Education committee looks at how to open schools safely in the fall during the pandemic. Members will hear from the Dallas School superintendent, the national pga president , and the pediatrics professor. Watch live at 10 15 eastern on cspan three, online at cspan. Org or listen live with the free cspan radio app. All persons having business before the Honorable Supreme Court of the United States have managed to get their attention. Landmark cases. Cspans special history series. Produced in partnership with the National Constitution center, exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice and may please the court, quite often in many of our most famous decisions, are ones that the court took that were quite unpopular. Lets go through a few cases to illustrate very dramatically the visual of what it means for different people who have helped to stick together because they created a rule of law. Good evening and welcome to landmark cases. Tonight, plessy versus ferguson. This 1896 cases stubbornness the concept of separate but equal, and it unable to jim crow segregation laws to flourish illegally in this country for the next five decades after the decision. It didnt change in the United States until the 1954 brown versus board of education decision, and the Supreme Court and civil and voting right acts of the 1960s. Six decades before rosa parks refused to give up her seat on an alabama bus, plessy took a seat in a whites only railroad car in new orleans, louisiana. And we are going to start our story tonight there, we are going to introduce you to keith plessy who is a descendant of home or plessy and he will set the stage for us in our court case. Bakke this is a location from the east Louisiana Railroad. In 1892, on june 7th, home or plessy approach the train depot over here at press and charters, and purchased a ticket to board the east Louisiana Railroad car, which was mandated a separate cars established for blacks and whites. One block away, he was arrested at press and royal street. This was not a random act of civil disobedience. It was a well thought out plan, drafted by the Citizens Committee. A multi racial group of citizens here in new orleans, made up of 18 lawyers, prominent citizens who were totally against the segregation laws established by Louisiana Legislature in 1890. The conductor and the arresting officer, kane, already knew that home replace he was going to be riding the train that day. They were part of the plan organized by the Citizens Committee. The east Louisiana Railroad did not agree with segregation. His case started as a local case here in new orleans, to fight against the louisiana separate carla. Eventually, it was moved to the state level and eventually to known as the infamous landmark plessy forces ferguson case of 1896. As keith plessy, who is a descendant of the defendant in this case, we want to learn more about this as the story unfolds. Let me introduce our guest tonight will be with us for the next 90 minutes to help us understand this case of American History at the time in its implication for our society, ted shaw is the director of the university of North Carolina school of laws center for civil rights. And a prior part of his career, he was the former director of council and also president of the Naacp Legal Defense Fund from 2000 42,008. Legal defense found was founded by thurgood marshall. Welcome to the program. Mike carmen teaches at Harvard University law, he is a constitutional historian, legal scholar and wrote a book from jim crow to civil rights Supreme Court in the struggle for racial equality. Early in his career, he clerked for ruth bader ginsburg. Thanks for being here. Thanks for having me. We already always ask the question, how does this become a landmark case . Most of the High School Students were watching tonight have this in their high school curriculum, how did it get there . It got there because as keith plessy said in the video, this was a planned test case and i think one of the things that is worth pointing out is that this case was decided in 1896. And this was the final straw when it came to the end of the reconstruction era. But it also is important to point out something that most people never heard of. That is to say, a year before the Supreme Court decided plessy, there was a conference in atlanta, the atlanta exposition. And booker to washington, the most famous African American in the country at that time, spoke at that convention. The only African American i think, to speak there. And he offered a compromise, it was called the atlanta compromise, which was he was essentially saying to black people in the south, dont challenge white people for political power. Dont try to run for office. Dont try to desegregate schools and other institutions. Cast down your buckets where you are, he told them. Do industrial work. Its era. Thats something that made a lot of white southerners feel comfortable but essentially, he was saying to the white southerners, black people should do exactly with the Supreme Court suggested should happen a year later. I dont have any evidence that the Supreme Court was aware of what booker to washington said, but i wouldnt be surprised if they were and so, this was an error in which the jim crow law came into being, but it was also because of the necessity of challenging segregation laws that were already in place. This is a 14th amendment test, what provisions of the 14th amendment where the questions central to this case . He plessy is arguing that it violates equal protection clause, hes also arguing the divide lisa 13th amendment, he argues that segregation is a badge of slavery, he said the government is not to be making any laws that does contain racial distinctions, and for the government to do so by leads the equal protection clause. These are the key dates in this case as it unfolds legally. First of, all louisiana passed its separate car act in 1890. It took two years before home or plessy arrest in 1892, and his loss in the wini and Louisiana State court and then it took until 1896 for the plessy appeal to reach the Supreme Court. The case was decided just a month after it was heard. We are going to learn more about the history that unfolded around all of those events, but the louisiana a lot of 1890. Louisiana wasnt the first state to have a separate railroad car. What was happening in the south that these railroad car laws were beginning to be passed . Historians disagree a little bit about how integrative the railroads were before Southern States started to mandate segregation, so i think there is some evidence to believe that you had less and less integration overtime even before Southern States began passing these laws. Florida was the first one in 1887, than most of the rest of the south followed, there was a gap in time and in the eastern seaboard states in the south. They followed around 1898. But i think most historians think that already southern life was becoming more segregated and it was becoming more dangerous for African Americans to try to mix with whites, it also made a difference in the Supreme Court in 1883, it is struck on the federal accommodations law and open up room for the Southern States to pass the segregation statutes. Probably also mattered that a democrat finally won control of the white house again in 1884, you had a democratic administration. This is an era when the Democratic Party was very much not the party of civil rights for the Republican Party, the party of lincoln was the one that was most protective of civil rights. So now you have a government in washington d. C. Washington, d. C. , that wasnt interested in it reinforcing civil rights anymore that opened the Southern States to try to reassert themselves on segregation. I want to put the text of the law on the screen so you can talk a little bit heres one provision of it. This was the 1890 louisiana separate car act. Be it enacted by the General Assembly of the state of louisiana, that all Railway Companies carrying passengers in their coaches in the state, shall provide equal but separate accommodations for the white and colored races. We want to make a point about this law. I was going to point out that this was not the first time in louisiana that it was engaged with the question of whether it was legal to segregate people who were using transportation. I think it was 1870, but there was a case called hall versus, in which a black woman was taking a steamboat down the mississippi river, she was well off, she was trying to get to her plantation. She was ejected from her cabin, her first class cap been as a consequence of being African American. And so that challenge actually went to court, and it turned ultimately on a question that was not irrelevant to plessy, and its turned on the question of the fact that that steam ship started its journey outside of the state, and the state Commerce Clause governed. If it was interstate, it might have been a different result. You had a similar issue in plessy, because plessy wasnt the first individual to challenge the railroad law that was just put up on the screen. There was another individual but again, that trip started outside of the state, so the same result. Plus hes case was totally interest eight, so a raise the question and only the question of whether or not it was constitutional to segregate him and the railroad car under this state law. Its an interesting note that people need to understand that the Railroad Companies in like this law either because it was expensive. In more than one way, they might have to put additional cars on the train and their conductors have to police race relations, and if you made a mistake, it took somebody that you thought was white or somebody who thought was black and put them in the other car, and it turned out that they were not black and they could sue you. It could be very expensive for the Railroad Companies. After this law was passed, the committee of citizens was formed and policy talks about that, it was an Interracial Group in the city of new orleans and they hired a lawyer. To help guide them through this. This is one of the things that wonderful thats wonderful about the series, because this is a gentleman that deserves the placing separates history. Albion tourgee theres a name thats unknown to many americans. Its a name unknown to many americans. Who was . He he was a white Union Soldier who fought in the civil war and was three times wounded and served a period of four months as a prisoner of war. After the war, he came back to the south, he lived in North Carolina, in fact he was engaged in some kind of tree farming business. But he also was politically active and outspoken, because he believed deeply in civil rights and Constitutional Rights for the freed men and women. Friedman, at the time. He ran into some problems because of that, and his safety was that issue. And so he left. And he went to new york, he lived in upstate new york and it was it their was there or from, there or from there, when you heard about the that when he heard about the louisiana law louisiana law and the challenge. In the challenge the so that he wrote an plessy article about challenge. He wrote an article that appeared in a chicago it appeared as chicago newspaper newspaper. He was he then contacted was then by the citizens contacted committee by and because a committee because they they knew this knew this was was a lawyer a lawyer who had experience it a little bit of and could be helpful. Experience in this could be he came helpful on board and affiliated himself with he could start with the local a local new Orleans New Orleans lawyer lawyer by the name of. A lawyer walker. By the name of who handled walker who the matter handled the matter in the. New orleans court. And that is how that is how he got involved in he got involved in the the case. Case. He is he is described in some describing some biographies as the biographies as the nations leading nations leading civil civil rights lawyer of rights lawyer of the era. The era. He took on the took on the case pro bono, case pro bono. Can you add more can you add any more meat on the bones, that people should meat under the bones know about him . . What should i dont know as people know about much about him as i would him . I dont like, he was a famous know as novelist. You much about him as i would wrote books, he wrote like. He was them anonymously a novelist. Because he was he wrote them worried that if he anonymously affixes name to the because he was books, he was worried if his name was writing, there would be affixed to the books he was consequences to writing, there would be consequences. Pay. People people were asked to use might be apt violence to suppress to use violence opinions they didnt to like. Suppress opinions they he didnt like. He sold sold 200,000 copies of a book 200,000 copies of anonymously and then he wrote a book anonymously. Another book, and he then he signed it as the wrote another book author of this and signed it as the first book, author of the first book. Wouldnt put his name on his book. He would not put his name on the nice lead books. This is into a nice lead into the visit to the our visit to mick look museum in westfield, a museum in westfield new york new york, to hear to hear more more about his books. He about wrote over albion tourgee books, 30 of them. He will be lets learn a little 30 of them. Lets learn a little bit more about. Him bit more about albion tourgee because of his. Because of his relationship with former relationship with slaves, former during the civil war and right after slaves during the civil war and after during the construction, during he saw reconstruction, he saw firsthand with firsthand what the problems the problems were were. And he wanted to fix those he wanted to fix those problems. He problems. He started writing articles started writing on civil rights, he articles and started writing books, books. In 1879, the first book he wrote 1879, the was called a fools first book he wrote was errand. A fools and it was during errand. It was during reconstruction reconstruction. And a lot of people a lot of people, especially down there, especially down there, didnt want to hear did not want to hear about former about blacks, former slaves having any slaves having rights. Rights. So it it was was like a target a target point that made a lot point that made a lot of people angry. Of people angry. It is so its so controversial that he controversial that he never put never put his name in the his name in the book. Its book. It is a fools errand, a fools errand written by written by one of the one of the fools. His fools. His name does not name does not appear. Appear. He was so it was so successful that he decided successful that he decided to start writing more novels to write more novels and books. And books. His his second book is the second book is the same way. It is same ways the bricks without first. Bricks without straw straw, by the by the author of author of a fools a fools errand. Errand. And no name. Albion tourgee argued albion tourgee this case before the argue this Supreme Court, case before the later on in the Supreme Court. Later on in program we will learn more our program, we will about the centrally of this argument. Learn about the centrally of his argument. I we would also will tell you like to get you involved in how you like to get involved in this program. If you this live in the central or program. If you live in eastern time zones, Eastern Central time zones two seven four two zero to. Seven four four eight nine zero one. You can also tweet us a comment. Use the hashtag landmark cases. Time zone 202 7488900, when you do, Mountain Time we will mix zone 202, 8901. Tweets throughout and you can use the hash the program for our two guests. Tag landmark cases. How did he become the home or plessy was central figure . A member of the Citizens Committee in new orleans. How did he become the central figure in this case . Ted after the first case, do you want to the case that i . After the first case that i mentioned mentioned before, before failed because of the issue of the interstate that failed commerce, due to the state of the committee interstate commerce needed to come up with, the committee someone else. Needed to come up with and someone else. He he actually knew actually knew the the individual who individual who headed headed up the committee up the committee,. Because and because of that of that relationship. He relationship, he agreed that agreed that he would he would be be the the plaintiff and the plan from the test test case. The case, the other thing thats other thing that is important important to to acknowledge acknowledge is that it was a long is that there was a long History History in new orleans in new orleans in African American upper class,. There was an so to speak, African American relatively upper class so speaking, not upperclass to speak. But, they relatively speaking. Tended to be light they tended to be skinned light skinned, almost exclusively, almost, exclusively, as home as home or plessy or plessy was. Was. This is an this was an individual individual who could pass for who could pass white, that is an for white. This important part of the story, an is an important part of the important part of the test. Story. He he announced announced that he was that he was a black a black man, man, or knee grow, or a knee grow, or a colored man at the time a colored man, to the at the conductor time to the and conductor. That was op that was all pretty ranged rearranged, it and it led led to his arrest to his arrest. But that that was an essential part of the was an essential part of the story story and of this and of this committee. Committee. He could so, easily pass for he could easily pass white but as for white i said before, but as we the Train Company said before, didnt like this law either. A Train Company did and they were not like this law involved in either and were helping set the involved in helping set test the test case. Case. I i read that they hired the read they hired detective that made the the detective who made the arrest so arrest, he would be so he was arrested on the right arrested on the right charges and not for charges. We vagrancy. We saw in that video saw in a video that the that they only only went one block went one block until the arrest was before the arrest was made. Made. Is this one of is this one of the the first examples first examples of of a test a test case going to the Supreme Court . Case going to the Supreme Court can you think . Can you think of a new concept for people gathering together as citizens and trying of any to push a case to the other case with a Group Gathering court . I think there were other examples. A citizens to push a case in a court . I think there were other there is examples. There was a case in the a case in the first decade of the first decade of the Supreme Court in the Supreme Court in the 17 nineties when somebody 17 nineties wanted to test when someone the wanted to test the constitutionality of the attacks on constitutionality of a tax on carriages. It carriages, they created a phony created a phony case and they managed to case and managed convince the Supreme Court to convince the to take it. Supreme court to take i think there were a lot it. Of i cases in the early think there were a lot 19th century of cases in the early where people would 19th century where manage to people would man of fabricate cases in order to it managed to get something tested in fabricate cases in order to test something in the Supreme Court. The Supreme Court. First of all, so it had to go through state first of all, it had to go through the courts state court because it was really the because it was really the state law that was being state lobbying tested. Tested. This this is where is where John Ferguson John Ferguson comes comes into the story. Into the story. Can you can you tell us about tell us about him . Him . John John Ferguson ferguson was the was the judge judge. , he knew the case was he knew the case was coming also, coming also apparently, apparently. He but he was the was the judge judge before before whom omar plessy was, i guess he home or plessy was arranged something was a rain or something comparable to that. He comparable to that. Originally was from he was originally from massachusetts massachusetts. And he had come south after the and had come south civil war after the civil war. He he married the married the daughter daughter of of a prominent a prominent lawyer, lawyer and he became and became active in active in state state politics and as politics. As a consequence of that activity, a consequence of that activity, he he ran for the ran for the bench bench, and became and became a judge. A judge. So thats a little bit about thats a little bit him. About him. Is it is it important important to know what to know what his his finding finding was in this was in this case, case and what and was what his legal thinking was . That he upheld state . What his legal thinking less . Law he knew enrolled in a way that indicated home or plessy had a tough road ahead. That the lobbying challenged was going to be upheld. And so, he rolled against homer plessy. We saw it took a few years before this case made it to the Supreme Court. Some of that was strategy on the part of albion tourgee. He was hoping for a more favorable court. Can you tell us what was happening to the court in that era . I dont know specifically why this case was being litigated for so long. It was not unusual in the 19th century for cases to take a long time to get to the Supreme Court. I can think of cases in the 18 thirties that were first argued in 1831 but were never decided until after jon marshall had died. Thats to say 1837. It was not that unusual for cases to take a long time to percolate. Even today, its not unusual for it to take a couple of years for something to reach the Supreme Court. There might have been something specific going on. Ted, do you know why it took that long . I think you are correct when you say it took some time. Its a roll today and i think it has always been a rule that it takes a while for these cases to get their. Albion tourgee however never, to my knowledge, set foot in the south again and certainly not in new orleans during the time the case was being litigated. It was notoriously slow. As a consequence, him litigating the case also had a time element that was added i dont know if that really explains why it took so long for it to get there. I also want to mention there was a another lawyer, another white lawyer, was engaged in the case. That was Samuel Phillips. I have to mention him because i teach at the university of North Carolina chapel hill. Phillips and his family were very much part of the university of North Carolina chapel hill. He also served as the solicitor general of the United States for quite some time one of the longest serving solicitor general he also became persona non grata in the south and had to move to washington d. C. He did and work most of his life in washington. We met Samuel Phillips in an earlier case he was the solicitor general during the civil rights cases thats right. He argued the case on behalf on behalf of the United States and lost another person that belongs in the civil rights history annals we will take a few calls and move on to the case as it was heard before the Supreme Court in 1896. First time is charles in ohio. Hi charles, if you are on. Thank you. There has been a lot of discussion recently about jim crow laws. Who was jim crow . Thanks. What is the origin of the name jim crow applying to those laws . I dont know that i would claim to have the best understanding. Its a nickname that was given but i dont remember all the origins of this nickname for segregation. For what used to be called earlier in the 19th century as black laws. The term jim crow was coined at some point and its stuck. Next is bob watching us from houston. Hi bob. Bob you are on the air. Im. Josh josh is in iowa. Welcome service sir. Hi guys. I have two questions. When plessy was decided, was there any National Outcry denouncing the decision . Secondly, where their laws passed nationally after the plessy this isnt with handed down . There was almost no Immediate Reaction to the place he case. There was very little reaction. I know there was some newspapers in the north that commented on it in brooklyn and chicago. They did not have a lot to say about it. There was no National Outcry. If you told someone that we would be sitting here 100 somebody years later talking about it as a landmark case, i dont know they would have recognized it for that purpose. As to whether there were National Laws passed, these were state laws being passed. I dont think congress was engaged very much in passing laws with respect to racial segregation at this time. Although im sitting next to someone who may know more about that than i do. The point about northern reaction. The New York Times reported it on page three in a column about railroad news. They werent even thinking about it as a civil rights issue. I think its exactly right. We would not think of plessy as a landmark case had not been for brown. There were black newspapers that were critical of the decision, but its certainly not the case that most white americans were surprised. They certainly were supportive of what the court was doing. Congress wasnt going to pass any civil rights legislation for another 60 years. That wasnt even in the cards. There were white southerners who wanted congress to do negative things on civil rights. When democrats and the south kind of took over congress and elected Woodrow Wilson in 1912, there were some discussion about repealing the 15th amendment which guarantees black suffrage. Woodrow wilson introduced racial segregation into the civil service. Im not aware of any effort to pass a national segregation law. I dont think congress had the authority to do that. This is something the states would result. It would have been super fluids. The south had their loss in place. It was upheld by the Supreme Court and segregation became the law of the land in the south. Mary elaine makes this point on twitter. Given that louisiana has as unique civil law tradition, such a statute would be issued to challenge. What is it about louisiana and its civil law . Its a code state. That is to say it traces its legal system to france and not england like the rest of the United States. I think that is the reference the commentator or the question is making. Im not sure how that would have impacted how this case played out. I dont know that it would have. Louisiana is subject to the 14th amendment the same way as everybody else. Other Southern States had passed very similar statutes. I think louisiana was distinctive in some ways there were some different rules and regard to slavery for example. Slaves and louisiana often had a stronger case in their freedom suits them slaves in other sovereign states that did not have the napoleon echoed background. On this issue, i dont think there would be any difference. Ironically, louisiana was also the state that was involved in the first case that interpreted and applied the 14th amendment. The slaughterhouse cases. That is coincidental though. We are talking about plessy versus ferguson in 1986. Bob is with us from houston. Thanks bob, you are on the air. Im really enjoying this discussion about a really important case. One thing i would like to ask you folks, there had been a mention about a question of interstate railroad travel and how it affected the rulings on the rights of black people and separate compartments. Were there any restrictions that came up under other cases on banning segregation in interstate travel . Were there any attempts to introduce such a ban . One of the First Federal regulations that applies to railroads is the interstate commerce act of 1887. There had been discussions during the congressional hearings on that about regulating the issue of segregation. The final version of the statute forbids undo or on reasonable discrimination. Thats mostly about the rates that are charged by Railroad Companies. The interstate Commerce Commission had educated some cases on the issue of whether the prohibition on undue discrimination, whether that forbid segregation. The interstate Commerce Commission had rolled you have to allow African Americans to travel, but segregation is not undo discrimination. The interstate Commerce Commission actually ruled in favor of the practice of segregation. Solomon is up next from washington, d. C. Hi solomon. Yes. Good evening. My question is, did the dred scott decision have any bearing on the decision for plessy . If so, i would like to know. Thank you. Well, tawnys court of course decided the other most infamous case. Some people call this, in legal academia, the anti cannon. Some of the worst cases that we are not proud of. Dred scott certainly, tani says and wrote that black people had no rights that the white people were bound to respect. Quite gratuitously, rule that black people could not be citizens of the United States. Whether they were slaves or free. So here we have the court in 1896, deciding that separate but equal is unconstitutional. The two cases to the extent that they have a relationship at all, or related perhaps in the fact that they are two of the worst cases that the Supreme Court decided and that deprive African Americans of basic and fundamental rights. There is no, i dont see any legal connection between the two cases, because. They thought of course it, was overruled by the 13th amendment. One could point out that the 13th amendment was part of the argument that was being made, along with the 14th amendment. In the plessy case. Other than that, im not sure that i think the two are related. Could i just add something . Its not inconsistent at all, i agree with what had said. I think its important to note that the Dred Scott Court was dominated by southerners. There were five southerners in dred scott and the plessy court was actually control by northerners. So its kind of stunning that even a court with a majority of northerners they so unfriendly to the rights of African Americans. And the other point is, if you took a referendum vote of americans at the time of those decisions, both of those rulings wouldve been more popular than not. So we regard them as outrageous decisions, and of course they are, given our values today. But most white americans which is most americans from the 1857 agree that African Americans didnt have Constitutional Rights. And the overwhelming majority of white americans in 1896, lived with racial segregation. These are Court Decisions that are very constant and with the dominant mores of the age. Abuse of thankfully changed since then, so we are able to criticize those decisions. The court heard the case in april of 1996, this is the room inside the u. S. Capital. The court did not have a room of its own at this point in history, where the court sat. Today it is set up as the old Supreme Court chamber. Excuse me, the old senate chamber. The court was meeting in the capital in this space. We are want to talk a little bit about the justices on the court, the chief justice was melba vail fuller. He is one of three cleveland appointees, along with edward wright, who had been previously a louisiana senator and later nominated by taft to be chief justice. Rufus pakenham who is nominated in the second term of office. The harrison appointees, the republicans were david brewer, nephew of Justice Brewer and he did not participate in the plessy case. Henry brown, who want up writing the majority of the opinion in this case, and george a harrison appointee. One lincoln appointees still on the court. He stephen j field, he had the longest appearance on the court from 1853 to 18. Horse gray. And John Marshall harlan, we talked about him in past cases. What should people know about this court and the fuller court . Harlan was the center and unpredictable as the center given that he had been a kentucky slave on or before the civil war. It was a 13th amendment is the one abolishing slavery. And he opposed 1876 1875. Its a little bit ironic that, its worth noting that there were some other opinions that there were some extrajudicial writings, that even john harlan wouldve had no problem with the state segregation of education. He distinguished state mandated segregation from railroad passengers. Just as white, maybe its worth noting that he didnt have a democratic president all the way from the civil war until eternity for that is the first time that you get southerners on the Supreme Court again and one of those southerners was edward white who had been a confederate soldier and that apparently he belong to clean like organizations in louisiana in the years after this war. So it took a long time for the south to make a political comeback and from the civil war, finally, they are getting justices. Some of them are ones they wouldnt feel very comfortable with. Even the chief justice was a democrat who opposed lincolns emancipation proclamation during the civil war. It actually played a role as a democrat during the civil war inside reading chicagos schools. Some of these justices dont have a very attractive backgrounds from our perspective. I dont know how much it matters whether they are democrats or republicans, the Republican Party who is giving up on its commitment to protecting the civil and Political Rights of southern blacks. So Justice Brown ought to have been someone who you would expect would be supportive of civil rights, he comes from massachusetts, the cradle of evolutionism. But even Justice Brown, who writes the opinion, is fine with racial segregation. The other thing i recall is that the late alien higginbotham, third African American judge, and also author, scholar on race and the colonial era. I remember him saying that, if you look at that court, the sent the dissenter, harlan, was the only one who didnt go to one of the top law schools. Harvard, and yale, etc. All these other justices on that court, went to some of the quote best schools. Harlan comes from kentucky and was educated in kentucky and and he was the one who dissented, with an equal ruling. As we said, albion tourgee was council representing home or plessy before the Supreme Court. We are going to return to the Mccord Museum in westfield new york westfield, new york. Which has some of his papers including some from his work on the case with plessy. In our archives, we have the actual document that he held and read at the Supreme Court. Its 45 pages long. We dont know that the they actually got through it all because they stopped and asked questions, this is a pretty lengthy thing. So we are not even sure that he made it through the whole thing at the Supreme Court. 45page oral argument, you said at the outset that he base the challenge on the 13th and 14th amendments. Can you give us a synopsis of what kinds of arguments he made to the court . The 13th amendment is the argument that racial segregation is one of the badges or incidents of slavery. The 13th amendment forbids slavery but its also interpreted for congress to enforce it to go somewhat broader. But not so far as to have a ruling on segregation. Segregation is not as they said, a badge of slavery. On the 14th amendment, the argument is that the government is not a lot to know the race of its citizens. Government has to be color blind. And then being able to travel on a public accommodation without being insulted because if your race is a basic civil rights, and the 14th amendment guarantees that all americans, all people in the United States not even just citizens, are protected in the equal protection of the law. So that is basically the argument. The Supreme Court today hears oral arguments about 75 of them. For the most part they are confined to one hour. What was it like back then . I dont know whether i can tell you, earlier they would sometimes spent days arguing cases, but i dont think that is true by the 1890s. And plessy is not regarded contemporaneously is a big deal so its not like it was a case where you would allocate an extraordinary amount of time, its a routine railroad accommodation. They will probably get an hour or Something Like that. Danya webster would have arguments for three days but they would rely on briefing, it was an oral argument. I think thats right, although when brown was arguing in the 19 fifties, brown was one of these cases that was argued over a number of days and of course it was argue twice so there were cases that argued for and that went for days and i agree i think that plessy wouldve been one of them. Reporter morris argued for the state in this one case before the United States Supreme Court. When it takes a more phone calls and it will come back with to the decision. It was handed down a month later in may of 1896. Lets hear from c c in portland, oregon. Icc, youre on. Hi. I have two questions. One for dr. Shaw. I want to know how the plushy cases taught in law school. What are the lessons or legal issues that you want students to learn from the plessy case . Just the prominence that it has in law school curriculum. What role does it have . What ideas are you trying to bring across to the students . And then the other question, is how are people jurors today, who defined themselves as strict constructionists, how do they view the policy how do decision . They interpret it . How did they wrestle with it in their mind with the point of view being strictly constructionist . With respect to the first question, i was taught in law school that it depends on whos teaching it. I know when i was in law school a long time ago, we were certainly taught that plessy was not a decision that the court made which stood up overtime although, after brown v. Board of education was decided in the 19 fifties, 1954, there were scholars who said that policy was in fact decided on grounds that were pretty solid. Browns grounds werent decided solid. When i teach plessy there are a few things i want to get out of it. First, it is the capstone case of the redemption era. The era that ended reconstruction. If you read the decision, one of the things about it is theres this element of intellectual dishonesty in the decision that i point out to students. Justice brown, and one point, talks about the implication that was argued that stigmatized people like people. He said that to the extent that theres any stigma brought by the law, its not because the law did so itself what was intended to do so, but because black people interpreted it that way. Its kind of like blaming the victim phenomenon in the case. The other thing that i think is important theres so much more we could same talking about plessy. Harlans dissent is the thing that perhaps survives most. That deserves some attention. Im sure we are going to talk about his dissent and we will get to that. I think its also important for law students to understand that there are twists and turns. We cant ever think that because a case is decided in a particular way or a constitutional matter is resolved, that it is resolved for all eternity. That it isnt that isnt necessarily so. That is part of what we see when we see plessy. I will wait till we get back to the dissented south. As to your second question, i think i will turn that over to my colleague here. I think the question of racial segregation is a real problem and always has been for originalists. Thats because of something ted alluded to. We all assume that brown is obviously right, but as a matter of understanding of the original interpretation of the 14th amendment, brown is somewhat problematic. The people who wrote the 14th amendment, for the most part if you ask them, they would have denied that what they were trying to do was trying to deny School Integration or railroad integration. They were trying to prevent recently freed slaves being denied rights. For example, the same congress that wrote the 14th amendment also ruled the School System in columbia and segregated it. Original lists want to defend brown because if the original understanding of the 14th amendment does not justify brown, thats a problem for original lets. I think they have gone to heroic efforts to tell a different type of history. They are happy to dismiss plessy. They like to say plessy isnt example of why you should be originalists because plessy is the court reflecting the country mores of the time. The problem is they are assuming the original understanding of the 14th amendment was desegregation. I dont think that is actually the best historical rendering of what the people who wrote the 14th amendment were trying to do. Seth is in chapel hill. Youre on the air. Welcome. I have a question about harlems dissent. Its im wondering if you could talk about some of the central issues with his opinion, including some of his racist language where he talks about whites being superior. This idea of the color blind constitution. Thank you. I want to put up some language from the majority opinion and harlans dissent. Then we will answer his question. It was a seven to one decision in may of 1896. As we mentioned, one justice did not participate and the one vote set was harlans. Justice brown wrote the majority opinion and heres a part of what he said. If the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a combing bling of the two races upon terms and satisfactory to either. What are you hearing there . Legally. I smiled for a moment when you read that language. That language always sticks out for me. And the nature of things. It is loaded. It also reminds me of another case that most americans dont know about involving women. The question of whether or not a woman could be a member of the illinois bar. The court ruled that she couldnt be. Theres also that phrase in that opinion. In the nature of things. So, the assumptions about African Americans and plessy and women and brad will were loaded assumptions that reflected the bias that was the rule and not the exception of the time. The language in the dissent about color blindness has had such power, staying power, that many people believe it is it has the force of law. We should talk about that language. The idea of the color blind constitution is very appealing. Its a very eloquent, you know, its very eloquent language. But the Supreme Court has never ruled that the constitution requires color blindness in all respects, although many people act as if it does, including some of the justices on the Supreme Court. So, we should have a little bit more discussion on that perhaps. Heres exactly what he wrote. Our constitution is color blind, and neither knows nor tolerate classes among citizens. In respect of civil rights, all citizens are equal before the law. On that phrase, we should note that it was actually albion tourgee in his argument who used the color blind phrase. Justice harlan used it in his decision. Albion tourgee is committed to racial equality much more than Justice Harlan is. Harlan was a slave owner. Hes in a opponent of the emancipation of slaves in the 13th amendment. At some point, he does say racist things in his opinion. He believes all men have race pride. He believes the white race will continue to exert its supremacy, but that it is a mistake to use a lot to accomplish that through segregation. He says some extremely racist things about Chinese Americans as well. Its just a mistake to think that in 1896, that there are any neil about abolitionists on the Supreme Court. They all think interracial marriages about think. Most of them do not believe African Americans ought to be voting. They dont believe they should be serving on juries. The president of the United States is declaring sectional reconciliation which is achieved at the cost of the rights of southern blacks. Teddy roosevelt a few years later will talk about the importance of race purity being maintained. This is what most white americans believe and the justices are a reflection of that. We know John Marshall harlan would have been fine with School Segregation, he just happened to draw the line at state mandated segregation of transportation. We had an earlier caller who asked what a strict constructionist view of this case would be. Justice Thomas Clarence talked about the policy decision. Lets listen to what he had to say. People look at the court in a kind of Current Events mode. Our work is long term work. It has to have a much longer shelf life. If you look at the first Justice Harlan, he was the sole descended dissidents in policy versus ferguson. Look how long his shelf life was. His dissent must be almost timeless. He argues the court has to take the long view. What are your comments when you listen to that . I have a few different reactions. Wed all love it if the Supreme Court played the role of iraq defender of the rights of minorities. But a Supreme Court that was so out of touch with the contemporary mores would be a Supreme Court that would either it destroy itself or overturned by constitutional amendment or would have its decisions ignored. The Supreme Court decided in favor of game marriage in 2015, what if they try to do that 30 or 40 years earlier, nobody would have paid any attention. If the Supreme Court had decided roe v. Wade or struck down the Death Penalty 20 years earlier than they decided those cases in the 1970s, the country would not have been prepared to accept that. That is true about brown v. Board of education. The naacp did not bring a challenge until after world war ii because they understood that they would not win and, even if they did win, the country would have rebuilt against the decision. Its nice to believe that the Supreme Court can always do the right thing. The Supreme Court operates within the current cultural and Historical Context and theres a limit to how much they can improve society. Heres a bit of what he wrote the d color was referring to. 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 exclude from our country. I alluded to the chinese race. But, by the statute in question, a china man can ride in the same passenger coach with white citizens in the United States, while citizens of the black race in louisiana, where entitled by law to participate in the political control of the state and nation. Are declared to be criminally liable to imprisonment if they write a public coach occupied by citizens of the white race. How should we view John Marshall harlan . As a, in some ways, a man of his time. Although in some ways, to some degree, a bit more progressive than many of the white people of his time. Certainly those on the Supreme Court. But there is no doubt that this view, his view, with respect to Asian Americans, Chinese Americans, was just flat out racist. Already there had been a lot of litigation or a significant amount i should say with respect to Chinese Americans and Asian Americans. Where they stood. Would they be deemed white for some purposes . It isnt like they werent also on the table when it came to Constitutional Rights. But, this is a very unfortunate part of this opinion. Also very racist. Again, harlans views, even with respect to African Americans, he did not deem African Americans to be social equals. What he was saying in effect was it is unseemly and unnecessary for us as white americans to behave this way. Theres no fear that we should have that black people are going to be our equals. Its just not going to happen. The white race has been and always will be the dominant race. He believed in White Supremacy also. After losing his challenging the Supreme Court, homer plus he went back to his life in new orleans. He played his he paid his 25dollar fined for breaking the law. He spent the rest of his life pretty quite selling Life Insurance and died in his sixties. Hes buried in new orleans. This did not become the centerpiece of this life for the rest of time. We will take some more calls and learn about what this decision meant for life for African Americans in our country. Lets hear from jim in omaha you are in the year on the air. Thank you for taking my call. Ive been watching you guys for three weeks. Im learning things from the moderator and your guests. One of the things im learning is the history of our country, the understanding of the 13th, the 14th, the 15th amendments. The reconstruction amendments and the idea of our founders and what they did at the convention of 1777, knowing they had an issue with slavery, knowing they would like to see it be fixed in the future. I would think even with the jim crow laws and these three amendments, what you guys have been saying tonight, i guess it was really tough in that timeframe about history for the people of different races to understand. I guess what im getting at is the 14th amendment, knowing that because of red dred scott, thats why we got the 14th amendment. Knowing that we wanted to give the citizenship and that we all should Work Together and it should not have taken until in 1964 for the civil rights amendment. I would like to hear the two gentlemen comment on it if you know what im getting at. Would you like to start . Sure. Thank you for that comment. Certainly, i think we should understand the three reconstruction amendments. The 13th, 14th and 15th amendments. Understand them as being a kind of a second founding. I like to think about those who advocated for it as being a Second Generation of Founding Fathers and mothers. Because there were women who were engaged in advocating for the 14th amendment, although women found themselves to be terribly betrayed when it came to both the 14th and 15th amendments and some ways. In profound ways. I think the country was remade by the civil war and after the civil war. I think that is what the caller was, in part, referring to. I would add that it is important to think about the relationship between the post civil war amendments. In particular, the 13th and 14th amendments, which were argued in tandem. I think that one of the things weve lost through the Supreme Courts cases is this relationship and understanding of the relationship between the 13th and 14th amendment. The 13th amendment was not only about ending slavery, although the court seemed to have said that in the civil rights cases but also, it was about the badges and the incidents of slavery that somehow was lost by the Supreme Court so it took us another hundred years after the post civil war amendments, to really breathe life into them brown was a key turning point and brown of course, in part, sounded the death nail. Although it did not kill it completely for plessy versus board of education. It was the definition of policy. You literally wrote the book from jim crow to civil rights. What would you say to that color . I think its important to see that you make progress and then theres backlash against the progress and people are invested in the status quo and dont give up that investment easily. The 13th, 14th and 15th amendments were about trying to give americans basic civil rights and Voting Rights and ending slavery during reconstruction, there was a serious effort made at racial progress African Americans turned out to vote in large numbers. They elected a large number of office holders. They got access to Public Education for the First Time Ever in the south. But white southerners were prepared to fight against that and ultimately the war down the will of white northerners which had never been that great. Reconstruction was ended and there was a period of jim crow. Then you had a second reconstruction, but the second reconstruction also produced backlash. I think its important to see that the struggle isnt ended. Today, you have mass incarceration and separate and unequal schools. You have poverty and segregation and the struggle goes on. Theres always resistance to change. We said earlier that the decision was not widely noted at the time because it reflected the view of the majority. Here is just one article in a kentucky newspaper. Joe writes to us on twitter. Civil rights cases say there is not enough state action to uphold congressional law to stop discrimination. He says on twitter, even with a state law, in need only be separate and equal. Next up is our caller from chicago. You are on the air, welcome. Hi thanks for having me susan. So, there is a lot of discussion around the lengths the Supreme Court can deny rights to americans they should have. You mentioned how diversity can play a role as well. The percent of northerners, southerners, the level of education etc. How do you think the current demographic in todays Supreme Court could impact some of todays rulings . Particularly taking into account factors like gender and ethnicity. How can we as americans promote the diversity of justice given they are lifetime appointees . We dont have the same situation they had where americans are being denied rights because its not of the time. Thanks. You want to take that . Sure. I think Supreme Court justices in their constitutional rulings always reflect their backgrounds and political beliefs and ideological views. One thing that is distinctive about Supreme Court justices is they tend to be very well educated, reasonably affluent and, for the last few years, theyve all gone to yale or harvard law schools. That actually has an effect. One reason the Supreme Court in the last 50 or 60 years has been more liberal on cultural issues than the average american is because very well educated relatively affluent lawyers are much more progressive in their views on abortion. They are much more committed to the separation of church and state. Much more progressive in their views on Sexual Orientation in support of gay marriage. I think that is a good explanation for why the Supreme Court decided brown, and a time when the country was still buried faded on rice race, why this court struck down prayer in school, abortion rights and the Death Penalty. I think what has happened is the Political Parties have understood that the Supreme Court is very important for them to control, and to some extent, theyve been able to nullify that progressive bend that well educated reasonably affluent lawyers tend to have. Now what you are going to get is reliable liberals appointed by democrats and reliable conservatives appointed by republicans. After senator mcconnell refused a hearing to Barack Obamas effort to replace justice scalia, the republicans have managed to keep control of the Supreme Court which theyve had for basically 45 years. That has impacts on finance reform, race based affirmative action. I think you will see less of the bias of elite lawyers and more political decision by people who are appointed for political reasons. If i may, i want to point out another factor, at least with respect to the demise of plessy. Although the court never said a word of it in brown, we have to understand that brown was decided during the cold war. You had america, after world war ii, and this cold war with the soviet union. With this tremendous flaw that was evident in the United States how does it claim to be the beacon of a democracy, and at the same time, even after it fought a war against european racism against jews. At the same time, it still has segregation in place intact. Plus he had to be abandoned when it was abandoned. In part, it was not just a matter of law, it was a matter of the geopolitics of the time that pushed the court to where it went in round when it went there. James is in green field, massachusetts. Welcome to our program on plastic persons ferguson, 1896. Thank you very much susan i have two questions that really interesting about this discussion tonight. The people who actually planned the court case and who gave birth to this case before Samuel Phillips and albion tourgee. Can you give me some kind of an idea of what kind of people where they . Were there any woman in that decision . Whether any blacks or whites . What was the makeup of that decision . The other thing was seeing the Justice Brown denied the opinion of the court. He was a native of massachusetts. He refers in his decision to the early case of roberts versus city of lawson. I wonder if you can explain if that played a role in this case as far as he was concerned . Thanks very much. Thanks. In the interest of time, we will have you answer the first one and you the second one. Hes basically asking the Citizens Committee and whether or not there were women involved. Can you tell us more about the group the challenged this . It was not a huge group. Correct me if im wrong michael, i think some thing around 15 and 20 as i said earlier, there were these African Americans who were part of this middle Upper Class Group of people. Light skinned, etc. They understood that they would be treated the same way as dark skinned African Americans, and so, they wanted to challenge this law i think the group was interracial although it was perhaps more made up of this light skinned African American component of the group. They knew that their lives were going to be very heavily circumscribed by this law and its implications of other areas of life. Justice browns decision and the city of boston . Right. There is a case from about 1849 or 1815, when Charles Sumner was later a radical republican who believed in a strong form of racial equality during reconstruction he was arguing against School Segregation in the city of boston. He was invoking the free and equal provision of the massachusetts constitution which is the same provision that the court in the 17 eighties had used to abolish slavery in massachusetts. He was arguing School Segregation is inconsistent with the free and equal provision of the constitution. The massive Massachusetts Court said no. Separate but equal is consistent with the massachusetts version of the equal protection clause. That seems significant because massachusetts is the state that you think of as the cradle of abolition is a. But even massachusetts seemed to think segregation was permissible under state laws. Lets talk about the legal implications of the places decision. For example, on twitter we have this question. Did the place see case affect other races . For example, african indigenous americans or asians. If so how . I have a question. How was plus he cited in future cases in the 20th century . In the beginning of the early 20th century, there remained a number of cases in the south that involved jury service and voting. A few of these cases in the early 1900s, they were not successful for African Americans. There was a long dry spell with respect to using the 14th amendment for its original purposes. That is protecting African Americans. In 1917, there was a case that came out of the city of louisville involving housing segregation. Ironically, or maybe not, the plaintiff was white and trying to sell his home to an African American man. He prevailed in his challenge to the city. He was saying they were discriminating he succeeded under the 14th amendment. For the most part, the 14th amendment did not have a whole lot of force until the plan that the naacp and the end aa cpp Legal Defense fund devised when they began to challenge separate but equal. They began to challenge it using the fact that we alluded to before. The railroads didnt like segregation in plastic because it cost too much. Well, separate but equal education, particularly higher education, was tremendously expensive. It was never meant to be equal it was not going to be equal. Strategically, they began their that was not until the late 1930s and into the forties, that those cases began. That was the road to brown versus the board of education. In a place like california where they barred segregation of African Americans in their constitution around 1880, they mandated segregation of Asian Americans and southern. Southern texas, they certainly mandated segregation of latinos. However, i think that is a mistake to think that was inspired by plessy. Segregation laws were adopted before plessy. In california, it was 15 years before plessy that they began segregating asians into separate schools. So, i dont think it was necessary for people who are inclined to segregation to have the policy decision other racial groups were certainly segregated. In california, it was much more important to discriminate against asians agents were ten times more populous in california than African Americans were in other states. There was a case in which, in mississippi in the early 20th century, in which a chinese american man sued to challenge the segregation laws as applied to his daughter because they were assigned to schools for black folks. He wanted them to be able to attend the white schools because they were better schools. He lost. The irony is that segregation played out in all kinds of twisted and ironic ways when it came to people of all races. In 1947, there was a case in california on the state law that involved segregation of Public Schools it was called mendes. Without going into the details of how that was decided, it ended up that the Mexican American children were admitted to the predominantly white schools because the law did not support segregation there the state on california. Our guests have explained how it took until 1954 in brown v. Board of education decision to unravel plessy versus ferguson. Here is a little excerpt from that decision. We conclude, says the Supreme Court, that in the field of Public Education, the doctrine of separate but equal has no place separate educational facilities are inherently unequal. You talked about how that it focused on education that case. Also, by 1964, the Civil Rights Act was the next nail in the coffin for plessy versus ferguson. Heres a little bit of what the Civil Rights Act did. It banned Racial Discrimination in hotels, restaurants and other public accommodations. It prohibited unequal application of Voter Registration requirements and prohibited segregation in schools and jobs. So the Legal Framework was there, but what was life really like for people in this country in the fifties and sixties even with these laws and Supreme Court decisions and acted . Well, from the time that place he was decided, and frankly even before plessy was decided in many respects, African Americans lived segregated lives in which they were treated as racial inferiors. When we think about the history in this country of slavery, i think we need to think about a continuum right on through jim crow up until the 19 fifties. Even beyond that, i think we have to talk about that it wasnt until 1964 that the Civil Rights Act was passed and employment discrimination was illegal. Discrimination in public accommodations is legal. Not until 65 to the Voting Rights act was passed. Not until 67 that the Supreme Court struck down laws the banned interracial marriages. It wasnt until 1968 after the assassination of Martin Luther king, and it wasnt until then that the Fair Housing Act was enacted. So for black people during this period of time, but also for other people of color, they lived with the rule of White Supremacy. If it wasnt explicitly articulated in all respects, it was the rule in most respects. It took until the Civil Rights Movement of the fifties and sixties for that to be changed. To be clear, even today wed still struggle with all of these issues even though we have made tremendous progress in the United States. The brown decision was massively resisted by the white south. Very Little School desegregation took place in the ten years after brown. The civil rights legislation that ted was referring to was incredibly impactful and its a function of the Civil Rights Movement. Brown did not segregate many schools until the federal government and the 1964 Civil Rights Act threatened to take dollars from schools the continued disaggregate the 1964 Civil Rights Act and the public accommodation was very effective. And was a collective action problem. A lot of southern owners of businesses who actually wanted to sell to black people, but they were worried that if they were the first to do so then they would lose all of their white customers. Black businessman who are in business to make money wanted to take the money of black people they were worried that their white customers would leave because they dont want to sit down at the table next to a black person. The federal government could solve that problem by telling everyone theres no first move, all of you have to do it at the same time. That was pretty effective. The Voting Rights act was incredibly effective. In mississippi, you go from fewer than 6 age eligible African American up to 60 in a few years for voting. The Supreme Court itself depends on other federal actors to enforce its decision so, these civil rights laws were incredibly important to the racial progress that was made. At the beginning of our program, you met keith plessy, a descendant of homer plessy. Hes on the phone with us right now is the descendant of judge ferguson. Her name is phoebe ferguson. Today, shes the executive director of the plessy and frank some foundation. And interesting coming together of two characters in our history. Phoebe ferguson, how long were you aware of your ancestors role in this important case . Was it something you grew up knowing about . Good evening. Actually no. We were unaware of our connection to judge ferguson. We only became aware of it around 2002 when a gentleman had bought his former home here in new orleans and wanted to restored to its original architecture. He found my number after ten years of looking apparently and said i bought your great great grandfathers house. You know, the judge in place abrams is ferguson. So, i happen to have a family tree that was given to me. I quickly looked at it and there was. That was the beginning. How did you go from that surprise revelation to meeting keith plessy . I began to research and look up things and quickly found that a book and recently been written by a local historian here. The book was entitled we as freemen, plus the versus ferguson, the fight against legal segregation. In that book, he had written an entire chapter about judge ferguson. That was very unusual. Of course, the book is about all the characters in detail. Who all the Citizens Committee members were. Who George Ferguson jon ferguson was. Who homer plessy was. When i called him, he fell off his chair. He had both of us now. He set up a surprise meeting. I came to new orleans, i was in new york at the time, i came to new orleans and met keep. I introduced myself and he introduced himself. As keith likes to tell the story, i just started apologizing not only for my ancestors role in the case but for slavery and pretty much all Racial Injustice thereafter. Keith just laughed and said its no longer place events ferguson, its plessy and ferguson. We pretty much been friends ever since. Whats the work that you do . We teach the history of the case and why it is still relevant in todays world. We go to schools and teach the case to young kids from second Grade University level. We have a date every year where we honor homer plessy. The day is the day he was arrested. As was the case with homer plessy, there was no marker to show what happened on that site and who the players were and how that story unfolded. Also, that new orleans was the cradle of civil rights wed like to think. We do not only on or homer plessy, but also the other Civil Rights Activist in the city of new orleans. Hopefully, we will continue. Thank you very much for being part of our program tonight. It is a nice coming together on this interesting chapter of American History i think its probably interesting for all of us to hear your story and to meet you by phone. Descendants of the original actors. We appreciate your time. Thank you for working to make the country a better place. The ferguson the plessy and Ferguson Foundation has a website. We have about seven minutes left in our program. I want to take some calls because we basically laid out the whole framework of this case. I want to hear what peoples questions are. Lets go to rachel from el paso. Hi rachel, you are on. Rachel . Hello . Yes, whats your question please . I have two questions. How did the passenger train how did the case of placing versus ferguson relate to brown v. Board of education . What the second one . How does brown v. Board of education relate to compromises in history and whats the significance of it today . Weve done a bit of talking about that, what if you could do a summation for the passenger train case in brown versus board for that student color. Weve talked about the relationship between policy and education. At the time, plessy was decided at the time plessy was decided, it was quickly extended to all areas of life in the south brown happened to be of course an education case. Brown did not explicitly overrule plessy in all respects. However, it did break the back of segregation that was required and upheld under law. There were a series of cases that were decided very quickly after brown by the court in a very summary fashion that struck down segregation in swimming pools and in other areas of public law life like libraries. That was very important the other thing that i believe is important to remember. My colleague talked about the 1964 Civil Rights Act, but there was more litigation to desegregate it was not until the Supreme Court decided in 1971 that desegregation a Public Schools in the south really happened. The case was brought forward by Julius Chambers and people should know who he was. I want to give a special thanks to the National Constitution center, our partners in the second edition of landmark cases. What advising us on the legal issues behind them. Also a reminder that we have tony murrows book of the landmark cases with brief summation one of each of them if you are following along with our 12 part series. You can find that on our website. Mattie is in new york. Whats your question . I want to know whether or not the protection under law meant Something Different in the 1890s as opposed to current time . Do you see a possibility that this doctrine is also under attack under considering the division in our country . Equal protection had a very specific meaning to the people who wrote the 14th amendment it meant literally that law had to be applied equally to people based on the way it was written. For example, if you had a law that forbade murder, you had to apply that law to protect African Americans who were killed in the same way that you would use it to protect white people who were killed. That is not the way that we have evolved the meaning of equal protection. Because that understanding is simply about the way a law is applied according to how it was written whereas we tend to think that there are constraints imposed by the equal protection clause on treating people differently within the internal meaning of the law. For example, you dont get to discriminate against women. You dont get to discriminate against asians are African Americans. That is the way we have understood it. However, they had a much narrower conception of what it meant. They were reacting to racial massacres in Southern States and the Southern States would do nothing to prosecute the murders of African Americans. That is what the equal protection clause was about, but it was a very narrow understanding we will put it on screen because we are writing out of time. The 14th amendment and the portion of it that was at the heart of the policy versus ferguson case. Lets listen to our last color, mike outside of philadelphia. Thank you. On the 14th amendment, i dont understand. The 13th amendment, the genius of it, is it allows for the the dilution of the bill of rights on the states. What i do not understand is how and why that was ignored for such a lengthy period of time. Until the 19 twenties or thirties i guess. I guess in retrospect, it seems like it should have been almost immediate. Was it the case that prejudice was so rapid among the judiciary that it took progressive judges to recognize the potential idea of incorporation . Let me tell you, we have a minute left. 30 seconds on that very big question. Youve hit upon these themes throughout the program, but it really sums up what this case was all about. Mikes question. How would you respond to him . Hes asking about a slightly different issue that we have been talking about. Hes talking about the question of whether the original bill of rights, which only applies to the federal government, is made applicable against the states by the 14th amendment. Historians have disagreed about whether that was one of the purposes of the 14th amendment. Justices have disagreed about that. Justice black and frankfort had a big disagreement in the 1940s and the court divided five to four on that question. Most modern historians think that the answer is yes. The people who wrote the 14th amendment did intended to take the bill of rights and make them applicable against the states, but that is something that only happened in the 1960s with the war in court. I dont see that as being the same sort of racism that led them to construe the equal protection clause to again. Its a different issue. The 14th amendment, by its own terms, applied against the state and should have banned Racial Discrimination. It did not for a long time for the reasons that you alluded to, the caller alluded to, and for other reasons. Ted shaw is at the university of North Carolina. He is the headfirst of a right there. An expert in the 14th amendment and civil rights law. Mike klarman teaches at harvard hes the author of the book from jim crow to civil rights, the struggle for racial equality hes a constitutional historian and legal scholar we thank both of you for being with us for 90 minutes to understand this 1896 case of plessy races ferguson. Thank you. Thank you. American history tv on cspan three. Exploring the people and events that tells the american story every weekend. Coming up this weekend, saturday at 8 pm eastern on lectures in history. 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