In 1892, leaders of the Creole community in New Orleans created the Comité des Citoyens, the Citizens Committee, to confront the Separate Car Act that had been adopted by Louisiana in 1890.

The act ended the prior right of Black and white passengers to sit wherever they chose on trains by requiring all railways to have separate cars or compartments for Black and white passengers. It was one of many Jim Crow actions taken in Louisiana and throughout the South during that era to reverse the gains of Black people during Reconstruction and to re-establish white supremacy and make the South great again.

The strategy adopted by the committee was simple. One of its members would sit in the whites-only compartment, refuse to move, get arrested, and challenge the arrest in a test case in court. The strategy had been used elsewhere by Black activists. It was used, for example, by Elizabeth Jennings in 1854 to change segregated transit laws in New York City. Another Black activist using the strategy was Ida Wells in Memphis, Tenn. in 1884. Frederick Douglass often used the first step of the strategy – simply refusing to move – as he did, for example, in Lynn, Mass., in 1841. His second step was to use publicity rather than litigation to pursue transit policy reform. For others, the second step was transit boycotts as activists did with streetcars in 25 Southern cities between 1900 and 1907.

The Committee in New Orleans was a Creole group. “Creole” has various meanings, but in the case of the committee, members had mixed ancestries that included French, Spanish, Native American, and/or African people. Their skin colors ranged from very light to very dark. For their test case, the committee chose Homer Plessy, who was 7/8ths white and 1/8th Black, a Black man under Louisiana law but able to pass as white throughout his life. The choice seems unusual. It meant that someone had to tell the conductor that Plessy was Black so that he would order Plessy to move. Why did the committee choose the white-looking Plessy?

Plessy made two arguments in his test case that would eventually get to the Supreme Court and become the landmark case of Plessy v. Ferguson. His first argument was based on the Equal Protection Clause of the 14th Amendment: “No state
. . . shall deny to any citizen . . . the equal protection of the laws.” He argued that this clause prohibited the state from adopting a law that segregated the races. As we know, the Supreme Court didn’t buy this argument, deciding instead that states could segregate public facilities and services if they were “equal,” an assessment that courts rarely made.

This argument could have been raised equally well by a Black man who looked white or one who looked Black. But Plessy (and the committee) had an ingenious second argument that could be raised only by a white-looking Black man like himself. That argument challenged an aspect of racism that was even more fundamental than segregation – it challenged the validity of the concept of “race” itself.

Plessy’s argument was based on another clause of the 14th Amendment: “No state shall . . . deprive anyone of property without the due process of law.” Due process requires that a person’s property not be taken arbitrarily (without a valid state reason) and must be compensated for if taken. Plessy argued that “whiteness” is property in our society, and that identifying him as Black was arbitrary and deprived him of his property, his whiteness.

The claim seems quite modern. What Plessy designated as the property of whiteness, we refer to as white privilege. Whether viewed as “property” or as some less tangible set of advantages, whiteness has enormous value in America. It is the inherited reward to white people for their aggressive, 400-year promotion of white supremacy.

The court didn’t buy Plessy’s whiteness argument or get involved in assessing the validity of the concept of race. It simply assumed, for the sake of argument, that “the reputation of belonging to the dominant race is ‘property’ in the same sense (as an inheritance).” Then it concluded that since Plessy was Black under Louisiana law, he had no claim to the property of whiteness. Only white people evicted from the white compartment of a train might have such a claim available. As an aside, it is interesting to note that the U.S. Census listed Homer Plessy as Black in 1910 and white in 1920.

With respect to Plessy’s equal protection argument, the majority concluded that the fallacy of Plessy’s argument was his assumption that segregation “stamps the colored race with a badge of inferiority.” This assumption, it said, wasn’t based on anything in the Railway Act “but solely because the colored race chooses to put that construction upon it.” This same logic is used today to defend Confederate monuments and displays of the Confederate flag.

The lone dissenter in Plessy, Justice Harlan, disagreed vehemently with the majority’s assumption. He said that “colored people” aren’t imagining this badge of inferiority, for the clear purpose of segregated seating was to stigmatize them; and the whole purpose of adopting the 13th, 14th, and 15th Amendments after the Civil War was to prevent the states from legislating this sort of stigma. The law, he argued eloquently, must be colorblind; and he felt that the court’s decision was wrong, would promote racial tension, and would ultimately be overturned – as it was in 1954 by Brown v. Board of Education.

But as eloquent as Harlan was about the unconstitutionality of segregation, he was equally clear about his belief in white supremacy: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power.” He added that he expected this supremacy to last forever. His unapologetic belief landed squarely on the bedrock of the American atrocity – slavery and our longstanding national allegiance to white supremacy.

Sixty years passed before Brown v. Board reversed Plessy and helped launch the Civil Rights era, sometimes called the Second Reconstruction. But the aftermath of that era demonstrates the tenacity of white supremacy. It persists in places such as segregated schools and neighborhoods and in vast inequalities of income and wealth where most white people hardly notice it and most Black people feel it every day.

And it persists in our culture and psyches. Over the years since the Civil Rights Era, we have seen how easily a strategic dog whistler can rally the supremacy troops by simple whistles such as “neighborhood schools,” “law and order,” “welfare cheaters,” “reverse discrimination,” “these monuments are just part of our history,” and “make America great again.”

Our two reconstruction eras were brief and years apart. I was part of the second era and didn’t expect to see another in my lifetime. But if we all can sustain the energy aroused by Black Lives Matter, perhaps our nation can take another crack at confronting our 400-year old American Dilemma.

(Paul Levy lives in Concord.)