Well Justice Harlan is a very interesting character. There are numerous biographies of Justice Harlan and not everybody of course entirely agrees but I will take a step at—Justice Harlan grew up in a slaveholding family. He was from Kentucky. When the civil war broke out he cast his lot with the union. He cast his lot with the union and he in short order committed to the Republican Party, abandoned his former slavery views and became increasingly and outspoken advocate of abolishing slavery.
My sense is that part of the goals of Justice Harlan is a view that he should see through his commitment of that slavery was to be abolished and that forcing people to ride in separate cars was in the sense of kind of bulging slavery and that should be abolished along with the institution itself. But I think there's another factor that works here. Bear in mind that rail roads were come in carriers. They had special duties to the public. The common carrier has to carry every person it wishes to travel and pay the appropriate fare just so they have to ship every person’s goods who pay for the pretty appropriate rate. They can't decide to take this person and this person and leave these two people out, that’s not part of the duty. The common carrier must carry the public. Therefore, I think it was very easy for Harlan to come with the conclusion that this law really was violating the basic duties of the common carrier. They should carry everybody on an equal basis.
Later opinions of Harlan would raise perhaps some question whether he would have applied the same principle lets say to schools or to interracial marriage. One can only surmise what he would have done but if you look at some later opinions by Harlan’s it referred to commons versus Richmond County where he basically lets a Georgia County close down the high school for black students’ altogether and doesn’t see that as raising a problem. His opinion is not easy to decide for a people who have debated its meaning but clearly he didn’t take at avant guard view on that.
I think that today people or best about the Harlan descend is his impassioned call for a constitution, that the constitution doesn’t know classes or colors and who is citizens in the United States. Sadly of course, that’s no more the rule today perhaps than it was then. The Supreme Court has never adopted the view. No, they just rejected it really and this is from the direction cases, it just never adopted the view that the constitution must be colorblind in every setting. So Harlan’s view while very inspirational in one that many of this would probably have already a strong feelings about, wrong feelings about, he’s never actually carry the day.
I think one of the thought about Plessy and I think maybe interesting to bear in mind Plessy was not very controversial when it was decided. The New York Times famously reported the case under railroad news. Nobody had expected any different decision. The Supreme Court would have had a massive and personal problem on his hands if they have applied to condone the other way and in any event nobody ever thought they would decide the case differently.
So outside basically kind of the black press if you will there was very little protest, very little complaint. Plessy at that time just like a stone slipping into a pond and it’s gone. It did have the effect as you know because they should be affirmed with these statutes of then encouraging even more states to pass segregation statutes, so it didn’t have an effect. But it’s only fair to bear in mind that Plessy did not originate segregation. It was originated in some of the legislators but it did legitimize it and to that extend to encourage even more segregation statutes to be passed. I might add the many cases passed over the objection of railroad companies who fought these statutes and in part I mentioned to you because of the difficulty of assigning passengers. But also in part it was the expense involved. You got to put on separate facilities for your Black passengers but there were not many Black passengers so how can we put on all separate facilities for a relatively small number of Black passengers and have them in anyway be identical to what we offering to the White passengers.
It can be done economically, so now surprisingly, the railroad companies were not enthusiast for this lost. So in adding to the fact that both companies and their conductors were sometimes sued because often just by mistake it turns out White passengers were seated in a car with Black passengers and they were sued for sizable amounts of money for the indignation of having drive with Black passengers. You can imagine how thrilled they were with this as well.
I don’t think Plessy has any impact on ongoing legal thought whatsoever. I think it is now basically a historical interest. I do think it’s a great deal of interest to view it historically. Unfortunately it’s become kind of a bet in a war case and people just say disparaging one line comments about Plessy and they don’t really analyze it. I think Plessy is a variation case of how the Supreme Court inevitably is influenced by the dominant and their actual occurrence of its day and Plessy fit like a glove into the racial attitude of the 1890’s. Just as I—if we discuss Brown I think in some ways brown fits well into cultural were too racial attitudes. So I think that Plessy is a very interesting case and rewarding case to reflect on but I think it’s unfair to abuse the justices in one sense they didn’t create segregation and the truth is they really could not have eliminated that in the 1890’s.
In the 1850’s the judicial system in United States had some similarity to the present but it was also quite different. Let's talk about the federal court system. The Supreme Court was of course their highest court in the land and it was then as now appointed by a member who’s appointed by the president and confirmed by the senate. There had been a long domination on the White House from the time of Jackson forward of presidents who either from the south or were politically influenced by southerners very heavily. The Supreme Court was very much dominated by southerners.
I think at the time it has got five of the member of the Supreme Court came from the southern states and I think the majority went there. Part of the reason for the southern domination had to do because of the structure of the circuit courts and it’s very important we should focus on this for a minute. Each member of the Supreme Court was also required to perform circuit duties in their respective circuits. They didn’t see that being a Supreme Court justice is a fulltime job. So congress sent you out into the circuits to conduct basically trials in the circuit court. There the Supreme Court justice of that circuit would sit with the district judges from that circuit and they would form the circuit courts of the United States the principle trial courts of the United States.
There were other well known cases that actually were tried on circuit. John Marshal for example had the famous treason trials of Aaron Burr on the circuit as part of the circuit duties. Now, congress structured the circuits and the southern Balkan congress got five circuits out of the southern states. So the practice to all of these was to name a justice from each particular circuit so there it go southerners dominate the Supreme Court.
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