something just short of white, and so the testimony was disallowed.

Justice Brown also cited two cases involving voting rights, in which ambiguously raced men sought to vote in states that limited the franchise to white males. In both cases the men sought relief from disenfranchisement on the grounds that they were, in fact, legally white. In Monroe v. Collins (1867), the Supreme Court of Ohio struck down two supplements to the 1841 Act to Preserve the Purity of Elections. Under the terms of the supplements, election officials were required to challenge the votes of anyone with “a visible admixture of African blood” (17 Ohio St. 665), and were at the same time made not liable for damages for rejecting the votes of such persons. George Collins sought a ballot but was rejected by James Monroe, an election judge in Greene County, upon failing to provide “proof” of his racial qualification to vote. As specified by the terms of the supplemental act, proof of whiteness consisted in an elaborate procedure in which the potential voter was asked a series of questions, including questions of lineage: “4. Had your parents, or either of them, a visible and distinct admixture of African blood?” (17 Ohio St. 665, 679) and questions of association: “5. In the community in which you live are you classified and recognized as a white or colored person, and do you associate with white or colored persons?” (17 Ohio St. 665, 679). If the vote was not rejected after the initial questioning, the election official was instructed to demand the oaths of “two credible witnesses” testifying that they knew the person challenging, and that they knew the parents of the challenger not to “have a distinct and visible admixture of African blood” (17 Ohio St. 665, 679). The Act explicitly rejected evidence “founded merely upon appearance, unless the facts are fully stated as to the parentage of the person challenged” (17 Ohio St. 665, 680). The challenger was then required to take the following oath: “You do solemnly swear (or affirm) that, to the best of your knowledge and belief, you are a white male citizen of the United States, and know the fact to be so from a knowledge of both your parents and your pedigree” (17 Ohio St. 665, 681).

Collins refused to take the oath, and so was ruled ineligible to vote. His stated reason for refusing the oath was that his racial classification was indeterminate and so the terms of the questioning precluded an honest response. In an answer that perfectly illustrates Tourgée's strategy, Collins declared, “I know of no established and well defined classification of persons as to color and shades of color, and am, therefore, unable to say how I am classified. I associate with persons white and persons black, when agreeable to all parties” (17 Ohio St. 668). The question “do you associate with white or colored persons?” refused the possibility of interracial association, making a truthful answer unintelligible.

Justice Brown was not entirely wrong in citing Collins for its “preponderance of blood” standard. The Court did utilize such a standard in striking down as unconstitutional the Purity of Elections Act. But the facts of the case demonstrate the absurdities that the court encountered when setting out to define racial categories with any degree of precision. The sheer variety of sources of evidence (lineage, appearance, association, affirmation, belief) did little to establish racial differences as natural facts that seamlessly translate into rules of social organization. Nor could Justice Brown find much support in the court's conclusion that the Act imposed an undue burden upon “white citizens of less than half African blood” (17 Ohio St. 688).

The other voting rights case that Justice Brown cited, People v. Dean (1866), was similarly ambiguous in its adoption of a criterion by which to define whiteness. In this case, the Supreme Court of Michigan was asked to consider the conviction of William Dean on charges of “illegal voting” (People v. Dean 1866, 14 Mich. 406 at 413), and took the opportunity to “settle the position of persons of mixed blood under the [Michigan] constitution” (People v. Dean 1866, 413). As Justice Brown suggested in Plessy, the Michigan court did settle upon a standard of requiring at least three-fourths white ancestry: “persons are white within the meaning of our constitution, in whom white blood so far preponderates that they have one-fourth of African blood” (People v. Dean 1866, 14 Mich. 406, 424). But the rationale for the decision was less supportive of Justice Brown's goal. The court did not find a natural distinction to guide its decision but seemed instead to accept the responsibility of imposing a uniform, but admittedly arbitrary, standard of racial determination:

The court did not so much resolve ambiguity as it imposed an admittedly arbitrary rule of racial definition. The resulting racial categories were at least partly the products of those laws that innate racial differences were supposed to justify.

Moreover, the “one-quarter black blood” standard was offered as an alternative to considerations of color that admittedly failed to do the work that scientific racism required of them. Yet despite having severed the connection between race and color, the court's rationale for the “one-fourth” standard was based precisely upon the significance of appearance: “[w]hile quadroons are in most cases easily distinguished as not white, persons having less than one-fourth African blood are often enough white in appearance to render any further classifying difficult” (People v. Dean 1866, 14 Mich. 406, 424). The reasoning of People v. Dean is thus quite inconsistent with Justice Brown's interpretation of it. Racial ambiguity motivated the court's imposition of the “one-fourth” standard but did not resolve it.

The final case that Brown cited, Jones v. Commonwealth (1885), encounters similar difficulties. In this case, Isaac Jones was sentenced to two years and nine months in the state penitentiary for “felonious marriage with Martha Gray, a white woman” (Jones v. Commonwealth 1885, 80 Va. 538). As a legal defense, Gray alleged that she had some black blood while Jones claimed to have some white blood, thus legitimizing the marriage. The court applied a “one-quarter black blood” rule, as the Michigan court did in People v. Dean (1866), ordering a new trial at which the state would have to show evidence of “the quantum of negro blood in his veins” (Jones v. Commonwealth 1885, 80 Va. 538, 540). However, the difficulty of establishing the races of the defendants can be seen in the kinds of evidence that were accepted by the court. As evidence that Gray had some “negro blood in her veins,” the court observed “that her mother had given birth to negro children before her birth; that she herself was a bastard, and was accustomed to associate and attend church with negroes; and the colored pastor of the church testified that there were colored persons attending his church whiter than the said Martha” (Jones v. Commonwealth 1885, 80 Va. 538, 542). However clear the “one-fourth” standard may seem on paper, the lived experience of race is anything but clear, and remains highly resistant to the kind of tidy classification that Justice Brown assumed in his citation of the case.

In each of the cases that Justice Brown cited as evidence that the problem of racial ambiguity can be easily resolved by state law, a closer reading suggests just the opposite to be true. In none of the cases was a petitioner's contestation of racial classification simply dismissed. In three of the cases, convictions were overturned or remanded for a new trial (Chavers, Gray, and Jones), and in one case a state law was ruled unconstitutional (Monroe v. Collins). In none of the cases was a blood-quantum rule sufficient to settle an individual's racial status, which ultimately comes to depend on the contingent factors of social performance, presentation, and reception.Footnote ²⁰ Justice Brown's attempt to rein in the racially destabilizing implications of passing in Tourgée's argument cannot in the end be considered a success. Rather than “resolving” racial ambiguity through legal fiat, the cases demonstrate the extent to which racial categories are produced and maintained through the constitutive power of the law.

Blindness as Disguise: Revisiting Harlan's Dissent

Thus far, the central claim of this article has been that standard accounts of the Plessy case fail to recognize the significance of Homer Plessy's white appearance and therefore misunderstand the role of racial passing as a challenge to both the practical application of segregation laws and the ontological assumptions upon which they depended. But state-mandated racial segregation no longer exists in the United States even while racial hierarchy and inequality persist. What implications for contemporary issues of race and law does my interpretation of Plessy suggest?

Re-examining Plessy in the context of nineteenth-century concerns over passing and racial ambiguity sheds new light on Justice Brown's opinion and the role of law in processes of racial construction and classification. But my approach also raises questions about current practices of racial classification for such purportedly benign purposes as affirmative action. Plessy is of special significance to these debates because it is Justice Harlan's dissenting opinion that introduced the now famous phrase “Our Constitution is color-blind” (163 U.S. 537, 559). Criticisms of race-conscious legislation typically invoke this principle of color blindness, frequently quoting Justice Harlan's words. However, reading the dissent in the context of Plessy's ambiguous racial status complicates the binary opposition between “color-blind” and “color-conscious.” In this section I argue that Justice Harlan's conception of color blindness both allows and requires judicial attention to the social and political forces through which race is made meaningful and consequently is not incompatible with racial classifications that seek to undermine the material conditions of racial stratification.

Harlan's dissent is remembered primarily for the phrase “Our Constitution is color-blind,” which is uniformly regarded as providing unique insight into the proper construction of the Fourteenth Amendment. In Brown v. Board of Education (1954), the Court implicitly embraced Justice Harlan's dissent by reversing Plessy and declaring that “separate but equal has no place” (Brown v. Board of Education 1954, 347 U.S. 483). And while Justice Harlan's precise language “has never been adopted by the Court as the proper meaning of the Equal Protection Clause” (Regents of the University of California v. Bakke 1978, 438 U.S. 265, 355, Brennan, concurring in part), the Court has moved increasingly toward a “color-blind” approach.Footnote ²¹

As Aleinikoff observes, “Justice Harlan's dissent in Plessy v. Ferguson has become an important cultural text in late twentieth century America. The opinion is seen as righteous and prophetic, announcing the proper understanding of the Equal Protection Clause of the Fourteenth Amendment years ahead of its time” (1992:961). However, because the principle of color blindness would seem to cut as much against race-conscious remedies—such as affirmative action—as it does against segregation, Critical Race Theorists argue that color-blind constitutionalism serves to undermine the gains of the civil rights movement and protect rather than restrict the scope of white privilege.Footnote ²² In locating Justice Harlan's dissent as the original source of “color-blind constitutionalism” (Reference Freeman and CrenshawFreeman 1995:45, note 3; Reference Gotanda and CrenshawGotanda 1995:263), Harlan's words are taken by critics and advocates of “color blindness” alike to announce a general prohibition against the state's use of racial classifications irrespective of purpose. Because the phrase continues to have such purchase in contemporary discussions of equal rights, it is important that it be properly understood within the context of the Plessy case. That context, I suggest, includes the ubiquitous presence of white fears regarding miscegenation and interracial intimacy posed implicitly by Justice Brown's deployment of the Pace argument for symmetrical equality and explicitly by Plessy's legal representation.

The crucial passage of Justice Harlan's dissent reads as follows:

To be sure, there are textual resources in Justice Harlan's dissent that seem to support an interpretation for the principle of mandatory racial nonrecognition, and not only in the metaphor of color blindness itself. There is also Justice Harlan's own formulation of something very close to the nonrecognition rule: “[T]he Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights” (163 U.S. 537, 554). And Justice Harlan explicitly denied “that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved” (163 U.S. 537, 555). Defenders of a color-blind constitution maintain that this is the plain meaning of Justice Harlan's dissent and a faithful rendering of the Fourteenth Amendment.

However, this interpretation is misleading. There are several reasons to doubt that Justice Harlan thought the Fourteenth Amendment barred states from ever considering race, not all of which are flattering to the Justice. First, Justice Harlan's dissent was filled with the language of racial pride (for Anglo-Saxons) and animus (against the Chinese), not easily reconciled with the ideal of color blindness.Footnote ²³ Those who are inclined to find here a strict prohibition against racial recognition are less likely to cite the lines preceding the famous phrase, which openly celebrate the supposed superiority of the white race. Further complicating matters, Justice Harlan's commitment to racial egalitarianism was actually premised on his racial paternalism. As Przybyszewski has convincingly shown, Justice Harlan thought that “whites expressed their racial identity best by extending civil rights to others regardless of race” and so “declared the Constitution color-blind in the name of his racial heritage” (1999:99). In this way, Justice Harlan could embrace the principle of color blindness and yet opine that “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper” (163 U.S. 537, 554). If “pride of race” is compatible with color blindness, that is because the defining feature of the doctrine is not self-imposed ignorance of race, but rather the exercise of restraint by the dominant (white) class in regard to civil rights.

The distinction between Justice Harlan's personal race pride and his understanding of the proper role of the state regarding racial minorities serves to both recognize and privatize racialist assumptions by containing them within the sphere of social rather than civil rights. But this distinction provides another reason to doubt the familiar interpretation of Justice Harlan's color blindness as a strict bar against racial classifications by the state, irrespective of purpose. Had that been his intention, the principle should have led him to view all racial distinctions as illegitimate, including laws that prohibited interracial marriage and sexual contact. Yet Justice Harlan joined with the majority of the Court in upholding precisely such a law in Pace v. Alabama (1883). Consequently, his argument in Plessy had to explain why the Fourteenth Amendment prohibited states from barring interracial travel on railway cars yet permitted states to outlaw interracial contact of a sexual nature.

Identifying the right to travel (and the equal use of public accommodations) as a civil rather than social right accomplished this task. The distinction allowed Justice Harlan to present interracial sexual contact—the quintessential example of “social equality”—as categorically distinct from civil rights and therefore unprotected by the Constitution. In this sense, there is nothing in Justice Harlan's dissent that contradicts Justice Brown's assertion that the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races on terms unsatisfactory to either” (163 U.S. 537, 544). Rather than defending social equality, Justice Harlan simply shifted the use of public accommodations in travel from a social to a civil right. His argument therefore did not commit him to the doctrine of color blindness in regard to interracial intimacy.

Given Justice Harlan's acquiescence to the holding in Pace, it is even more noteworthy that his Plessy dissent contradicted the symmetrical equality rationale in Pace. Justice Brown deployed such an argument in defense of “separate but equal,” claiming that segregation laws applied equally to whites and blacks and therefore implied no “badge of inferiority” (163 U.S. 537, 551). Justice Harlan's objection to this point was not that the law required classification by race. His dissent turned instead on a consideration of whether the law's purpose was to perpetuate the subordination of a racial group: “There is no caste here. 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” (163 U.S. 537, 559). Rather than acting as a formalistic rule of racial nonrecognition, this “anticaste principle” (Reference SunsteinSunstein 1994) focused squarely on the law's effect as an instrument of racial subordination. In this regard, Justice Harlan's analysis followed Strauder v. West Virginia (1880) rather than Pace, by condemning legislation restricting “the enjoyment of rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race” (Strauder v. West Virginia 1880, 100 U.S. 303). In rejecting Justice Brown's assertion of formally equal treatment under segregation, Justice Harlan was objecting not to racial classification but to racial domination.

As a critique of symmetrical equality, Justice Harlan's dissent located the error of Plessy less in its assumption of natural differences between the races than in the willful ignorance through which Justice Brown maintained that segregation laws applied equally to members of both races. The trope of “blindness” that is the centerpiece of Justice Harlan's dissent suggests an intentional withholding of knowledge of the racial identity of those on whom the law operated. But Justice Harlan's understanding of this concept explicitly contradicted Justice Brown's blindness to the real purpose and effect of segregation. To refute the formally correct claim that the Separate Car Act was “applicable alike to white and colored citizens,” Justice Harlan insisted upon the ordinary meaning of segregation as precisely the kind of knowledge to which judges must not be blind: “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” (163 U.S. 537, 557; emphasis added). Where color blindness suggested an act of intentional nonrecognition, Justice Harlan's appeal to common knowledge implied just the opposite: a demand for knowledge of social meaning and a refusal to be misled. Justice Brown's argument was disingenuous because it used formal legal rules to distort the plain meaning of Jim Crow. It willfully blinded itself to important “social facts” (Reference HirschHirsch 1992), foremost among them the fact of white supremacy and the use of Jim Crow as an instrument of domination.

The formalism of Justice Brown's argument was not unusual within the norms of nineteenth-century legal thought, which tended to treat law as an abstraction, independent of social context (Reference WiecekWiecek 1998:151; Reference Friedman and SaratFriedman 1997:54–5). However, when viewed as the target of Justice Harlan's dissent, Justice Brown's willingness to disregard the social implications of legislative uses of racial distinctions becomes highly significant. In rejecting “the thin disguise of ‘equal’ accommodations” (163 U.S. 537, 562), Justice Harlan was criticizing the willful ignorance of Justice Brown's symmetrical equality argument. The phrase was not, as is often suggested, primarily a critique of racial distinctions per se. Thus, the Constitution “neither knows nor tolerates classes among citizens” (163 U.S. 537, 559; emphasis added). But if not tolerating classes (such as racial caste) requires the law to take notice of the practices that keep those classes subordinated, then Justice Harlan's dissent must mean something other than a straightforward rule of racial nonrecognition.

Justice Harlan's dissent is not only compatible with more expansive conceptions of justice; it actually requires judges to discern the legislative purposes and social meanings of specific uses of racial distinctions—precisely what today's color-blind constitutionalism seeks to prevent.Footnote ²⁴ Thus he answered the claim of symmetrical equality by insisting that “All will admit … the real meaning of such legislation” (163 U.S. 537, 560). Rejecting the disingenuous claim to equality in separate accommodations, he declared, “[t]he thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one” (163 U.S. 537, 562). And so it is Justice Harlan's insistence upon knowledge, rather than self-imposed blindness, that reveals the injury in what might otherwise pass as a neutral rule. When properly understood as a critique of symmetrical equality, Justice Harlan's dissent can be seen as altogether inconsistent with the color-blind approach as it is currently conceived. Contemporary assaults on affirmative action that invoke Justice Harlan's dissent thus distort the meaning of his now famous phrase. To the extent that Justice Brown's position required courts to ignore the social significance of specific racial classifications, the Court's contemporary color blindness more closely resembles the majority in Plessy than Justice Harlan's dissent. It is the false neutrality of Justice Brown's willful ignorance (and not just the unequal accommodations) that constituted “the thin disguise.”

Conclusion

The Plessy doctrine of “separate but equal” no longer carries the force of precedent. Still, the case remains relevant today, not only as an artifact of past racism but also for what it reveals about contemporary understandings of racial identity and legal rights. That Justice Harlan's dissent in the case introduced the constitutional language of color blindness—a concept that remains at the center of contemporary legal struggles concerning race and racism—further secures Plessy's relevance. A proper understanding of the Plessy decision is not, therefore, merely a matter of historical curiosity.

In this article I have argued against standard interpretations of the case that take up the discussion only after encountering racial difference, thereby ignoring the constitutive power of law to define, construct, regulate, and maintain racial categories. Focusing on Homer Plessy's mixed-race heritage and the indeterminacy of his racial classification reveals the Court's active and conscious participation in the construction of race and the imposition of racial order. The Plessy case is important not only because it informs our construction of the Fourteenth Amendment and the treatment of racial minorities, but also for what it reveals about judicial responses to ambiguously raced bodies and the role of law in generating the orderly racial categories on whose behalf the law of segregation proceeded.