Race, Color Blindness, and the Democratic Public: Albion W. Tourgee's Radical Principles in Plessy v. Ferguson.

How much would it be worth to a young man entering upon the practice of law, to be regarded as a white man rather than a colored one? Six-sevenths of the population are white. Nineteen-twentieths of the property of the country is owned by white people. Ninety-nine hundredths of the business opportunities are in the control of white people. These propositions are rendered even more startling by the intensity of feeling which excludes the colored man from the friendship and companionship of the white man.... Under these conditions, is it possible to conclude that the reputation of being white is not property? Indeed, is it not the most valuable sort of property, being the master-key that unlocks the golden door of opportunity?

--Albion W. Tourgee, "Brief of Plaintiff in Error," Plessy v. Ferguson [emphasis in original]

HISTORIANS HAVE LONG REGARDED THE U.S. SUPREME COURT'S 1896 ruling in Plessy v. Ferguson as a landmark in American constitutional history. The Plessy suit also marked the last effort by surviving Radical Republicans of the Civil War generation to establish an interracial democratic public. At the time, the Court's upholding of Louisiana's so-called Separate Car Act seemed the final reconciliation of white supremacy with the Reconstruction amendments of the 1860s, amendments that had been designed to protect citizenship fights from racial discrimination. Yet the ideals that motivated the Plessy suit--those of an interracial democracy--lived on. The legal argument against segregation was persistently revived and refought by later civil fights activists, culminating in Brown v. the Board of Education (1954). Over the course of this process, both the legal rhetoric and the constitutional principles raised by the Plessy case went through many stages of transformation and reformulation, and they have continued to do so ever since.

The Plessy case introduced several enduring legal principles and metaphors into the constitutional discourse about race, civil rights, and models of the ideal democratic public. The flood of popular and scholarly literature that revisited the Plessy case on its centennial anniversary in 1996 demonstrated the continued relevance of its central issues and the lasting power of the rhetoric it employed.(1) Of all the arguments advanced in the case, the one that most greatly continues to inform public debate on racial discrimination remains the assertion of "color blindness" before the law. In his famous Plessy dissent, Justice John Marshall Harlan asserted, "There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."(2) Legal scholars continue to debate what Harlan meant by this and whether or not this statement was intended as constitutional doctrine. What is too often forgotten in these debates, however, is that Harlan borrowed the metaphor of "color blindness" from a legal brief submitted by Homer Plessy's lead counsel in the case, Albion W. Tourgee.(3)

Given the importance of the phrase "color blindness" and the complex arguments regarding it, there is a need to better understand its historical origins. Until now this concept has been examined mainly in terms of its enduring importance as legal doctrine; Harlan's dissent in Plessy has been the most influential use of the phrase for those who have deemed it a constitutional principle. Interestingly, however, Harlan seems never to have used it either before or afterward.(4) On the other hand, Albion W. Tourgee, who was lead attorney for Homer Plessy, first deployed the term in Plessy and had used it on several prior occasions on behalf of the struggle for civil rights. Indeed, Tourgee's first use of the legal metaphor of "color blindness" came decades before while serving as a Superior Court judge in North Carolina. One of the original Radical Republicans and an active participant in Reconstruction politics, Tourgee remained a controversial but respected voice within the Republican party from the 1860s until the McKinley administration. His writings provide an opportunity to explore the intellectual history of this still provocative phrase, and the story of the Plessy case sheds important light on the last gasp of Radical Republican ideals in the 1890s.

What would become the Plessy case began when a group of prominent black leaders in New Orleans organized a "Citizens' Committee" in September 1891 to challenge Louisiana's 1890 act intended "to promote the comfort of passengers" by requiring all state railway companies "to provide equal but separate accommodations for the white and colored races, by providing separate coaches or compartments" on their passenger trains. To assist them in their challenge, this group retained the legal services of "Judge Tourgee," as he was popularly known. Perhaps the nation's most outspoken white Radical on the "race question" in the late 1880s and 1890s, Tourgee had called for resistance to the Louisiana law in his widely read newspaper column, "A Bystander's Notes," which, though written for Chicago's Daily Inter Ocean, was syndicated in many newspapers across the country. Largely as a consequence of this column, "Judge Tourgee" had become well known in the black press for his bold denunciations of lynching, segregation, disfranchisement, white supremacy, and scientific racism, and he was the New Orleans Citizens' Committee's first choice to lead their legal challenge to the new Louisiana segregation law.(5)

From the outset, however, this group did not restrict their challenge to the courtroom. To supplement the case and to help publicize their cause, Tourgee established a civil rights organization, the National Citizens' Rights Association (NCRA), a group that foreshadowed the later National Association for the Advancement of Colored People (NAACP) in striking ways. Like the NAACP in the Brown era, Tourgee's organization followed a two-pronged strategy, attacking segregation through the judicial system and also through the mobilization of public opinion.(6) Tourgee and his clients viewed the Plessy case as nothing less than a referendum on the extent to which the Reconstruction amendments of the 1860s had transformed the fights of American citizenship. These amendments had attempted to overturn a powerful tradition of racially defined citizenship that had asserted itself both in social fact and in law throughout the antebellum era, and that had reached its legal pinnacle in the Supreme Court's 1857 Dred Scott ruling.(7) In that case, the Court had seemingly declared "whiteness" to be a prerequisite of American citizenship. In essence, the Plessy legal team sought to force the Supreme Court to reevaluate the relationship of race--both blackness and whiteness--to citizenship fights in light of the constitutional revolution that the Reconstruction amendments represented.

The wording of the Louisiana Separate Car Act made it an elusive target for abstract legal arguments about equal protection of the laws. By providing that the "separate coaches" for white and black passengers must be made substantially equal, it attempted to pay lip service to the requirements of the Fourteenth Amendment's equal protection clause. As Tourgee would argue before the Supreme Court, "The Statute itself is a skillful attempt to confuse and conceal its real purpose. It assumes impartiality. It fulminates apparently against white and black alike. Its real object is to keep negroes out of one car for the gratification of whites--not to keep whites out of another car for the comfort and satisfaction of the colored passenger."(8) Yet to support this claim within the confines of accepted constitutional law would prove difficult, especially before a Supreme Court not disposed to look beyond the letter of the law. To overcome the Court's reticence, Plessy's attorneys would need the justices to recognize the ideology that made whiteness a superior caste and endowed it with social benefits. As a result, the same legal brief in which Tourgee asserted that the law should be "color-blind" also made the seemingly incongruous suggestion that whiteness should be recognized by the law as a form of property. This article contends, however, that these two assertions were not mutually exclusive.

This article highlights the historical context of Plessy and examines the particular ideal of the democratic public that was rejected by the Court in its ruling on the Plessy case. To understand the unusual legal arguments presented on Plessy's behalf to the Supreme Court, it is essential to examine the larger historical context from which they derived. Scientific racism, the threat of labor unrest, and the demands of imperialism and of northern hegemony over the South had all joined together to frustrate the crusade for racial justice by the 1890s.(9) While these developments have been studied in detail by historians, there remains more to be said about the broader fate of the egalitarian ideals of Reconstruction. The scholarship that presents the Court's ruling in Plessy as if it were merely a statement of conventional wisdom seriously misrepresents the circumstances that surrounded it.(10) Although the Court's decision in the Plessy case represented an aggressive attack on the egalitarian ideals of Reconstruction, these ideals would tenaciously return, time and again, to assert their place among the core values of the American political system. And while this ideological conflict continues even today, this article focuses on the historical context of Plessy in order to reveal the logic and importance of Tourgee's arguments as he presented them in that case.

As the person who introduced the metaphor of "color blindness" into the Plessy case, Tourgee's position in the legal discourse on racial equality is important to understand. The argument that justice should be "color-blind" was a favorite phrase of his, one that he employed on more than one publicized instance. As a Superior Court judge in North Carolina, Tourgee was often called upon to explain the verdicts of his court to the conservative press. Southern whites vigilantly scrutinized every case with political implications that ended up before this northern Republican judge who had openly demanded the enforcement of strong measures against Ku Klux Klan activities. For instance, in one case that had been seized upon by the press as a sure test of his impartiality, Tourgee silenced his critics by sentencing three black men to a harsh prison term for committing acts of terror and intimidation in disguise against another black man--which ironically violated the Enforcement (or Ku Klux Klan) Act of 1871. In a letter to the Raleigh North Carolina Standard, Tourgee explained his belief in the principle that the law must be applied equally to all. "I prize my own self respect too highly to do otherwise," he wrote, "and believing, as I do, that justice should at least be `color-blind', I shall know no man by the hue of his skin.(11)

Tourgee repeated this phrase on subsequent occasions as well. Twice in relation to the Plessy case he used it to illustrate his argument regarding the injustice of racial segregation. When he announced the founding of his civil rights organization, the NCRA, in his weekly newspaper column of October 17, 1891, he explained that the organization's purpose would be to protect citizens against such laws as Louisiana's Separate Car Act. The NCRA's goal, he said, would be to ascertain "whether justice is still color-blind or National citizenship worth a rag for the defense of right."(12) Two years later he again deployed the term in a brief in error addressed to the Supreme Court in Plessy v. Ferguson, skillfully interweaving it with another classic metaphor of Anglo American jurisprudence. "Justice is pictured blind," he wrote, "and her daughter, the Law, ought at least to be colorblind."(13)

But the phrase "color-blind" was more than just a convenient figure of speech for Tourgee--it represented a principle. It expressed the spirit of equality before the law regardless of race or color. This principle, of course, did not originate with Tourgee. While the phrase itself was not popularized by the abolitionists, the ideal of a "color-blind" Constitution can be traced back to their movement in the 1830s. The abolitionists, most of whom were radical individualists, tended to minimize the importance of racial difference because they believed in the absolute moral autonomy of the self and emphasized the sanctity of individual conscience. Before his later repudiation of the Constitution as an irredeemably proslavery document, William Lloyd Garrison claimed in 1831 that "the Constitution of the United States knows nothing of white or black men," since its framers had studiously avoided any reference to race.(14)

In 1850 Charles Sumner introduced a "color-blind" argument in court in Roberts v. City of Boston, a case that challenged the racial segregation of Boston's public schools and gave early prominence to both the color-blind argument and the "separate but equal" doctrine. Sumner argued before the Massachusetts Supreme Court that because the state constitution, like the Declaration of Independence, declared that "all men are born free and equal," it guaranteed the equality of all citizens before the law, without regard to race. Since "the school is the little world in which the child is trained for the larger world of life," Sumner maintained that the state was under a legal obligation to ensure that its young citizens-in-training "should ... all meet, without distinction of color, in the school.... " However, Sumner's arguments failed to persuade the court; Massachusetts Chief Justice Lemuel Shaw rendered a separate-but-equal verdict that would later be cited as a precedent by the majority in the Plessy case, despite the fact that, in the interim, the Fourteenth Amendment had seemingly rendered the Roberts decision obsolete.(15)

Tourgee was very likely aware of Wendell Phillips's campaign for a color-blind version of the Fourteenth Amendment. Phillips proposed an amendment to the Thirty-ninth Congress that would have included a phrase prohibiting any state from making "any distinction in civil rights" based on "race, color, or descent." From the summer of 1865 through the spring of 1866, the text of Phillips's proposed amendment was published at the head of the National Anti-Slavery Standard's editorial column, a journal that Tourgee read avidly at that time. In the end, Phillips's language was discarded by Congress for fear that the application of the words "any distinction" seemed too broad and its applications too radical. In order to pass the amendment, legislators settled on the more ambiguous, universalist language of "equal protection of the laws," which lent itself to greater interpretive flexibility and avoided any direct reference to race.(16)

Finally, Tourgee was influenced by arguments that the Thirteenth and Fourteenth Amendments created "affirmative rights" that were protected by the federal government. This contention became increasingly prominent after the Supreme Court began to erode the scope of the Reconstruction amendments in a series of decisions that culminated in the Civil Rights Cases of 1883. This decision, which struck down the Civil Rights Act of 1875, sparked a storm of protest. Robert G. Ingersoll, the noted lawyer and orator, joined with Frederick Douglass and others at a mass meeting in Washington, D.C., on October 22, 1883, to denounce the decision. In his widely reprinted speech, Ingersoll offered a point-by-point rebuttal of the Court's majority opinion that presaged some of the arguments Tourgee would later make in Plessy. Most notably, Ingersoll insisted that the Court's restricted interpretation of the Reconstruction amendments had "undervalued the accomplishments of the war" by failing to recognize that the old distinction between state and federal citizenship, which had previously given primacy to the former, had been eradicated. Ingersoll proclaimed:

In construing the Thirteenth, Fourteenth and Fifteenth Amendments the court need not go back to decisions rendered in the days of slavery--in the days when narrow and constrained construction was the rule, in favor of State sovereignty and the rights of the master. These amendments utterly obliterated all such decisions.... The Supreme Court should begin with the amendments. It need not look behind them.... They laid a new foundation for a new nation.

In addition, Ingersoll interpreted the Thirteenth Amendment very broadly. He suggested, in fact, that this amendment inscribed a rule of "color blindness" into the Constitution. The amendment, he said, abolished not only slavery, but every "badge and brand and stain and mark of slavery." Having done away with "all distinctions on account of race or color," Ingersoll concluded that "[f]rom the moment of the adoption of the Thirteenth Amendment the law became color blind."(17) Tourgee's later arguments in Plessy would echo Ingersoll's acclaimed speech in both the rule of "color-blindness" and the interpretation of national citizenship.

It is important to situate Tourgee's democratic ideals within both the abolitionist tradition of racial equality as well as the Radical Republican tradition of federal sovereignty over the states. All of the pivotal events of Tourgee's life were associated with the crusade against slavery and its aftermath in the Reconstruction period. Tourgee was born and raised in the Western Reserve of Ohio, a region renowned for its antislavery fervor in the 1850s. There, and later at Rochester University (in the heart of New York's "Burned-Over District"), he absorbed the moral individualism that characterized abolitionism as well as other utopian movements that erupted in those regions.(18) Soon after Lincoln's first call for troops in April 1861, Tourgee, predicting the destruction of slavery, enthusiastically joined the Union army and saw action at the First Battle of Bull Run. His direct contact with southern life during the war sparked his interest in the challenge of postwar Reconstruction, and so he moved his family to North Carolina after Appomattox, where he remained from 1865 until 1879. He served as a justice of the state Superior Court from 1868 to 1874, a position where his outspoken views on racial equality, combined with his relentless efforts to expose members of the Ku Klux Klan, gained him the enmity of his white Democratic neighbors. However, the articulate and principled Tourgee also managed to garner a significant amount of respect among the legal community of the state, though he was never able to escape the stigma of being a Republican "carpetbagger."(19)

After returning to the North in 1879, Tourgee published A Fool's Errand, an autobiographical novel based on his experiences in the South; he quickly became a celebrity when the novel unexpectedly became a national best-seller. Though it was less sentimental in its tone, A Fool's Errand was widely compared to Uncle Tom's Cabin for its sympathetic dramatization of the plight of southern blacks and its echoes of abolitionist morality. It vividly depicted white southerners' campaigns of violence and intimidation and also levelled bitter criticism at the Republican administration for failing to adequately protect its citizens' rights in the South. The novel concluded with an explicit political message, advocating a plan for massive federal aid for the education of both poor blacks and whites.(20)

The popularity of A Fool's Errand suggests that many northern reformers were still susceptible to the moral appeal, largely derived from abolitionism, that had been at the heart of Reconstruction, and its political message struck a chord with many Republicans in 1879-1880. The Republican Party had begun to fragment over the direction of Reconstruction in the late 1860s, and during the 1870s the panacea of education appealed to Radicals and black leaders who embraced the promise of cultural uplift. While one wing of the party promoted a federally subsidized educational program that would push Reconstruction forward to what one recent scholar called "the next level of intensity," their hopes for a new phase of Reconstruction were to be disappointed.(21)

During his presidential campaign and tragically brief term, James A. Garfield solicited extensive advice from Tourgee, whom he considered a leading Republican authority on southern affairs, and asked him to undertake an investigation of southern race relations. The eventual result was a full-length study, An Appeal to Caesar (1884), which historian George M. Fredrickson has called "the most profound discussion of the American racial situation to appear in the 1880s." In it, Tourgee elaborated his ideas for an educational program designed to reduce racial prejudice and absorb poor whites and blacks into the American political community. But Garfield's assassination in 1881 deprived the incipient biracial education program of an effective advocate in the White House.(22)

Some have suggested that the desire among members of the northern middle class to provide national aid to education derived from a nativist impulse to homogenize the nation by assimilating blacks and immigrants into Protestant American culture.(23) Indeed, "social uplift," as most liberals understood it, was part of a process of bringing the lower classes and "backward" peoples into the fold of "civilization." This missionary attitude often carded with it a strong intolerance for cultural difference. Ralph Waldo Emerson most strikingly demonstrated this kind of bigotry when he said, "The way to wash the negro white is to educate him in the white man's useful & fine Arts, & his ethics."(24)

Tourgee's ideal of an interracial democratic public was infused with the rhetoric of uplift, but his standard of assimilation was far less holistic than that of liberals like Emerson. For Tourgee, educational uplift required the adoption of basic liberal democratic values, including literacy, political rights, and the promise of upward social mobility. In other areas, he seemed less concerned with cultural differences. In an essay written for the blacks of New Orleans during his litigation of the Plessy case, he wrote:

There is no reason why the Negro should not be as secure in his individual rights in the United States as a Jew. It is not at all a question of social relation, in the sense of an enforced individual intercourse. It is quite possible[,] as our life shows, for varying social currents to co-exist without any infraction on the rights of either ... in all sects, in all trades and professions, such foreign-born or alien-descended citizens stand on equal terms with all the others [in America]. It is only when a trace of color shows in the epidermis that the citizen is distinguished against as a political factor; the Christian ... required to worship in separate church edifice; the laborer refused equal opportunity; the man denied protection for his life, and the woman shorn of legal redress for violated virtue.(25)

Tourgee's more pluralist attitude, which dispensed with Emerson's desire to "wash the Negro white," was derived in large part from his firsthand experiences with southern blacks during his years in North Carolina.

By the 1880s Tourgee had spent twenty years witnessing racial injustice up close. Having presided over courts in which all-white juries refused to convict other whites of Ku Klux Klan violence, he knew all too well the obstacles to finding a legal remedy for racial injustice. In his novel Bricks Without Straw (1880)--the sequel to A Fool's Errand--Tourgee used the metaphor of "color blindness" differently than he would later in the Plessy case. Writing about the plight of ex-slaves during Reconstruction, he mused that, "regarded from a legal standpoint," they were "indeed [in] a strange position...." Freedmen's rights, he wrote, were protected only "in the abstract"--whereas "in the concrete" they had none. "Justice would not hear [their] voice," he concluded. "The law was still color-blinded by the past."(26) In this instance, Tourgee used the color-blind metaphor to mean blind by color rather than blind to color, thus demonstrating that color blindness could be a double-edged sword. More important, however, was his suggestion that the ultimate test of the effectiveness of law should be whether it provides redress for citizens under "concrete" circumstances, rather than simply the hollow promise of justice "in the abstract."

Tourgee demonstrated a pragmatic awareness that racial equality must be tested in the results of the law, not merely in its rhetoric. In the same vein, in fact, he made an interesting observation in 1893 during his preparation for the Plessy case. Having researched the past litigation of civil rights, he had discovered the "curious dread" of the "old abolitionists" to "any legislation respecting color or race," which led him to conclude that "the struggle for the expurgation of `white' as a restrictive term in our law had given them a strange horror of `colored' as an enabling description."(27) Whether or not he was entirely correct in this assessment of the abolitionists, Tourgee himself never displayed such qualms about considering race as a "concrete" fact--for better or worse--of American life. As a result of this legal pragmatism, he never supported claims that race need not be taken into account in attempts to bring about racial justice.

Most revealing on this issue was his adamant opposition to the Blair Bill in 1890. Named for its sponsor, New Hampshire Senator Henry W. Blair, the bill was the most promising effort of the long struggle to provide federal aid to education in the South. As early as 1870 Republicans had begun to call for federally funded public schools in the South, and some leading Republicans, including Charles Sumner, insisted that these schools should be racially integrated. The race-baiting cry of "miscegenation" by opposing Democrats, however, tarnished the Republican program almost beyond repair and forced Republicans to accept, at a minimum, segregated public schools. In 1890 Senator Blair presented an education bill to Congress that sought to deliver on the long-standing desire to assist southern schools with federal funds. However, although Tourgee had long been one of the most prominent spokesmen for national aid to education, he personally testified before a congressional committee against Blair's proposal. In Tourgee's view, the Blair Bill, which made no mention of race, had been purposefully designed so that even in the very best scenario "the colored schools of the South would receive one-third and white schools two thirds of the fund, though the colored schools represent two-thirds of the illiteracy." Instead, Tourgee promoted his own measure before the committee, proposing a law that expressly provided money for "colored" schools that would be distributed directly by the federal government, thus bypassing state bureaucracies. For Tourgee, contextualist that he was, a racial classification in legislation attempting to redress social wrongs did not contradict the notion of a "color-blind" legal system.(28)

Tourgee's "road to Plessy" began in April 1888 when he started publishing "A Bystander's Notes," a column on the editorial page of the Chicago Daily Inter Ocean. Even though he had declared as recently as 1885 that he had "done my last work and written my last word" upon the subject of race, this new forum brought him a diverse readership and the opportunity to reach a broad audience, which quickly enticed him back into the public debate on the "Race Problem."(29) The Inter Ocean, which was the leading Republican Party newspaper in Chicago, hoped Tourgee's brand of fearless social commentary would bring the paper notoriety of the kind that Henry Demarest Lloyd's editorials had garnered for the Chicago Tribune for many years. Though it considered itself "primarily and always a radical republican newspaper" with "a reputation for extreme friendliness toward the colored race," the paper's radicalism had limits. Its motto--"Republican in everything, independent in nothing"--was taken seriously, and William Penn Nixon, its chief editor, would find himself in constant battles with Tourgee to prevent him from embarrassing the paper with harsh criticisms of the Republican Party's failures toward southern blacks.(30)

Tourgee was convinced that a large portion of the Republican Party's following was still committed to the egalitarian ideals of Reconstruction, but he had begun to perceive a great silencing of public debate on racial and southern issues. In the presidential campaign of 1888, Tourgee implored G.O.P. candidate Benjamin Harrison to undertake a full-scale speaking campaign in the South to promote the cause of free speech and democracy and to regain the confidence of southern black voters.(31) Tourgee insisted that the subversion of the democratic process in the South through fraud and ballot box intimidation must not go unchallenged. However, when the Republican Party calculated that it could win the election without wasting its resources on a campaign in the "Solid South," Tourgee was appalled. He complained to a friend that "[j]ustice is to a large degree dormant in the [ears?] of the American people, simply because the Republican Party have accepted the idea that greed is the strongest motive that can be appealed to." Echoing the judgment of many, he concluded, "They no longer say `this is the party of liberty and justice'; but, `this is the party of self and profit.'"(32) For him, the moral message of the founding generation of antislavery Republicans had disappeared from the party's political agenda--but he intended to use his column to restore it.

Soon after Harrison's election, Tourgee began writing exposes in his column about violence and discrimination against southern blacks. He began by reporting on the suppression of a "Negro insurrection" in Kemper County, Mississippi. Having received his information from sources in the black press, he was amazed at the lack of details forthcoming from the local authorities regarding the incident, as well as the inattention of the mainstream northern press. According to his informants, the so-called rebels were a quiet farming community of law-abiding citizens who had been raided in the wake of a minor act of "impudence" on a street comer. It was, he wrote, "the same sickening tale of murder of those who dared resist unlawful violence; the same hunting of the refugees in the swamps and hills as if they were wild beasts [and] the same care to prevent a true version of the facts from reaching the northern press." He reported in boldface type, "ALL THE NEGROES KILLED OWNED LITTLE FARMS."(33) Such violence would be the fate of all enterprising southern blacks, he warned, if they were abandoned completely by the Republican Party.

More such exposes followed, all intended to rally support for beleaguered southern blacks. Tourgee henceforth used his column largely to publicize and condemn white supremacist violence in both the North and the South. After an outbreak of lynchings by a group of Ohio vigilantes calling themselves the "White Caps," he warned the public that "[a]n organized body of lynchers is the most dangerous development that can occur in a self-governing community." What particularly offended Tourgee about the lynchings was the tolerance of the violence by officials like Governor Joseph B. Foraker, who publicly defended the lynch-mob justice. "To all intents and purposes," Tourgee coolly asserted, "the Governor of Ohio might just as well be a member of the gang himself. He has hopelessly embarrassed the administration of justice in the state."(34)

Over the next several years, responses to his column came to Tourgee from all over the country, especially from the South and West, where the Inter Ocean reached a large public.(35) White supporters--many of whom were Union Army veterans--praised him for remaining true to the ideals of Lincoln. One man, echoing the sentiments found in many letters, agreed that "if the general government cannot stretch forth its strong arm and protect its citizens where the state refused, then as well had Calhoun's doctrine triumphed" in the Civil War. On the other hand, some northern newspapers, like the Chicago Times, called on "decent" citizens to lynch Tourgee or otherwise silence him. White southern journals and newspapers despised Tourgee, typically referring to him as a "literary cut-throat," a "demagogue," a "coward," and an "educated villain" who "weekly slandered the South." Joel Chandler Harris, author of the "Uncle Remus" tales, went so far as to question his former acquaintance's sanity, asking, "[W]hat shall we say of such a man? Is he a monomaniac, or simply a refugee from his race?"(36)

Southern blacks, on the other hand, wrote hundreds of letters to Tourgee detailing incidents of oppression and expressing unvanquished hope for deliverance. Although these letters were sometimes barely legible because of poor writing skills, reading them must have left Tourgee with no illusions about the dangers that impoverished blacks--who had no voice in mainstream northern newspapers--were facing in the South. A letter signed by two women of Wayne County, Mississippi, reported that "we cannot live here much longer.... [T]he white people of this county ... beat a young man nearly to death this week.... [T]he men have to pay too dollor Poll Tax and them that cannot write cannot vote." Some correspondents wrote in a state of immediate danger, imploring Tourgee for help. One letter stated, "I hav ben in Prison ever since 21 of June for represntin your work.... [T]he Dimocrat beat me and curs you and I want you to get me out of this fix." Another letter asked for help of a more subversive kind: "Wee the friends of liberty have concluded to [inform] you of the fact that wee are needing ... aid such as sending us arms.... [W]ee are amongst our enemies the only way for us to protect our leaving [?] is for you to send us arms." Confident that Tourgee would deliver, the author added the postscript, "Dont certify what is in the box. Just say hard ware."(37)

Such letters kept Tourgee acutely aware of the growing racial crisis in the South. He may have tended to overestimate the social conscience of the northern public; as he later told his colleagues in the Plessy case, "There are millions of white people of the United States who believe in justice and equal right[s] for the colored man." Tourgee steadfastly believed that the old, antislavery conscience of the North would stir yet again if only the facts could be kept before the public. Thus he put the information he discovered to immediate use by reporting the shocking crimes against black people in any way he could. In one instance, he received a photograph of a black corpse hanging from a noose, in front of which white children cheerfully posed for the camera. On the back of it, the lynchers had boasted that "This S-O-B was hung at Clanton Ala. Friday Aug. 21 [18191 for murdering a little white boy in cold blood.... He is a good specimen of your `Black Christians--hung by White Heathens'." Tourgee promptly passed the picture on to Ida B. Wells, who subsequently used it to great effect on her 1894 speaking tour of Great Britain to publicize the horrors of lynching.(38) Tourgee himself declined an invitation from British activists to take his case to England because he continued to believe that "silent sympathizers" in America should receive his attention. They merely needed to be properly informed of the facts, shaken from their quietism, and pointed to their public duty.(39)

Despite the hopes of die-hard Radicals like Tourgee, the collective conscience of northern liberals, in the main, no longer compelled them to demand government intervention on behalf of southern blacks. In June 1890 an important meeting of distinguished white liberals to discuss the "future" of American blacks underscored this reality. The First Mohonk Conference on the Negro Question was held for whites only in upstate New York, and it attracted such distinguished attendees as minister Lyman Abbott, former U.S. President Rutherford B. Hayes, and the former head of the Freedmen's Bureau, General O. O. Howard. These leaders came to endorse the segregationist, self-help rhetoric that was gaining the support of many black leaders, and most topics therefore centered on vocational training, moral improvement, and strengthening the black family. Several commentators seemed ready to proclaim that there was no "race problem" anymore.(40)

Since blacks were forbidden to speak for themselves at the meeting, Tourgee protested their exclusion and entitled his lecture "The Negro's View of the Race Problem." He told the audience that their knowledge of blacks was based on a mixture of misinformation and false suppositions. Whites' primary and oft-repeated fallacy, he said, was that black poverty resulted from "racial qualities, and not fortuitous, resulting conditions." In response to the tenor of the meeting, he remarked, "I am inclined to think that the only education required is that of the white race." He excoriated those who viewed the race problem as a matter of charity and thus assuaged their own consciences by donating sums of money for industrial schools. He told philanthropists that "we congratulate ourselves on what we have contributed to his mental and religious development but forget that for every dollar we have given ... he had before given a thousand to our enrichment [under slavery]." He reminded the audience of the fourteen years in North Carolina during which he had observed firsthand the experiences of ex-slaves and even employed "hundreds" of blacks himself. Reminding his audience of the immense challenges facing those once held in slavery, he insisted:

[After] constant study of their conditions since emancipation, I do not hesitate to say that the colored people of the South have accomplished more in twenty-five years, from an industrial point of view, than any people on the face of the earth ever before achieved under anything like such unfavorable conditions.

Tourgee concluded by explaining that blacks were not especially in need of philanthropy from whites, but only pure and simple justice. Ex-President Hayes recorded the tremendous impact of Tourgee's speech at the Mohonk Conference, noting in his personal journal, "[Tourgee] is an orator--pungent, dramatic, original, and daring."(41)

When the Louisiana Separate Car Act became law in 1890, mandating that railroad lines maintain "equal but separate" facilities for the two races, Tourgee's column promptly denounced it. He advised Louisiana blacks to challenge the constitutionality of such laws immediately, making the impractical suggestion that they refuse to submit to social exclusion by purchasing homes in white neighborhoods and attending white churches. Louis A. Martinet, the militant editor of the African American newspaper, the New Orleans Crusader, and an avid reader of "A Bystander's Notes," appreciated Tourgee's stance and began a correspondence with him, soliciting advice about bringing a test case against the law. Martinet and his associates had already fought a losing battle to defeat the Separate Car Bill in the Louisiana legislature. He and a number of the most prominent black leaders of the city organized a "Citizens' Committee to Test the Constitutionality of the Separate Car Law," which raised $1,412.70 to hire a legal team.(42)

After consulting with the members of his organization, Martinet wrote to Tourgee on October 5, 1891, offering him the committee's entire fund to serve as "lead counsel in the case from beginning to end" with "power to choose associates." Despite the fact that he was heavily in debt and had been since 1884, Tourgee agreed to take the case without remuneration. The fund was used instead to hire a white criminal lawyer, James C. Walker of New Orleans, who would handle the details of implementing the suit since Tourgee himself would have to oversee the case from his home in Mayville, New York. Over the next two years Tourgee, Martinet, and Walker developed every detail of strategy and argument of the case through long-distance correspondence. At the last stages of the case, Samuel F. Phillips, who had represented the United States in the Civil Rights Cases and had been a close "scalawag" ally of Tourgee's during his years in North Carolina, joined the team to oversee matters in Washington, D.C.(43)

Some scholars have criticized Homer Plessy's attorneys for failing to challenge the actual unequal condition of accommodations on Louisiana railroad cars.(44) Tourgee did in fact argue before the court that the law's requirement of "substantial equality of accommodation" had not been enforced on the railroad cars. However, whether or not accommodations were qualitatively "equal" was irrelevant to their constitutional challenge to segregation. "The gist of our case," Tourgee insisted, "is the unconstitutionality of the assortment: not the question of equal accommodation."(45) The Separate Car Act itself deemed that the accommodations must be "equal," and indeed its principle of "equal but separate" (or "separate but equal") as upheld by the Court would be remembered as the constitutional basis of segregation.

One of the team's most important decisions in framing the case had do to with choosing a light-skinned defendant, a strategy that Tourgee had insisted upon from the very start. He had originally suggested to Martinet that a "nearly white" woman would make a good choice but was advised that in New Orleans no such lady would be refused admission to the whites' railroad car.(46) Martinet informed him that "people of tolerably fair complexion, even if unmistakenly colored, enjoy here [in New Orleans] a large degree of immunity from the accursed [race] prejudice" that afflicted darker-skinned blacks. Nevertheless, on March 11, 1892, he instructed that the committee choose a male defendant who had "not more than one-eighth colored blood" and would be able to pass as white. By employing a defendant of mixed race, Tourgee hoped to exploit a number of gray areas in Louisiana law regarding the definition of race. He added dryly, "[I]t is a question [the Supreme Court] may as well take up, if for nothing else, to let the court sharpen its wits on."(47)

Tourgee's clients in New Orleans voiced no objection to his instructions regarding the race of the defendant. Indeed, the Citizens' Committee themselves represented the Creole elite of New Orleans-descendants of the free black population of the state rather than the slave population--who had long enjoyed a privileged social status. In fact, some conflicts existed between the Citizens' Committee and the black population. Martinet reported to Tourgee that at least one black preacher had charged the Citizens' Committee with representing only the interests of those who "were nearly white, or wanted to pass for white." Martinet adamantly dismissed this assertion as "a lot of nonsense."(48)

Nevertheless, it remains possible that Tourgee's strategic choice of employing a light-skinned defendant had a different meaning for some of the New Orleans population than it did for himself or his legal team. Some blacks, it seems, may have interpreted the lawsuit as an attempt to protect the traditionally privileged status of "mulattos" as distinct from darker-skinned blacks.

Initially, Rodolphe Desdunes, a leader of the Citizens' Committee, persuaded his son Daniel to act as the defendant because he fit Tourgee's description of not being discernibly "colored." The Daniel Desdunes suit, however, was foiled after months of hard work when the case was won on a technicality. The case began again in June 1892 with a new defendant, Homer A. Plessy, a friend of Rodolphe Desdunes, who was also to all appearances white. With the help of a "friendly" judge named John Howard Ferguson, a Massachusetts native who had been appointed as a federal judge during Reconstruction, the Plessy case proceeded expeditiously through the Louisiana courts. Plessy's appeal of Judge Ferguson's ruling upholding the Lousiana law was moved to the docket of the U.S. Supreme Court in January 1893.(49)

While the case proceeded through the court system, its advocates also launched a publicity campaign to rally public sentiment in their favor. Tourgee and Martinet had previously agreed that an adjoining "national organization" should be founded and that it should make no specific reference to "the color or race line."(50) Christened the National Citizens Rights Association (NCRA) as a result, the organization's purpose was to collect and publicize violations of civil rights of all citizens, black or white, and to use the courts to strike down oppressive laws like the Louisiana Separate Car Act. Tourgee proclaimed that his goal was to enlist one million members (membership was free) and to use the organization to pressure legislatures and political parties.(51)

The NCRA's principles and objectives were outlined in a thirty-two-page pamphlet entitled Is Liberty Worth Preserving? In it, Tourgee stated unambiguously that race prejudice--not racial inferiority--was the true cause of black economic inequality. He declared that "[t]he ignorance and poverty of the colored race are neither the result of ethnic qualities nor of individual inclination on their part but are the ineradicable evidence of the reckless greed, injustice, and neglect of the duty of the white race in the past." He went on to predict that if the oppression of southern blacks was not remedied, America would experience a "race war" of "inconceivable horror." He painted a vivid picture of destruction as divine judgment. "It may spring from resentfulness at the `Jim Crow Car'; it may result from lynching a man who defends his wife's honor," he warned, "cities may be burned, railroads destroyed, and civilization in all its forms be forced to do penance for injustice and oppression...."(52) The Daily Inter Ocean reluctantly agreed to print 25,000 copies of the pamphlet, but its editor, W. P. Nixon, informed Tourgee that the NCRA could not count on any more support from his paper. Nixon also warned him not to use "A Bystander's Notes" as the mouthpiece for his organization.(53)

Tourgee still held out hope that the NCRA could play a role in keeping "equal rights" on the main agenda of the Republican Party. Privately, he understood his party's tenuous commitment to its black constituency and even feared that the Republican Party may "come out a `White Man's Party'" at their upcoming 1892 national convention. Using the NCRA, Tourgee hoped to prevent this. "A million names on our roll will command the attention of every phase of the world's thought," he announced to potential members. "It will show the colored citizen that he is not to be abandoned," he asserted. "It will show the dominant class of the South that the sentiment of liberty, justice and equality of opportunity is not a mere evanescent whim on the part of the northern people." Though his expectations for enrollment may have been unrealistic, the initial response to the NCRA was still impressive, with roughly 20,000 people enlisted by the end of 1891. The favorable response indicated to Tourgee that at least "a very large minority" of northerners still "believe in justice and equal rights without regard to race or color."(54)

As the hearing of the case before the U.S. Supreme Court approached, Tourgee began to consider the possible consequences of a defeat in Plessy. The court's history of pro-southern politics and its record of limiting the scope of the Reconstruction amendments did not bode well. "It is of the utmost consequence that we should not have a decision against us," he warned his colleagues, because "it is a matter of boast with the court that it has never reversed itself on a constitutional question." An analysis of the political and judicial orientation of the eight current members of the Court left no margin for error. Tourgee counted only one justice, Harlan, who was likely to be favorably disposed to their case, while four justices were unfavorable to their cause and "will probably stay where they are until Gabriel blows his horn." Of the remaining three votes, he believed one inclined toward them "legally" but not "politically," and two others "may be brought over by [our] argument." Thus, the best he could imagine was a five-to-four majority--and that would depend on the impending appointment of a favorable justice to break the tie.(55)

In the fall of 1893 Tourgee began to implement delaying tactics, postponing the hearing of the case until public opinion could be further mobilized. "The court has always been the foe of liberty until forced to move on by public opinion," he wrote. Desperately hoping that the NCRA would arouse enough public pressure to influence the Court, he predicted, "If we can wipe out the indifference of the white people of the North upon this subject, there is a chance that the Supreme Court ... when moved by the awakened and potent conscience of the people, may grant its edict against caste."(56) It was perhaps characteristic of his commitment to the democratic process that he seemed to put as much stock in persuading the public as in persuading the Court. But even Tourgee grew increasingly pessimistic. At one point he suggested dropping the case altogether but was urged to press on by his New Orleans clients. As Rodolphe Desdunes later explained their attitude at the time, "We think that it is more noble and dignified to fight, no matter what, than to show a passive attitude of resignation."(57) Unfortunately, the climate of public opinion changed little--and not for the better--before the oral arguments were finally presented in Washington, D.C., in April 1896.

During the time the Plessy case was intentionally delayed, the NCRA had become almost defunct. Tourgee had always seemed unsure of how best to lead the movement. Having enlisted over 100,000 members by the summer of 1892, the NCRA seemingly had considerable momentum behind it. But the organization suffered from its spontaneous conception and lack of planning. In fact, it was run entirely out of Tourgee's home, with his wife and daughter keeping the records of membership and answering most of the correspondence. Rationalizing that he had protected its grassroots origins, he told one correspondent, "I am always doubtful about building from the top down. Thus far this is purely a people's movement. There has been no particle of personal or partisan influence." But Tourgee's commitments were too many, and his resources too few, to provide the direction the fledgling organization needed. Part of his grand strategy was to establish a major civil rights journal to be called the National Citizen, which would provide focus and a sense of permanence for the NCRA. However, this plan met numerous obstacles, one of which was Tourgee's own reluctance to relinquish control of the project or compromise with his vision of its mission? In the meantime, the NCRA remained little more than a list of names, enhanced by the prestige of distinguished members like George Washington Cable, T. Thomas Fortune, and Charles W. Chesnutt.

While it had gained a devoted following, especially among southern blacks, the NCRA encountered a lack of enthusiasm from middle-class black leaders in the North, many of whom had begun to distance themselves from the rhetoric of Reconstruction. For example, the Philadelphia Times, a conservative white newspaper, gleefully reported the reluctance of local black leaders with the headline: "WON'T INDORSE TOURGEE: LEADING COLORED MEN REGARD HIM AS AN ALARMIST." In the article, a wealthy black ex-abolitionist, Robert Purvis, was reported to have belittled the NCRA's denunciation of lynching. "Judge Tourgee does not voice the sense of the thinking colored people of the South ...," Purvis reportedly said. "[T]hese lynchings that he refers to have been almost without exception visited upon colored men who have outraged white women.... Death, and death alone appears to be the one punishment that will discourage this crime."(59) Even Frederick Douglass, then in the final years of his life, failed to support the NCRA's challenge to segregation. Douglass infuriated the New Orleans circle by writing a chastising letter to the Citizens' Committee expressing his disapproval of their activities. According to Louis A. Martinet, Douglass refused to contribute even a small donation to the group, stating that he "saw no good in [their] undertaking."(n60) In the face of such opposition, the prospects for failure of the NCRA were high indeed.

Tourgee grew increasingly frustrated and confused over the situation. He desperately implored one African American confidante, a Philadelphia woman named Florence A. Lewis, to explain the lack of response of northern black leaders:

The white people of the North respond by thousands and scores of thousands. The colored people of the South send me their piteous tear-stained appeals for aid. The colored people of the North remain indifferent, unresponsive--doing nothing.... The NCRA has for its roll ten white names for every one colored. What does it mean?(61)

Though no explanation was forthcoming for the lukewarm reaction of northern black leaders, a few suggest themselves. In truth, Tourgee had not gone out of his way to establish the trust and support of black leaders who were not already acquainted with him or his work. One ally, Thomas W. Griffin, informed Tourgee of complaints that he had not "consulted or invited" other blacks before launching the organization, leaving the impression that Tourgee did not want their help.(62)

Moreover, conflicts already existed between the New Orleans Creole elite and black leaders of the North. Louis A. Martinet had previously headed a racially integrated national organization called the Citizens Equal Rights League, which had been formed in opposition to T. Thomas Fortune's blacks-only Afro-American League, and the NCRA was probably viewed by some as a successor to Martinet's organization. Finally, in a larger sense, the lack of enthusiasm reflected a growing chasm between middle-class northern blacks and impoverished southern blacks that characterized northern "black politics" of the 1890s. Seen in this light, Tourgee's increasingly anti-capitalist tone in novels such as Murvale Eastman: Christian Socialist, as well as his outspokenness on labor issues in "A Bystander's Notes," could have served only to further alarm middle-class blacks.(63)

By the time oral arguments were presented before the Supreme Court in April 1896, a new era in race relations had taken root. In the face of the Populist challenge in the South and the West, the Republican Party had further muted its stance on the "race problem." Frederick Douglass died early in 1895, soon to be replaced as the symbolic leader of black America by Booker T. Washington, whose address to the Atlanta Exposition in September of that year gave a pragmatic endorsement to segregation. Washington proclaimed that "the wisest among my race understand that agitation of questions of social equality is the extremist folly."(64) Indeed, when Tourgee arrived in the nation's capital for oral arguments before the Court, the Washington Post reported the prevailing sentiment in town--that it would be "another fool's errand" for him.(65) The winds of public pressure that Tourgee hoped would influence the Court, if anything, seemed to be blowing in the wrong direction.

Tourgee's legal brief to the Supreme Court in the Plessy case is an extraordinary document, one that requires the utmost care in explication. Despite its moments of rhetorical brilliance and incisive logic, it is seemingly marred by internal contradictions. This is partly the consequence of Tourgee's multifaceted legal strategy and the exigencies of trying to convince a hostile Court of its constitutional imperative to strike down the Separate Car Act. As a lawyer trying to win a case, he sought to use every favorable argument at his disposal. As Tourgee put it to his co-counsel James Walker, "It is better to have too many points ... than not enough."(66) Though a draft of Tourgee's oral argument survives, there is no court transcript of the actual presentation that he made before the eight justices who heard arguments in the case. This is an unfortunate loss indeed, because it would further illuminate how the justices responded to Tourgee's individual points and also how he defended his arguments before the court's interrogation.(67)

By the time of the Plessy case, a series of Supreme Court decisions in the 1870s and 1880s had greatly curtailed the scope and effectiveness of the Thirteenth and Fourteenth Amendments. In the Slaughter-House Cases (1873), the Court ruled in a narrow 5-4 decision that the Fourteenth Amendment had not been designed to fundamentally alter the balance between state and national citizenship. Articulating a theory of dual citizenship, it thus insisted that the Fourteenth Amendment could be applied only to state infringements on the "privileges and immunities" of national citizenship, as distinct from state citizenship. Its equally narrow interpretation of the intention of the Thirteenth Amendment in Slaughter-House seemed to render that amendment functionally a dead letter. In U.S. v. Cruikshank (1876), the Court ruled that black victims of politically motivated mob violence in Colfax, Louisiana, could not seek redress under the purview of the Fourteenth Amendment, which applied only to state actions rather than individual actions. The effect of this ruling was to relegate most civil rights cases to state rather than federal courts, leaving blacks at the mercy of local judges and juries. Finally, in its most widely noted decision, the Civil Rights Cases (1883), the Supreme Court struck down the 1875 Civil Rights Act, which, among other things, had prohibited segregation in most public and quasi-public venues.(68)

But these decisions had left many critical issues unaddressed. The majority ruling in the Civil Rights Cases, for example, did not offer a guide for the Court in Plessy, because it had ruled only on racial discrimination by private individuals, as opposed to discriminatory practices of state legislative origin. In fact, the Court had explicitly stated in its ruling that the Fourteenth Amendment was intended to forbid racial discrimination by the states. Furthermore, Justice Harlan's vigorous dissent in the Civil Rights Cases had offered hope to those Radical Republicans who believed that the Thirteenth and Fourteenth Amendments created affirmative rights for U.S. citizens.(69) Because there were many ambiguities--as well as close decisions--in these previous cases, there was reason to believe that a new court might recoup some of the seemingly lost legal ground for black civil rights in Plessy. Only four justices who had participated in the 1883 Civil Rights Cases (one of whom was Harlan) remained on the bench by the time Plessy was heard.

Nevertheless, Tourgee's multipronged attack, it must be understood, reflected a keen awareness that the Supreme Court justices he sought to persuade would be in all likelihood overwhelmingly hostile to his cause. On the one hand, the brief contains a straightforward argument that the Separate Car Act's only purpose is to insult and discriminate against any citizen the state chooses to deem "black," thereby depriving that person of his or her fundamental rights of citizenship as protected by the Thirteenth and Fourteenth Amendments. On the other hand, it presents several alternative, even contradictory, arguments to that line of reasoning, through which Tourgee attempted to manipulate the presumed conservative bias of the Supreme Court in his favor by appealing to property rights, the sanctity of the family, and even to the racist logic of white supremacists. These latter arguments have often been misunderstood by those scholars who have tended to interpret their meaning too literally. Those few who have recognized these arguments for their strategic--and even ironic--content have been closer to Tourgee's intended mark.(70)

However, the primary line of Tourgee's argument was both the most radical and the most straightforward one. He asserted that the Reconstruction amendments had redefined the nature of United States citizenship. The Fourteenth Amendment, according to him, had been more than part of a program for protecting blacks and restoring order in the South: it had intended a revolution in civic life. It was the "magna charta" of United States citizenship that subsumed state citizenship rights under the federal umbrella and thereby ousted states "of all control over citizenship." In his words, "the Fourteenth Amendment creates a new citizenship ... embracing new rights, privileges and immunities, derivable in a new manner, controlled by new authority, having a new scope and extent, dependent on national authority for its existence and looking to national power for its preservation."(71)

This statement, which revisited the themes of Robert Ingersoll's 1883 speech in the wake of the Civil Rights Cases, was premised on a Radical interpretation of the Civil War. According to Tourgee, the Reconstruction amendments represented the constitutional assimilation of the egalitarian principles of the Declaration of Independence. Echoing Lincoln's Gettysburg Address, he insisted that the Declaration of Independence outlined the fundamental principles of American government, and that it embodied, in Tourgee's words, "the controlling idea of our [governmental] institutions." Taking a progressive view of history, he argued that a Supreme Court ruling against such a broad interpretation of the amendments would constitute an anachronistic attempt to undo the results of the Civil War. The Fourteenth Amendment, he explained, was conceived:

in strict accord with the Declaration of Independence, which is not a fable as some of our modern theorists would have us believe, but the all-embracing formula of personal rights on which our government is based and toward which it is tending with a power that neither legislation nor judicial construction can prevent.(72)

The war had destroyed slavery and the theory of state sovereignty, and the Court could not bring them back. Like the infamous Dred Scott decision, Tourgee implied, an attempt to do so would be a dangerous and futile reaction against the march of human progress and democratic freedom.

In the same spirit, Tourgee argued that the Separate Car Act violated the Thirteenth Amendment's prohibition of slavery and involuntary servitude. He reminded the Court that the legal definition of the term "slave," under both U.S. and Louisiana antebellum law, was merely "a person without rights." Thus, the condition of being a slave was not the condition of being owned--in fact the legal definition of slavery made no reference to either property or ownership. The condition of slavery meant complete subjection to the "civil and political society" to which the slave belonged. The institution of slavery, in his words, held "the African in bondage to the whole white race as well as to his owner." American slavery had thus constituted nothing more or less than a racial caste system. The abolition of slavery by the Thirteenth Amendment, he concluded, encompassed more than the mere prohibition of the "incident of [individual] ownership"; it meant the permanent destruction of any such caste system. The crux of this argument hinged upon whether or not the Court agreed that the intention of the Louisiana law was an attempt to reinstate a caste system and return blacks to the status of "persons without rights."(73)

The issue of the Louisiana legislature's intention was paramount in Tourgee's primary argument. Every bit of historical evidence and social fact, Tourgee made clear, indicated that the state intended to reduce those designated as "colored" to the "condition of a subject race" and thus violated the spirit of the Reconstruction amendments. Tourgee not only asked the Court to consider the recent history of slavery, civil war, and the "experience of the civilized world" with regard to race, but he also admonished the justices to remember the concrete realities of the social structure that made black social advancement dependent upon white acceptance. "Six-sevenths of the population are white," he pointed out. "Nineteen-twentieths of the property of the country is owned by white people. Ninety-nine hundredths of the business opportunities are in the control of white people." Under these social conditions, does not exclusion both imply and ensure inferiority? More directly, he pointed out, absolute proof of the law's discriminatory intent could be found in the provision of the Separate Car Act that provided for the exemption of colored nurses from being separated from their white attendees on the railroad cars. This exemption belied the fact that there was no real concern over health or public safety, as the law purported, but rather the mere intent to keep blacks in a subordinate position.(74)

In upholding the Separate Car Act, the Louisiana Supreme Court had ruled that racial segregation was a reasonable use of state police powers to secure the health and moral welfare of society. But clauses such as the one exempting colored nurses, Tourgee astutely pointed out, revealed that the true purpose of the law was merely "for the gratification and recognition of the sentiment of white superiority and white supremacy." Tourgee asked, "[I]f color breeds contagion in a railway coach," then why was the risk to public health and comfort not applicable to nurses? The answer was as plain as the law's intent: "The exemption of nurses shows that the real evil lies not in the color of the skin but in the relation the colored person sustains to the white. If he is a dependent it may be endured: if he is not, his presence is insufferable." Making his case regarding the law's intent as bluntly as possible, he concluded that if "Justice is pictured blind," then "the Law ... ought at least to be color-blind."(75)

Cogent as these arguments may appear, they faced grave difficulties before the Court. The formalist inclinations of the majority of justices predisposed them not to look beyond the letter of the law to consider actual social conditions. Moreover, most of the precedents regarding the scope of the Fourteenth Amendment seemed to contradict Tourgee's claims about its revolutionary effect on the nature of national citizenship. Indeed, both the Slaughter-House Cases (1873) and U.S. v. Cruikshank (1876) had explicitly refuted those claims. Rather than ignore these precedents, however, Tourgee confronted them in a surprisingly blunt and condemnatory manner. His excoriation of these two decisions, more than anything else, demonstrated Tourgee's awareness that a direct attack on the Separate Car Act probably faced insuperable obstacles.

The majority opinion in the Slaughter-House Cases had stated that the Fourteenth Amendment's "one pervading purpose" had been to protect the rights of blacks from hostile legislation, not to broaden the traditional scope of national citizenship, because it found no words expressly stating this latter intention within the amendment itself.(76) Tourgee demolished this interpretation of the "original intention" of the Fourteenth Amendment by adopting a formalist critique of it. The "plain and unquestioned purport" of the amendment, he argued, was clear from its language. It made no mention of race or color, despite the Court's contention in Slaughter-House that its "one pervading purpose" was to protect the rights of blacks. On the contrary, Tourgee pointedly declared that "[n]o man can deny that the language employed [in the amendment] is of the broadest and most universal character. `Every person,' `any law,' `any person' are the terms employed.... [T]he language used is not particular but universal." Tourgee made no effort to hide his outrage that the intention of the Fourteenth Amendment could be so grossly restricted. Boldly, he chastised the Court: "`All' can never be made to mean `some,' nor `every person' be properly construed to be only one class or race, until the laws of English speech are overthrown."(77)

Tourgee tried to expose the contradictory nature of the Court's previous reasoning in order to prevent its reoccurrence in the Plessy case. Whereas the Slaughter-House decision had refused to infer that an expansion of federal power was implied in the Fourteenth Amendment's wording because it was not expressly stated, it had nonetheless restricted the amendment's intended scope to the protection of blacks--even though no such motive was expressly stated or even implied in its wording. While Slaughter-House had restricted the scope of the Fourteenth Amendment, the Cruikshank case had all but nullified its application. Cruikshank, Tourgee told the Court, "proceeds upon the same, as we conceive, mistaken view, both of the character and effect of the XIVth Amendment." Elaborating on the restricted definition of national citizenship suggested by Slaughter-House, the Court had proceeded in Cruikshank to rule that the power to protect the "privileges and immunities" of all state citizens--including blacks--from infringement by other citizens "rests alone with the State." As a result, it had declared unconstitutional certain provisions of the Enforcement Act of 1870 because they overreached the scope of federal power--despite the fact that these provisions had been drafted by Congress on the assumption that the Fourteenth Amendment had already expanded federal protection of citizenship rights.(78)

Tourgee expressed utter contempt for the Cruikshank ruling, which he considered a resurrection of states' rights doctrines. With repeated references to the issues of southern secession and the "long and bloody war" against such doctrines, he wondered what other purpose the Fourteenth Amendment could have meant to serve if not to establish federal protection of its citizens' rights. "If this construction be the correct one," he said of Cruikshank, then "the [Fourteenth] amendment is the absurdist piece of legislation ever written in a statute book." Indeed, it meant that the Fourteenth Amendment had virtually no impact on the legal status quo. Admitting that the Cruikshank decision rests "squarely against us," he had no choice but to implore the Court to reverse itself. The Cruikshank decision, he said, simply "cannot stand," since it had been based on a "false hypothesis."(79) Though he pointed to the Court's decision in Strauder v. West Virginia (1880)--a decision that might be construed to contradict Cruikshank--his surprising frontal assault on the precedents nearly amounted to an admission of his argument's futility, unless the Court was willing to abruptly reverse the underlying premises of its recent decisions.(80)

Having laid out his constitutional position in the most forthright manner possible, Tourgee developed a number of secondary arguments for the Court to consider. In these, he seemed to recognize that racial difference would not be deemed an inherently hostile and unreasonable distinction by the Court. Whether or not the Reconstruction amendments had intended to prohibit laws like the Separate Car Act, the burden of Tourgee's position in the 1890s was to explain why race should not be a reasonable ground for legislative discrimination. By the 1890s, however, arguments in defense of racial equality were being publicly undermined by the contrary assertions of scientists, and their ideas, whether directly or indirectly, probably carried a great deal of authority in the minds of the Supreme Court justices. Tourgee had long been an incisive critic of social scientific theories of racial inequalities. Social scientist Frederick L. Hoffman had attacked Tourgee personally for his "foolish utterances" on the subject.(81) Only a few months before he presented his oral arguments in the Plessy case, Tourgee had delivered the eulogy for Frederick Douglass in a public memorial service held at Boston's Faneuil Hall on December 20, 1895. In it, he had spoken in true abolitionist fashion directly to the newest social scientific theories and had insisted that history had always defied theories of racial inferiority. He reminded social scientists of the discredited proslavery theories of the previous generation. "O scientist! O bigot!" Tourgee exclaimed, "if you wish to learn humility and avoid the shame of the world's ridicule, read the record of your predecessors of only fifty years ago, and see how feeble is the wisdom of man."(82) Years before, in An Appeal to Caesar, he had minimized the importance of racial influence on individual character, asserting that "[w]hether the colored man is the equal, the inferior, or the superior of the white race in knowledge, capacity, or the power of self-direction has not been specifically revealed...." One thing was certain: assertions of black incapacity had always been proven false by history. Tourgee insisted that "[s]ome things are self-evident, and among these is the fact that every argument and demonstration [of] the inherent inferiority of the African of the United States ... has been shown by irrefragable evidence of experience to be false."(83)

Nevertheless, experience had also shown him that most whites were not yet willing to accept these facts, and therefore, in the Plessy case, Tourgee did not bother to argue that race was irrelevant or incidental to character. He did, however, suggest that the great extent of "racial mixtures" in America confounded any simple classification by race. No doubt Homer Plessy's light complexion may have been in part an effort to appeal to the sympathies of the all-white Supreme Court--just as the figure of the "tragic mulatto" had been a staple of antislavery literature--because it offered an instance in which race prejudice existed despite the fact that all the physical qualities that marked racial difference were absent. But historians who have suggested that the manipulation of Plessy's light-skinned complexion amounted to a defense of the Creole elite against the "penalties of color" miss the point of Tourgee's strategy, which was to use the "whiteness" of Homer Plessy to probe the very logic of racial categories themselves.(84) He attempted to shift the burden onto the Louisiana legislature by requiring it to provide a legal definition of race. By way of argument, Tourgee pointed out that many individuals who were "white" in appearance were often considered "black" by social reputation--especially in Louisiana. Therefore, he concluded, the law must provide a strict definition of race in order for the Separate Car Act to be enforced. Yet what possible criteria could railroad conductors use to decide a person's race when appearance was clearly not a sufficient standard? "Race-intermixture has proceeded to such an extent," he observed, that an individual's race is often "impossible of ascertainment" even after the careful weighing of documentary evidence. How then could it be accomplished by "the casual scrutiny of a busy conductor?"(85)

By introducing a plaintiff of indeterminate race, Tourgee hoped to call the Court's attention to the arbitrary nature of racial classifications. In the person of Homer Plessy, he asserted, "we have the case of a [seven-eighths white] man who believed he had a right to the privilege and advantage of being esteemed a white man.... "A man of Plessy's complexion, he pointed out, may not even know himself to which race he belongs and may believe that he belongs in the white car. There could be no adequate instruction in Plessy's case that would make the "officer of a railroad competent to decide the question of race." Tourgee asked the Court, "Is not the question of race, legally considered, one impossible to be determined, in the absence of statutory definition?" Since the Separate Car Act did not, and could not, prove that Plessy was black, Tourgee reasoned, "The statement `in a car to which he did not by race belong' is a conclusion, not a fact."(86)

Tourgee thus challenged lawmakers to prove that categories of "race" were based on more than the arbitrary conventions of custom and tradition--or, to put it in contemporary terms, "social constructions." "Race," Tourgee told the Supreme Court in his oral argument, "is a question which the law of Louisiana has not decided and which science is totally unable to solve.... "He pointed out:

They are called `races' it is true, but the only racial distinctions recognized by the act are `white' and `colored.' The statute does not use the ordinary scientific terms Caucasian, Mongolian, Indian, Negro, &c.... [T]hey reduce the whole human family into two grand divisions which [are given] the term `races,' the white `race,' and the `colored' race.

Once again, this suggested that the only definitions of race were based entirely on social prejudice, rather than empirically verifiable "science." He bitterly remarked, "It is a new ethnology but prejudice based on the lessons of slavery does not stop at trifles."(87)

Tourgee gambled a large portion of his argument on convincing the Court of the shortcomings inherent to arbitrarily determining the race of passengers like Homer Plessy. In one sense, this was a dangerous argument that may have been doomed to backfire, since most racist advocates of segregation would have subscribed to the infamous "one-drop" rule--that is, that any hereditary trace (or even reputation) of "color" classified one as "colored." Tourgee may well have recognized this possibility, however, because he honed his argument to cut both ways. On the one hand, he attacked the very notion of racial categories in an egalitarian manner, claiming that the state had no right or competence "to label one citizen as white and another as colored."(88) But at the same time, he manipulated white supremacist logic in order to thrust his argument in the opposite direction by calling attention to the detrimental social effects that public assessments of race might have for whites.

In a passage that drips with bitter irony, Tourgee reminded the Court that whiteness was a valuable piece of property. "The most precious of all inheritances," he told the Court, "is the reputation of being white." It amounted to a badge of good character opening the doors to every social advancement. On the other hand, he said, "The blight of color is the greatest misfortune that can befall a man or woman" in American society; as he observed in his brief to the Court, "[p]robably most white persons if given a choice ... would prefer death to life in the United States as colored persons."(89) As a result, the racial misclassification of passengers could have drastic social consequences. If a white person were to be mistakenly forced to travel in a colored car, Tourgee argued, that person should be able to sue for damages for having his reputation besmirched or for having been deprived of the benefits of his whiteness. According to the Separate Car Act, neither the railroad conductor nor the railway company could be liable for damage if a passenger was expelled from the train for refusing to comply with the conductor's car assignment. Therefore, Tourgee reasoned, if a white man were assigned to the wrong car, the effect was to "deprive him ... of [his] property--this reputation which has an actual pecuniary value," without the "due process of law" guaranteed by the Fourteenth Amendment. Having built on the logic of a racist legal tradition that had long privileged whiteness, he explicitly summarized the conclusion to which it led: "[B]elonging to the dominant ... white race, is property, in the same sense that a right of action or of inheritance is property."(90) Tourgee thus challenged the Court to strike down the Separate Car Act, in order to fully protect the rights of both property and whiteness.

Finally, in another appeal to broad sentiment, Tourgee asserted that the Louisiana segregation law interfered with the sanctity of the family. Invoking a tradition that harkened back to mainstream antislavery novels like Uncle Tom's Cabin, he argued that segregation invaded the "natural domestic rights of the most sacred character." He presented two scenarios: "A man may be white and his wife colored," or "a wife may be white and her children colored." The state, he insisted, should not have the right to separate a man from his wife or a mother from her daughter simply because one was of "a darker tinge." However, he pointed out, the Louisiana law literally required the break-up of such families, and it thereby deprived husbands, wives, and children of their "natural domestic rights" in public conveyances.(91)

Considering the social power of "whiteness" in the 1890s, these arguments may be viewed as either very radical or very reactionary. It is important to note that in an era of near-hysteria over the dangers of "miscegenation" or "racial amalgamation," Tourgee's brief is filled with casual references to "mulattos" and mixed-race families. One critic has plausibly suggested that, for Tourgee, "the mulatto symbolize[d] America's legal and political commitment to color blindness" by personifying an integrated America.(92) Another possibility is that he hoped to draw the Court's attention away from the abstract phantoms of miscegenation's horrors to actual social conditions. Despite the fear of "racial amalgamation" that lurked behind the impetus to segregation, Tourgee casually demonstrated that racial intermixture and intermarriage were already accomplished facts. Homer Plessy himself was a living testimony to this fact. The "races" had mixed for centuries, despite enormous legal and social barriers, and civilization had not crumbled as a result. On an almost subconscious level, Tourgee's brief repeatedly hammered home the reality that racial intermixture--the bugaboo of integration--was benign, commonplace, and could not be stopped by unconstitutional segregation laws.

When the Supreme Court released its ruling in Plessy on May 18, 1896, many white northern newspapers expressed surprise and outrage over it, although none gave it extensive coverage. The Rochester (N.Y.) Democrat and Chronicle, for one, labeled it "A Strange Decision" and applauded Harlan's dissent. "Justice Harlan's vigorous dissent denouncing these laws as mischievous," it wrote, "comes very much nearer the sentiment of the American people upon that question than the decision of the majority does." The New York Tribune also called the decision "unfortunate to say the least," but it seemed prepared to accept the sad fact that the constitutionality of segregation had been settled at last.(93) The acquiescence of the northern public to the legal triumph of segregation seems clearly evident in the press, but it does not follow that the majority of northerners necessarily endorsed the Plessy decision. It is presumptuous to conclude, as many have, that the Court's Plessy decision simply mirrored the uncontested, conventional wisdom of the time. For many, the sanction of such laws as the Separate Car Act by the nation's highest judicial authority probably stood in stark contrast not only to the spirit of the Reconstruction amendments but to the professed democratic ideals of the United States.

If Tourgee had expected a point-by-point response to his legal assault, he must have been sorely disappointed. Associate Justice Henry Billings Brown, who wrote the 7-1 majority opinion, managed to sidestep most of Tourgee's arguments. Brown declared that the statute implied "merely a legal distinction between the white and colored races" and not the inferiority of either race. Furthermore, on the issue of "race-as-property," Brown, while "[c]onceding [it] to be so," called Tourgee's bluff by explicitly daring him to attempt such a suit in court. "If he [Plessy] be a white man and assigned to a colored coach," Brown wrote, "he may have his action for damages against the company for being deprived of his so called property." In fact, the Court's majority encouraged him to do so, further suggesting that the definition of whiteness may be easily decided "under the laws of each State" according to their traditions and customs. As to the scientific validity or constitutionality of such traditions and customs (most of which were derived from antebellum slave codes), Brown's majority opinion conspicuously declined comment.(94)

The Court held, in brief, that racial segregation was a reasonable use of state police powers so long as the accommodations provided remained materially equal. The flaws in Brown's opinion were many, and they have been so widely acknowledged by legal scholars and contemporary critics as to not bear repeating here.(95) However, it is interesting to note that, whereas Justice Brown could have easily affirmed the decision with minimal comment, he nevertheless felt compelled to launch into a petulant discourse regarding the immutable nature of racial distinctions. Maintaining that "[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based solely upon physical differences," Brown offered the non sequitur that "social prejudices" cannot be "overcome by legislation." In other words, he stated that the law cannot make the races equal or force citizens to treat each other equally, even though the issue at hand was a legislative act that did nothing of the kind. The broad and memorable rhetoric of both the majority opinion and Justice Harlan's dissent reflected the provocative character of Tourgee's attack on the law; indeed, both of them bear the marks of Tourgee's stinging attacks.(96)

Justice Harlan's dissent is in many ways a far less radical and less egalitarian document than Tourgee's brief. In his dissenting opinion, Harlan, of course, affirmed Tourgee's assertion of the "color-blind" ideal, stating that both the Thirteenth and Fourteenth Amendments prohibited "any public authority to know the race of those" whom it protects. He also unambiguously affirmed that the Fourteenth Amendment had revolutionized U.S. citizenship, and he berated the majority for relying on antebellum case law that dated from a time when the country had been "dominated by the institution of slavery." Most compellingly, unlike Justice Brown's opinion, which had remained silent on the issue of the law's malicious intent, Harlan frankly remarked that despite "the thin disguise" of equal accommodations "everyone knows that the statute in question had its origins in the purpose" of maintaining white supremacy. To support this contention, he followed Tourgee's lead by citing the clause allowing for the exemption of colored nurses.(97)

Yet Harlan was not prepared to engage those arguments made on behalf of Plessy that called into question the ostensibly scientific basis of racial classifications. In fact, he made absolutely clear that he regarded the white race as superior "in prestige, in achievements, in education, in wealth, and in power," and that he believed it would "continue to be [so] for all time." Harlan also felt it necessary to insist that "social equality" (by which he meant fraternization and intermarriage between the races) would not result merely from integrated public facilities. "Social equality," he wrote, "no more exists between two races when members of the same races sit by each other in a street car" than when they come into contact in any other ordinary function of civic life. He scoffed at the idea that "the integrity of the white race may be corrupted, or that its supremacy be imperilled, by contact on public highways with black people." Thus, just as Justice Brown had needlessly endorsed then-fashionable doctrines of scientific racism, Harlan felt it necessary to gratuitously reassure whites that racial amalgamation would not result from--nor white supremacy become "imperilled" by--contact with blacks on public conveyances.(98)

Though Harlan has been justly remembered for his brave and powerful dissent, Tourgee's name has less often been associated with the Plessy case than Harlan's. This was not due to the lack of appreciation by his New Orleans clients in the decision's aftermath. When the case was finished, the Citizens' Committee spent $60 of their remaining fund for a testimonial to "Judge Tourgee," while donating the rest ($160) to charity. In their final statement about the case to the public, the Committee wrote, "[W]e ... still believe that we were right and our cause is sacred, when we are encouraged by the indomitable will and noble defence of the Hon. Albion W. Tourgee, and supported by the courageous dissenting opinion of Justice John Harlan." They told their followers that "the people should never forget these noble men, particularly Tourgee."(99) The members of the Citizens' Committee evidently regarded Tourgee's work on their behalf as more than satisfactory, and they ranked his contribution to their cause as high, if not higher, than Harlan's. In addition, when W. E. B. Du Bois's Niagara Movement was launched in 1905, it sponsored a tribute to three "Friends of Freedom"--William Lloyd Garrison, Albion Tourgee, and Frederick Douglass--men whose tradition of militant defense of black rights it hoped to continue.(100)

Fifty-four years after Plessy, Supreme Court Justice Robert H. Jackson rediscovered Tourgee's brief while researching segregation case law during the court's 1950 hearings of Sweatt v. Painter and McLaurin v. Oklahoma Board of Regents. These two cases presented the Court with an opportunity to reverse itself on the issue of segregation (which it would not do until four years later in Brown), and they prompted Justice Jackson to look deeply into the Plessy case, which he correctly saw as the "most important of the precedents involved" in the matter. Jackson, who recalled Tourgee as an author of some distinction, was favorably impressed by his arguments. He wrote to a friend, "The Plessy case arose in Louisiana and how Tourgee got into it I have not learned. In any event, I have gone to his old brief, filed here, and there is no argument made today that he would not make to the court. His brief is a rather witty production of points." In particular, Jackson noted Tourgee's use of the "color-blind" metaphor and wondered "whether this was original with him [because] it has been gotten off a number of times since as original wit." Jackson prophetically suggested that Tourgee might soon enjoy a "post-mortem victory" for his position.(101)

Since the Plessy decision was handed down in 1896, the meaning and political usage of the legal metaphor of "color blindness" has undergone many transformations. During the pre-Brown era, the NAACP often cited the language of Harlan's dissent when litigating cases that involved the constitutionality of segregation. In recent years, however, Harlan's statement that "our Constitution is color-blind," has been seized upon more often by political conservatives--though tellingly not the adjoining part of his dictum that declared "[t]here is no caste here," since the Constitution "neither knows nor tolerates classes among citizens." In the 1978 Supreme Court case, Regents of the University of California v. Bakke, four justices invoked Harlan's Plessy dissent to oppose the constitutionality of affirmative action programs by claiming that the principle of "color blindness" prevented the judiciary from ever allowing racial preferences to stand. Many commentators pointed to the irony that Justice Thurgood Marshall, onetime NAACP litigator, opposed this viewpoint in Bakke and concurred with the majority that Harlan's "color-blind" rule "has never been adopted by this court as the proper meaning of the Equal Protection Clause."(102)

In opposition to the conservative appropriation of "color-blindness," some recent legal scholars and activists on the political left have argued that, in America, achieving "racial blindness" before the law is a virtual impossibility. This latter argument is advanced by the "Critical Race Theory" movement, whose advocates proclaim themselves to be on the "cutting edge" of the law.(103) Many of these scholars have suggested that "whiteness" should be explicitly recognized as a form of legal property that provides its owners with an inherent social advantage. The purpose of this movement is to ground legal principle in social fact rather than in abstract principles of social justice. In the words of one of this group's leading proponents: "[C]ritical race theory counters color blindness by saying that race is not simply race color, and ... [by revealing] the ways that race is a category that has been structured out of law and culture and history."(104)

What is historically interesting about these opposing viewpoints, and what legal scholars have failed thus far to appreciate fully, is that both positions can be found in the Radical challenge to segregation in Plessy. The same legal brief filed on Plessy's behalf that suggested the law must be "color-blind" also argued that "the reputation of being white" should be recognized as a form of legal property. Tourgee marshalled both of these arguments because he believed that an ideal of "color blindness" could be achieved only through careful attention to concrete social inequalities. He employed both of these arguments to the same purpose: to point out that racial categories have enormous social consequences in American society and therefore must be considered in light of their particular histories and social meanings. Legal scholar Andrew Kull is surely wrong when he claims that a profound shift took place in the 1960s when the civil rights movement endorsed affirmative action programs. Kull has stated that in doing so the movement abandoned the ideal of "color blindness," which was, in his words, "the central and unvarying objective of civil rights activists for more than [125] years."(105) But Tourgee, for one, never viewed the "color-blind" ideal as a rigid means to an end. Rather, he remained open to various means of bringing society closer to the dream of organic racial justice--that is, of perfect equality before the law for all, regardless of race or color.

The Plessy case--and especially Tourgee's contribution to it--continues to represent a significant moment in the articulation of democratic principles regarding the relationship of race and citizenship. The ideal of a "color-blind" democratic public began as a vibrant, egalitarian principle that served as a call to arms for African Americans and their white allies. To make the slogan of "color blindness" a justification for principled inaction in the face of continued injustice is to promote historical amnesia. Both Tourgee's arguments in Plessy and the civil rights crusade that accompanied the case represented an unflinching attempt to confront the real causes of social inequalities and discover a pragmatic, workable remedy for these ills.

(1) In addition to the many newspaper and magazine articles that appeared, two scholarly treatments are Gerald J. Postema, ed., Racism and the Law: The Legacy and Lessons of Plessy (Dordrecht, Boston, and London, 1997); and Brook Thomas, ed., Plessy v. Ferguson: A Brief History with Documents (Boston and New York, 1997). See also Justice Clarence Thomas's reassessment of the case in "The Virtue of Defeat: Plessy v. Ferguson in Retrospect," Journal of Supreme Court History (1997), II, 15-24.

I would like to thank the three anonymous readers of the Journal of Southern History, as well as William E. Nelson, John Reid, Louis Anthes, Scott Messinger, and the other members of the Legal History Colloquium at New York University School of Law who provided valuable criticism of earlier versions of this article. I would also like to acknowledge the following people whose encouragement and critical feedback made this piece of scholarship possible: Thomas Bender, Martha Hodes, Robin D. G. Kelley, Kenneth Silverman, Kevin Murphy, Erin Clune, Amy Richter, Greg Robinson, Molly McGarry, Laura K. Ross, Emory Elliott, and most especially, Kimberly D. Lutz.

(2) Plessy v. Ferguson, 163 U.S. 537 (1896), at 559.

(3) On the elusive search for Harlan's original intention in using the phrase, see Liva Baker, "John Marshall Harlan I and a Color Blind Constitution: The Frankfurter-Harlan II Conversations," Journal of Supreme Court History (1992), 27-37. Legal scholar Andrew Kull has dismissed Tourgee's use of the phrase "color blind" as nothing more than a "rather lame suggestion" that Harlan alone transformed into a legal principle. Andrew Kull, The Color-Blind Constitution (Cambridge, Mass., and London, 1992), 119. The best historical studies of the Plessy case are Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (Oxford and New York, 1987); C. Vann Woodward, American Counterpoint: Slavery and Racism in the North-South Dialogue (Boston and Toronto, 1964), 212-33; Otto H. Olsen, ed., The Thin Disguise: Turning Point in Negro History: Plessy v. Ferguson: A Documentary Presentation, 1864-1896 (New York, 1967), esp. the introduction, 1-30; and Thomas, ed., Plessy v. Ferguson: A Brief History.

(4) An eccentric progressive southerner and former slaveholder, Harlan has been described by his most recent biographer as a "judicial enigma." Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (New York, 1995).

(5) General Assembly of the State of Louisiana, Acts 1890, No. 111, p. 152 (quotation). On the formation of the Citizens' Committee see "Report of the Proceedings of the Annulment of Act 111 of 1890 by the Citizens' Committee of New Orleans, La.," Folder 13, Box 1, Charles B. Rousseve Papers (Amistad Research Center, Tulane University, New Orleans). Ida B. Wells identified Tourgee's "A Bystander's Notes" as a leading voice of opposition to racism; see Alfreda M. Duster, ed., Crusade for Justice: The Autobiography of Ida B. Wells (Chicago and London, 1970), 120-21, 156. Historian George M. Fredrickson deemed Tourgee "the North's leading white exponent of racial egalitarianism" during the 1880s in The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914 (New York, London, and other cities, 1971), 242.

(6) On NAACP strategy see Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York, 1975), passim. On the NCRA see James M. McPherson, The Abolitionist Legacy: From Reconstruction to the NAACP (Princeton, 1975), 317. Tourgee and his clients presented the court and the wider public with a vision of democratic citizenship rooted in the Radical Republican principles of federal supremacy, equal protection of the laws, and "color blindness" before the law.

(7) Rogers Smith has called this tradition "ascriptive Americanis[m]," a term that has both a legal and a social history. Smith, Civic Ideals: Conflicting Ideals of Citizenship in U.S. History (New Haven and London, 1997), 6.

(8) Draft of Tourgee's oral argument before the U.S. Supreme Court in Plessy v. Ferguson, item 6472, reel 31, Albion W. Tourgee Papers (Chautauqua County Historical Society, Westfield, N.Y.; microfilm ed., 60 reels, Ann Arbor, Mich., 1997).

(9) See Stanley P. Hirshson, Farewell to the Bloody Shirt: Northern Republicans and the Southern Negro, 1877-1893 (Bloomington, Ind., 1962); and Rayford W. Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York, 1954).

(10) See Richard A. Maidmont's apologia for the Court's decision in the Plessy decision in "Plessy v. Ferguson Re-examined," Journal of American Studies, VII (August 1973), 125-32. Lofgren's Plessy Case also lends support to this conclusion by overemphasizing the influence of scientific racism at the time and leaving the impression that its hegemony was uncontested. Recent overviews of Reconstruction historiography have suggested that we have not fully understood the fate of the egalitarian ideals of Reconstruction; see Eric Anderson, "Whither Reconstruction Historiography?" in Eric Anderson and Alfred A. Moss Jr., eds., The Facts of Reconstruction: Essays in Honor of John Hope Franklin (Baton Rouge and London, 1991), 219-28.

(11) Tourgee, letter to the editor, [Raleigh] North Carolina Standard, January 28, 1870, quoted in Richard N. Current, Those Terrible Carpetbaggers: A Reinterpretation (Oxford, 1988), 201-2.

(12) Albion W. Tourgee, "A Bystander's Notes," [Chicago] Daily Inter Ocean, October 17, 1891, p. 4.

(13) Albion W. Tourgee, "Brief for Plaintiff in Error," October Term, 1895, No. 210, Plessy v. Ferguson, in Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, Vol. XIII (Arlington, Va., 1975), 27-63 (quotation on p. 46).

(14) Garrison initially seized upon the framers' avoidance of direct reference to "slavery" or "race" as evidence that the Constitution prohibited racial discrimination and promoted the phasing out of slavery, but he soon abandoned this position; see Kull, Color-Blind Constitution, 10-11 (Garrison quotation). On abolitionist thought see David A. J. Richards, Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments (Princeton, 1993); Paul Goodman, Of One Blood: Abolitionism and the Origins of Racial Equality (Berkeley, Los Angeles, and London, 1998); and John Ashworth, Slavery, Capitalism, and Politics in the Antebellum Republic: Vol. I: Commerce and Compromise, 1820-1850 (Cambridge, Eng., New York, and Melbourne, 1995), 125-91.

(15) Kull, Color-Blind Constitution, 42, 47 (Sumner quotation on p. 47). Kull argued that "Roberts was an innovative decision" that "remains equally good law today" because Shaw established a controlling "rule of reasonableness" in making legal classifications by race; Kull, Color-Blind Constitution, 48. See also Leonard W. Levy and Harlan Phillips, "The Roberts Case: Source of the `Separate But Equal' Doctrine," American Historical Review, LVI (April 1951), 510-18.

(16) Several clippings from the National Anti-Slavery Standard from 1867 can be found in Tourgee's personal papers (for example, see item 2428, reel 18). Kull, Color-Blind Constitution, 62-63 (Phillips quotation); U.S. Constitution, Amend. 14, sec. 1. See also Kluger, Simple Justice, 625-36; and William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass., and London, 1988).

(17) Ingersoll's speech was printed in pamphlet form in Proceedings of the Civil Rights Mass Meeting Held in Lincoln Hall, October 22, 1883 ... (Washington, D.C., 1883), and was subsequently reprinted in Bishop Henry M. Turner, ed., The Black Man's Doom: The Two Barbarous and Cruel Decisions of the United States Supreme Court ... (Philadelphia, 1896; quotations on pp. 55 and 58) (Schomburg Center for Research in Black Culture, New York Public Library). Soon after Tourgee was named as Homer Plessy's lead counsel, the New Orleans Citizens' Committee suggested that he might wish to enlist Ingersoll onto his legal team. Louis A. Martinet wrote Tourgee that some of their supporters were "carried away with the idea of having you & Col. Ingersoll in the case." Martinet to AWT, October 5, 1891, quoted in Olsen, ed., Thin Disguise, 57. On Ingersoll's career as a civil rights activist and orator see David D. Anderson, Robert Ingersoll (New York, 1972).

(18) Eric Foner has pointed to the unusual strength of abolitionism (and, subsequently, Radical Republicanism) in this region in Free Soil Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York and Oxford, 1970), 108-9. For the sources of this region's distinctive political culture see Traci A. Hodgson, "Egalitarian Transformations: Gender, Religious Culture and Family Government on the Western Reserve of Ohio, 1800-1830 (Ph.D. dissertation, Boston University, 1997). The second chapter of my forthcoming dissertation examines the influence of this region on Tourgee's political ideas as well.

(19) There are two modern biographies of Tourgee. Theodore L. Gross, Albion W. Tourgee (New York, 1963) is largely unsympathetic and echoes the judgments of the Dunning-influenced scholarship on Reconstruction. Otto H. Olsen, Carpetbagger's Crusade: The Life of Albion Winegar Tourgee (Baltimore, 1965) gives a much fuller and more sympathetic treatment of Tourgee, focusing on his North Carolina years. See also the sections on Tourgee in Current, Those Terrible Carpetbaggers.

(20) On the novel's reception see, for example, the "Press Notices" prefacing the title page in Albion W. Tourgee, A Fool's Errand By One of the Fools (rev. ed., New York, 1880); for his advocacy of an educational program see pp. 346-47.

(21) Ward M. McAfee, "Reconstruction Revisited: The Republican Public Education Crusade of the 1870s," Civil War History, XLII (June 1996), 136 (quotation). See also Richard H. Abbott, The Republican Party and the South, 1855-1877: The First Southern Strategy (Chapel Hill and London, 1986); and Michael Les Benedict, "Reform Republicans and the Retreat from Reconstruction," in Anderson and Moss Jr., eds., Facts of Reconstruction, 53-77.

(22) Albion W. Tourgee [AWT] to James A. Garfield, December 14, 1880; Garfield to Burke Aaron Hinsdale, December 30, 1880; Hinsdale to Garfield, January 4, 1881, all in James A. Garfield Papers (Library of Congress, Washington, D.C.); Fredrickson, Black Image, 241-43 (quotation on p. 243). See also Albion W. Tourgee, An Appeal to Caesar (New York, 1884), 9-20. The "Caesar" appealed to in the title refers not to Garfield but to "that other and greater Caesar whom none so devoutly revered--the AMERICAN PEOPLE" (quotation on p. 19).

(23) Ward McAfee, for example, has argued that the education crusade was in part a revival of the Know-Nothing nativism of the 1850s; McAfee, "Reconstruction Revisited," 134.

(24) Lewis P. Simpson, Mind and the American Civil War: A Meditation on Lost Causes (Baton Rouge and London, 1989), 69 (Emerson quotation).

(25) Albion W. Tourgee, "Does Injustice Pay?" in L. A. Martinet, ed., The Violation of a Constitutional Right. Published by Authority of the Citizens' Committee (New Orleans, August 1893), 19-24, Folder 12A, Box 1, Rousseve Papers.

(26) Albion W. Tourgee, Bricks Without Straw (New York, 1880), 34-35 (quotation); see also Sidney Kaplan, "Albion W. Tourgee: Attorney for the Segregated," Journal of Negro History, XLIX (April 1964), 128-33. On Tourgee's difficulties achieving racial justice in his North Carolina courtroom see Current, Those Terrible Carpetbaggers, 193-213; Olsen, Carpetbagger's Crusade, 143-55.

(27) Tourgee, Daily Inter Ocean, June 10, 1893, p. 4.

(28) Albion W. Tourgee, "The Negro's View of the Race Problem," in Isabel C. Barrows, ed., First Mohonk Conference on the Negro Question. Held at Lake Mohonk, Ulster County New York, June 4, 5, 6 [1890] (New York, 1969), 114 (quotation) (emphasis in original). On Tourgee's plan see the debate on H.R. 4980 in "Committee on Education, Support of Common Schools, March 22, 1884 ...," item 2446, reel 18, Tourgee Papers. Brook Thomas has pointed out that Tourgee's stubbornness on the race issue contributed to the tragic failure of Congress to pass any bill supporting education; see Thomas, ed., Plessy v. Ferguson: A Brief History, 4 n. 3.

(29) AWT to Reverend John H. Frazer, February 27, 1885, Jenkins Autograph Collection, MSS 031 (Friends Historical Library, Swarthmore College, Swarthmore, Pa.).

(30) M. H. Busbey to AWT, November 17, 1893 (first and second quotations), item 7501, reel 34, Tourgee Papers. See also the Nixon-Tourgee and the Busbey-Tourgee correspondence in the Tourgee Papers; and Tourgee's first columns for the Daily Inter Ocean, April 28 and May 5, 1888, both on p. 4. Originally called the Chicago Republican, the Inter Ocean would become the Herald, and later the Herald-Examiner. Its 1880s motto is quoted in Frank Luther Mort, American Journalism: A History: 1690-1950 (New York, 1950), 463.

(31) Tourgee, Daily Inter Ocean, July 7, July 14, and August 4, 1888, all on p. 4; AWT to Benjamin Harrison, n.d. [1888], Benjamin Harrison Papers (Library of Congress, Washington, D.C.).

(32) AWT to unknown, n.d. [18927], item 6025, reel 29, Tourgee Papers.

(33) Tourgee, Daily Inter Ocean, December 22, 1888, and January 5, 1889 (quotations), both on p. 4.

(34) Tourgee, Daily Inter Ocean, January 19, 1889, p. 4.

(35) One contemporary journalist called Tourgee's column "a source of strength and encouragement" that was read by "multitudes" of Republicans in Mississippi; T. Cotton, "The Inter-Ocean in Mississippi," newspaper clipping, May 5, 1892, item 621 l, reel 30, Tourgee Papers. Black newspapers frequently reprinted "A Bystander's Notes," including ones in Detroit, New Orleans, Cleveland, Pittsburgh, and many small-town newspapers throughout the South. See Otto H. Olsen, "Albion W. Tourgee and Negro Militants of the 1890s: A Documentary Selection," Science and Society, XXVIII (Spring 1964), 185.

(36) B. J. Dyer to AWT, May 29, 1892, item 6283, reel 30; "Where are the Patriots?" undated clipping [ca. March 1892] from the Chicago Times; item 6154, reel 29; "A Tourgee Disciple," undated clipping [ca. May 1892], unidentified Indianapolis, Ind., newspaper, item 6195, reel 30; "Another South Hater," [Jasper, Ala.] Mountain Eagle, n.d. [ca. 1893], all in Tourgee Papers. Joel Chandler Harris's comments from the Atlanta Constitution were quoted by Tourgee in the Daily Inter Ocean, May 10, 1890, p. 4.

(37) Jane and Minnie Evans to AWT, December 17, 1891; Dudley Stuard to AWT, August 15, 1892; Walter H. Griffin, "sons of liberty," to AWT, June 7, 1892; all reprinted in Olsen, "Albion W. Tourgee and Negro Militants of the 1890s," 191, 199-200, and 197.

(38) A facsimile of this photograph and its inscription can be found in Ida B. Wells et al., eds., The Reason Why the Colored American Is Not in the World's Columbian Exposition, 1893, edited by Robert W. Rydell (Chicago, 1893; repr., Urbana and Chicago, 1999). See also Vron Ware, Beyond the Pale: White Women, Racism, and History (New York and London, 1992), 170-77. Wells showed this photo throughout Britain, and it was described in the British press; see Duster, ed., Crusade for Justice, 138-39.

(39) AWT to L. A. Martinet, October 31, 1893, item 7438, reel 34 (quotation), Tourgee Papers. For Tourgee's invitation to Britain see Katherine Impey to AWT, June 24, 1893, item 7069, reel 33, Tourgee Papers.

(40) Tourgee, "Negro's View of the Race Problem," 111. See also Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York, 1988), 605-6.

(41) Tourgee, "Negro's View of the Race Problem," 108-10 [Tourgee's emphasis removed]; Barrows, First Mohonk, 24-25; entry for Friday, June 6, 1890, in Charles Richard Williams, ed., Diaries and Letters of Rutherford Birchard Hayes: Vol. IV: 1881-1893 (Columbus, Ohio, 1925), 579.

(42) Albion W. Tourgee, Daily Inter-Ocean, October 17, 1891, p. 4. See also Olsen, Carpetbagger's Crusade, 309-10, 326-28; Thomas, ed., Plessy v. Ferguson: A Brief History, 4; and Lofgren, Plessy Case, 28-31.

(43) Lofgren, Plessy Case, 28-43, 148-51; Louis A. Martinet to AWT, October 5, 1891, reprinted in Olsen, ed., Thin Disguise, 55-61. See also the Tourgee-J. C. Walker correspondence, 1891-1896, Tourgee Papers.

(44) See, for example, Kevin K. Gaines, Uplifting the Race: Black Leadership, Politics, and Culture in the Twentieth Century (Chapel Hill and London, 1996), 29; and David W. Bishop, "Plessy v. Ferguson: A Reinterpretation," Journal of Negro History, LXII (April 1977), 127-28.

(45) Tourgee, "Brief for Plaintiff in Error," 30, 56 (emphasis in original; page references are to Kurland and Casper, eds., Landmark Cases [supra note 13]).

(46) Louis A. Martinet to AWT, October 5, 1891, in Olsen, ed., Thin Disguise, 56-57. The gender of the litigant played an important part in other challenges to segregation law in which black women were denied access to the ladies' car. See Barbara Y. Welke, "When All the Women Were White and All the Blacks Were Men: Gender, Class, Race and the Road to Plessy, 1855-1914," Law and History Review, XIII (Fall 1995), 262-316.

(47) AWT to J. C. Walker, March 11, 1892, item 6101, reel 29, Tourgee Papers.

(48) Louis A. Martinet to AWT, October 5, 1891, in Olsen, ed., Thin Disguise; and Martinet to AWT, December 7, 1891, item 5837, reel 29, Tourgee Papers (quotations). The preacher in question, Reverend A. S. Jackson, was also a correspondent and admirer of Tourgee's. After writing to both men, it appears that Tourgee was able to smooth over the conflict between Jackson and Martinet. Louis A. Martinet to AWT, December 28, 1891, item 5877, reel 29, Tourgee Papers. Cheryl I. Harris has asserted that there was "vigorous opposition" among "organized Black leadership" to Tourgee's choice of a light-skinned defendant, but there was no objection from the Citizens' Committee, and I have found no evidence to suggest that other complaints were either organized or "vigorous." Cheryl I. Harris, "Whiteness as Property," Harvard Law Review, CVI (June 1993), 1747 n. 179. See also Jack Greenberg, Litigation For Social Change: Methods, Limits and Role in Democracy (New York, 1974), 13-15.

(49) J. C. Walker to AWT, October 2, 1893, item 7428, reel 34, Tourgee Papers; Lofgren, Plessy Case, 28-44, 57-60; Thomas, ed., Plessy v. Ferguson: A Brief History, 5, 189.

(50) Louis A. Martinet to AWT, October 5, 1891, in Olsen, ed., Thin Disguise, 57.

(51) Albion W. Tourgee, Is Liberty Worth Preserving? (Chicago, 1892), 25-27, in the Daniel Murray Pamphlet Collection (Library of Congress, Washington, D.C.); AWT to unknown, n.d. [18927], item 6029, reel 29, Tourgee Papers.

(52) Tourgee, Is Liberty Worth Preserving?, 17, 19.

(53) AWT to unknown, November 1891, item 5813, reel 29, Tourgee Papers; Albion W. Tourgee, Headquarters: National Citizens' Rights Association, broadside, October 15, 1893, Flavius Josephus Cook Papers (Rare Books, Manuscripts, and Special Collections Library, Duke University, Durham, N.C.); Olsen, Carpetbagger's Crusade, 294-96, 325.

(54) AWT to unknown, n.d. [1892?], item 6009, reel 29, Tourgee Papers (first quotation); Tourgee, Is Liberty Worth Preserving?, 25 (second quotation); AWT to Bishop Turner, October 1893, item 7433, reel 34 (third quotation). See also AWT to unknown, n.d. [1892?], items 5999 and 6025, reel 29, Tourgee Papers.

(55) AWT to Louis A. Martinet, October 31, 1893, item 7438, reel 34, Tourgee Papers (emphasis in original). Although an appointment to the ninth seat was made in time, it did not affect the eventual 7-1 decision. Justice David J. Brewer did not hear arguments in the case and thus absented himself from deliberations on it.

(56) Ibid. (first quotation); AWT to Bishop Turner, October 1893, item 7433, reel 34, Tourgee Papers (second quotation).

(57) Rodolphe Lucien Desdunes, Our People and Our History, translated and edited by Dorothea Olga McCants (Montreal, 1911; Eng. ed., Baton Rouge, 1973), 147.

(58) AWT to unknown, n.d. [1892?], item 5999, reel 29, Tourgee Papers (quotation); Olsen, Carpetbagger's Crusade, 316-17. Tourgee may have squandered his best chance for success by rejecting the offer of T. Thomas Fortune to have his proposed NCRA journal, the National Citizen, absorb Fortune's African-American newspaper, the New York Age, and employ Fortune as its editor. He explained to Fortune that the new publication "must not be a race journal" and that he feared that a merger of the two might drive away the National Citizen's potential white readership. T. Thomas Fortune to AWT, November 16, 1893, item 7499; and AWT to Thomas Fortune, November 20, 1893, item 7510 (quotation), both on reel 34, Tourgee Papers.

(59) Philadelphia Times, June 18, 1892, item 8251, reel 39, Tourgee Papers.

(60) Soon thereafter, however, Douglass's attitudes would again become more militant. After reading Ida B. Wells's 1892 articles on lynching in the New York Age, he wrote to her explaining that her work had been "a revelation" to him and that he previously "had begun to believe it true that there was increased lasciviousness on the part of [southern[ Negroes." William S. McFeely, Frederick Douglass (New York and London, 1991), 362. Louis Martinet expressed his frustration about Douglass in a letter to Tourgee: "Douglass, Pinchback and the like--what have they ever done that has not been of more profit to them than to their race'? They have gotten rich in fighting the race's battles.... Of course we were not after [Douglass's] money, we wanted his endorsement and moral support rather." Louis A. Martinet to AWT, July 4, 1892, item 6377, reel 30, Tourgee Papers.

(61) AWT to "Madame" [Florence A. Lewis], n.d. [ca. June 1892], item 6297, reel 30, Tourgee Papers.

(62) Thomas W. Griffin to AWT, May 1, 1894, item 7664, reel 36, Tourgee Papers.

(63) See Gaines, Uplifting the Race, xiv-xv, 2-5, and 13-17; and Evelyn Brooks Higginbotham, Righteous Discontent: The Women's Movement in the Black Baptist Church, 1880-1920 (Cambridge, Mass., and London, 1993), 14-15. Albion W. Tourgee, Murvale Eastman: Christian Socialist (New York, 1889).

(64) Booker T. Washington, "Atlanta Exposition Address," in Washington, Up, from Slavery (New York, 1901; repr., New York, 1986), 218-25 (quotation on p. 223). On the Republican Party and the South in the 1890s see Rayford W. Logan, The Betrayal of the Negro from Rutherford B. Hayes to Woodrow Wilson, enl. ed. (New York, 1969), 94-95.

(65) Washington Post, April 14, 1896, quoted in Thomas, ed., Plessy v. Ferguson: A Brief History, 127.

(66) AWT to James C. Walker, n.d. [ca. 1892], item 6502, reel 31, Tourgee Papers.

(67) The draft of his oral arguments can be found in the Tourgee Papers, item 6472, reel 31. Some of this text is repeated verbatim in the Washington Post, April 14, 1896, by a reporter who witnessed the presentation, suggesting that it may be the actual copy that Tourgee read before the Court.

(68) Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1873); United States v. Cruikshank, 92 U.S. 542 (1876); Civil Rights Cases, 109 U.S. 3 (1883). On the evolution of American legal policy toward race after the Civil War see John R. Howard, The Shifting Wind: The Supreme Court and Civil Rights from Reconstruction to Brown (Albany, N.Y., 1999).

(69) See Thomas, ed., Plessy v. Ferguson: A Brief History, 25.

(70) Three scholars who have misread Tourgee's arguments on "whiteness-as-property" are Woodward, American Counterpoint, 224; Bishop, "Plessy v. Ferguson: A Reinterpretation," 127; and Gaines, Uplifting the Race, 29. An interesting comparison of Tourgee's ironic strategy with Jonathan Swift's "A Modest Proposal" can be found in Marcia Beth Bordman, "Dear Old Golden Rule Days: A Study in the Rhetoric of Separate-But-Equal in Roberts v. City of Boston (1849), Plessy v Ferguson (1896), and Brown v. Board of Education (1954)" (Ph.D. dissertation, University of Maryland, 1993), 41-72.

(71) Tourgee, "Brief for Plaintiff in Error," 40 (first quotation), 39 (second and third quotations).

(72) Ibid., 62 (first quotation), 61 (second quotation). For his references to the war see ibid., 49.

(73) Ibid., 59-61 (quotations on p. 60). On this point, Tourgee expanded on Harlan's earlier dissent in the Civil Rights Cases (as well as on Robert Ingersoll's 1883 speech), in which both had deemed segregation a badge of servitude that violated the Thirteenth and Fourteenth Amendments.

(74) Tourgee, "Brief for Plaintiff in Error," 44 (first quotation), 53 (second quotation), and 36 (third quotation).

(75) Ibid., 53 (first quotation), 46 (second, third, and fourth quotations).

(76) Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1873), quoted in A. Leon Higginbotham, Shades of Freedom: Racial Politics and Presumptions of the American Legal Process (New York and Oxford, 1996), 83; Plessy v. Ferguson, 163 U.S. 537 (1896), at 542-43.

(77) Tourgee, "Brief for Plaintiff in Error," 46-47 (all quotations). The Fourteenth Amendment reads, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" [emphasis added]. U.S. Constitution, Amend. 14, sec. 1.

(78) Tourgee, "Brief for Plaintiff in Error," 48 (first quotation), 49 (Cruikshank quotation).

(79) Ibid., 48 (first quotation), 49 (second quotation), 56 (third, fourth, and fifth quotations). On Cruikshank see also Foner, Reconstruction, 530-31.

(80) Tourgee, "Brief for Plaintiff in Error," 50. The Strauder decision had held that a West Virginia law excluding blacks from serving on juries violated the Fourteenth Amendment; Strauder v. West Virginia, 100 U.S. 303 (1880).

(81) Lofgren, Plessy Case, 106 (Hoffman quote); see also Frederick L. Hoffman, "Race Amalgamation," in Thomas, ed., Plessy v. Ferguson: A Brief History, 76-101.

(82) Albion W. Tourgee, "The Eulogy," in A Memorial of Frederick Douglass from the City of Boston (Boston, 1896), 25-67 (quotation on p. 47).

(83) Tourgee, An Appeal to Caesar, 357.

(84) C. Vann Woodward's influential reading of the Plessy case suggested that "this was not a defense of the colored man against discrimination by whites, but a defense of the `nearly' white man against the penalties of color." Woodward, American Counterpoint, 224.

(85) Tourgee, "Brief for Plaintiff in Error," 37.

(86) Ibid., 51 (first quotation), 32 (second quotation) 33 (third quotation); Tourgee, oral argument draft, Plessy v. Ferguson, Tourgee Papers (fourth quotation).

(87) Tourgee, oral argument draft, Plessy v. Ferguson, Tourgee Papers.

(88) Tourgee, "Brief for Plaintiff in Error," 56 (emphasis removed).

(89) Tourgee, oral argument draft, Plessy v. Ferguson, Tourgee Papers (first and second quotations); Tourgee, "Brief for Plaintiff in Error," 36 (third quotation; emphasis in original).

(90) Tourgee, "Brief for Plaintiff in Error," 35 [emphasis in original].

(91) Ibid., 37.

(92) Bordman, "Dear Old Golden Rule Days," 61.

(93) Rochester (N.Y.) Democrat and Chronicle, May 20, 1896; New York Daily Tribune, May 18, 1896, both quoted in Olsen, ed., The Thin Disguise, 123-24 (first and second quotations) and 130 (third quotation).

(94) Plessy v. Ferguson, 163 U.S. 537 (1896), at 543, 549, and 552.

(95) Charles Lofgren has argued that the main shortcomings of the majority opinion were not necessarily those of constitutional doctrine, in which he argues that the decision had a reasonable grounding, but rather in their flawed presentation; see Lofgren, Plessy Case, 172, 190-91, and 197-98. On the other hand, Robert Harris has memorably called the opinion "a compound of bad logic, bad history, bad sociology, and bad constitutional law." Put more simply by A. Leon Higginbotham Jr., it was "a case wrongly decided." Higginbotham, Shades of Freedom, 108-18 (quotation on p. 108); Eric J. Sundquist, To Wake the Nations: Race in the Making of American Literature (Cambridge, Mass., 1993), 237 (Harris quotation).

(96) Plessy v. Ferguson, 163 U.S. 537 (1896), at 551.

(97) Ibid., at 554, 563, 562, 557, and 553.

(98) Ibid., at 559 and 561-62.

(99) Report of Proceedings for the Annulment of Act 111 of 1890 By the Citizens' Committee of New Orleans, La., Folder 13, Box 1, Rousseve Papers, 7-8; Desdunes, Our People and Our History, 141-42 (quotation on p. 142).

(100) "The Growth of the Niagara Movement," Voice of the Negro, III (January 1906), 19-20; Olsen, Carpetbagger's Crusade, 352.

(101) Robert H. Jackson to Mr. Ernest Crawford and Mr. Walter H. Edson, April 4, 1950 (copy in the Tourgee Papers, Chautauqua County Historical Society). Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma Board of Regents, 339 U.S. 637 (1950).

(102) Plessy v. Ferguson, 163 U.S. 537 (1896), at 559; Kluger, Simple Justice, 543-82, Bakke (438 U.S. 265 [1978]) opinions quoted in Kull, 206-8 (quotation on p. 208).

(103) See Derrick Bell, "Property Rights in Whiteness--Their Legal Legacy, Their Economic Costs," in Richard Delgado, ed., Critical Race Theory: The Cutting Edge (Philadelphia, 1995); and Harris, "Whiteness as Property."

(104) Professor Kimberle Crenshaw of UCLA Law School, quoted in "For Black Scholars Wedded to the Prism of Race, New and Separate Goals," New York Times, May 5, 1997, B9.

(105) Kull quoted from his testimony before a congressional subcommittee at the Oversight Hearing on H.R. 2128, the Equal Opportunity Act of 1995 (an anti-affirmative action bill sponsored by Republican Senator Robert Dole); the full text of his statement can be found online at http://www.house.gov/judiciary/228.htm. See also Kull, Color-Blind Constitution, 182-224.

MR. ELLIOTT is a Ph.D. candidate in history at New York University.