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Published online by Cambridge University Press: 07 June 2021
The segregation laws known as “Jim Crow” are often understood as legislative efforts to promote White supremacy by shielding White southerners from contact with other races. This was not the case, however. By analyzing early railway segregation laws–in particular, the 1890 Louisiana law that was challenged in Plessy v. Ferguson–this article shows that the first post-Reconstruction segregations laws used an expansive definition of the “white race” as everyone who was not Black. In short, White purity and separation were the pretext, not the purpose, of early Jim Crow laws. Instead, the structure of legal segregation was initially determined by White, Democratic legislators' efforts to isolate and subjugate Black Americans by reinstating the racial logic of slavery, which had divided the world into Black people and everyone else. To achieve this end, White supremacist lawmakers framed laws that strategically integrated “white” train cars, all the while claiming the laws did the opposite.
He thanks Christopher Tomlins, Tejas Narechania, Aubrey Hirsch, Gautham Rao, and the readers at Law and History Review for their encouragement and perceptive feedback. This article benefitted immeasurably from the time and thought that they invested in it. Larissa Davis, Mark Elliott, Ian Haney López, Adam Mazel, and Behrang Seraj also provided generous assistance by responding to inquiries, reading drafts, discussing ideas, or helping with sources. Finally, he acknowledges an unrepayable debt to Anita Norich and Deborah Dash Moore, two remarkable scholars and teachers.
1. Harris, Cheryl I., “Whiteness as Property,” Harvard Law Review 106 (1993): 1736–37CrossRefGoogle Scholar.
2. J. Allen Douglas is representative in emphasizing “[s]outhern jurists’ . . . . yearning to constrain the meaning and circulation of whiteness.” “The ‘Most Valuable Sort of Property’: Constructing White Identity in American Law, 1880–1940,” San Diego Law Review 40 (2003): 945.
3. Gross, Ariela J., “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108 (1998): 178CrossRefGoogle Scholar; and Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford: Oxford University Press, 2009), 121Google Scholar. I use “Asian Americans” and similar compound terms to avoid, as far as possible, words such as “Asian” that frame their designees as non-American. I capitalize the “B” in “Black” and the “W” in “White” (except when referencing statutory language) in acknowledgement that Black—and, likewise, White—“is not a natural category but a social one—a collective identity—with a particular history.” Kwame Anthony Appiah, “The Case for Capitalizing the B in Black,” Atlantic, October 26, 2020, https://perma.cc/ZS2R-A7KT. Finally, I use the term “people of color” in its modern sense as “an all-inclusive term that incorporates African Americans, Latina/os, Asians and Pacific Islanders, and Native Americans . . .” Vidal-Ortiz, Salvador, “People of Color,” in Encyclopedia of Race, Ethnicity, and Society, ed. Schaefer, Richard T. (Los Angeles: SAGE, 2008)Google Scholar, 2:1038.
4. Gross, Ariela, What Blood Won't Tell: A History of Race on Trial in America (Cambridge, MA: Harvard University Press, 2008), 216CrossRefGoogle Scholar.
5. Nell Irvin Painter, The History of White People (New York: W. W. Norton, 2010), 234; and Beth Lew-Williams, The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America (Cambridge, MA: Harvard University Press, 2018), 1–6.
6. Act of July 10, 1890, no. 111, § 1, 1890 La. Acts 152, 153. These laws were so similar that one contemporary observer noted that separate coach acts, despite “differing from one another in minor particulars,” were “in general modelled after the Louisiana statute of 1890.” William B. Shaw, “American State Legislation in 1891,” Review of Reviews 4 (1891): 409.
7. Barbara Bair, “Though Justice Sleeps: 1880–1900,” in To Make Our World Anew, vol. 2, A History of African Americans from 1880, ed. Robin D. G. Kelley and Earl Lewis (Oxford: Oxford University Press, 2000), 25 (emphasis added).
8. Jigna Desai and Khyati Y. Joshi, “Discrepancies in Dixie: Asian Americans and the South,” introduction to Asian Americans in Dixie: Race and Migration in the South, ed. Khyati Y. Joshi and Jigna Desai (Urbana: University of Illinois Press, 2013), 4; and Leslie Bow, Partly Colored: Asian Americans and Racial Anomaly in the Segregated South (New York: NYU Press, 2010), 2, 5.
9. Bow, Partly Colored, 4; Stephanie Hinnershitz, A Different Shade of Justice: Asian American Civil Rights in the South (Chapel Hill: UNC Press, 2017), 6; and Daniel Bronstein, “Segregation, Exclusion, and the Chinese Communities in Georgia, 1880s–1940,” in Asian Americans in Dixie, 108.
10. Malinda Maynor Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation (Chapel Hill: UNC Press, 2010), 12.
11. Bow, Partly Colored, 1, 4.
12. See, for example, Thomas Sowell, Discrimination and Disparities (New York: Basic Books, 2019), 48.
13. Ian Haney López, White by Law: The Legal Construction of Race, Rev. 10th Anniversary Ed. (New York: NYU Press, 2006), 20; and Pascoe, What Comes Naturally, 8.
14. See, for example, Rice v. Gong Lum, 104 So. 105, 108 (Miss. 1925) (assigning Chinese American children to Mississippi's “colored” schools), affirmed in Gong Lum v. Rice, 275 U.S. 78 (1927).
15. Harris, “Whiteness as Property,” 1736.
16. Shu-Ju Ada Cheng, “Jim Crow,” in Encyclopedia of Race, Ethnicity, and Society, ed. Richard T. Schaefer (Thousand Oaks: SAGE, 2008), 1:795.
17. Barbara Y. Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (Cambridge: Cambridge University Press, 2001), 255–56, 323; and Richard Archer, Jim Crow North: The Struggle for Equal Rights in Antebellum New England (New York: Oxford University Press, 2017), 92–95.
18. Gilbert Thomas Stephenson, “The Separation of the Races in Public Conveyances,” American Political Science Review 3 (1909): 181.
19. Welke, Recasting American Liberty, 337 n 48.
20. U.S. Const. amend. XIV, § 1.
21. Civil Rights Act of 1875 § 1, 18 Stat. 335–337.
22. 109 U.S. 3 (1883).
23. Act of Feb. 6, 1891, ch. 185, § 1, 1890–91 Ala. Acts 412, 412; Act of July 10, 1890, ch. 111, § 1, 1890 La. Laws 152, 153; Act of Mar. 2, 1888, ch. 27, § 1, 1888 Miss. Laws 48, 48; Act of Mar. 27, 1891, ch. 52, § 1, 1891 Tenn. Acts 135, 135; and Act of Mar. 4, 1899, ch. 384, § 1, 1899 N.C. Pub. Laws 539, 539–40. North Carolina reversed the order of “separate” and “equal,” and punctuation varied among the laws.
24. Act of Oct. 21, 1891, ch. 751, § 1, vol. I 1890–91 Ga. Acts 157, 157; Act of May 24, 1892, ch. 40, § 1, 1893 Ky. Acts 63, 63; Act of Mar. 17, 1904, ch. 109, § 1, 1904 Md. Laws 186, 186; Act of Feb. 19, 1898, ch. 483, § 1, 1898 S.C. Acts 777, 777; Act of Apr. 16, 1889, ch. 108, 1889 Tex. Gen. Laws 132; and Act of Jan. 30, 1900, ch. 226, § 1, 1899–1900 Va. Acts 236–37. Florida's 1887 law referred to “respectable persons of color.” Act of May 19, 1887, ch. 3743 § 1, 1887 Fla. Acts 116, 116. Arkansas's separate coach act referred to the “white and African races,” while Oklahoma's referred to the “white and negro races.” Act of Feb. 23, 1891, ch. 17, § 1, 1891 Ark. Acts 15, 15–16; and Act of Dec. 18, 1907, ch. 15, § 1, 1907–08 Okla. Sess. Laws 201, 201–02.
25. State v. Treadaway, 126 La. 300, 305 (La. 1910).
26. Charles W. Chesnutt, “The Term Negro,” in Essays & Speeches, ed. Joseph R. McElrath, Jr., Robert C. Leitz, III, and Jesse S. Crisler (Stanford, CA: Stanford University Press, 1999), 566.
27. Act of Apr. 16, 1889, ch. 108, 1889 Tex. Gen. Laws 132.
28. Act of Mar. 29, 1891, ch. 41, § 1–2, 1891 Tex. Gen. Laws 44.
29. Fla. Rev. Stat. tit. 1, ch. 1, § 1 (1892).
30. Ga. Civil Code tit. 1, ch. 1, art. 3, § 1820 (1895).
31. Act of Feb. 23, 1891, ch. 17, § 4, 1891 Ark. Acts 15, 17; and Act of Dec. 18, 1907, ch. 15, § 3, 1907–08 Okla. Sess. Laws 201, 2002.
32. Ala. Criminal Code ch. 182, art. 11, § 5377 (1897).
33. Act of Feb. 19, 1898, ch. 483, 1898 S.C. Acts 777.
34. Act of Feb. 23, 1891, ch. 17, § 4, 1891 Ark. Acts 15, 17.
35. Okla. Const. art. XXIII, § 445.
36. Tex. Rev. Stat. tit. 10, ch. 1, art. 327 (1879).
37. In re Halladjian, 174 F. 834, 843 (C.C.D. Mass. 1909).
38. “Current Legislation and Litigation,” Railway and Corporation Law Journal, August 15, 1891, 136, 138.
39. Quoted in “The Scrap Heap,” Railroad Gazette, August 21, 1891, 585.
40. “A Law that Works Both Ways,” Indianapolis Journal, September 10, 1891, 4.
41. “The Jim Crow Car,” Crittenden Press, October 13, 1892, https://perma.cc/3T86-XGVB.
42. “Rode in Jim Crow Cars. Colored Delegates to the Nashville Convention Feel Aggrieved,” Washington Post, January 5, 1892, 8.
43. Gross, What Blood Won't Tell, 217. See also Painter, History of White People, 390.
44. Act of March 26, 1790, ch. 3, 1 Stat. 103; Immigration and Nationality Act of 1952, § 311, ch. 2, 66 Stat. 239; and Act of July 14, 1870, ch. 254 § 7, 256.
45. Haney López, White by Law, 1.
46. Pascoe, What Comes Naturally, 8.
47. See generally Lew-Williams, The Chinese Must Go.
48. Department of the Interior, Census Office, Compendium of the Eleventh Census: 1890, Part I, Population (Washington, DC: Government Printing Office, 1892), ciii–civ. P. B. S. Pinchback held the governorship from December 9, 1872, until January 13, 1873. Robert Fay, “Pinchback, P. B. S.,” Africana: The Encyclopedia of the African & African American Experience, 2nd ed., ed. Kwame Anthony Appiah and Henry Louis Gates, Jr. (Oxford: Oxford University Press, 2005), 2:517.
49. “Harmonizing the Democracy,” Daily Picayune, April 1, 1888, 6; and “A Great Danger Threatens,” Daily Picayune, November 5, 1888, 3.
50. “The Head of the Republican State Ticket,” Daily Picayune, January 26, 1888, 4; and “Our Great Question,” Daily Picayune, September 8, 1889, 4.
51. “Race Separation,” Louisiana Democrat, January 9, 1889, https://perma.cc/9S7N-5FTH.
52. “Race Trouble,” Lake Charles Echo, October 4, 1889, https://perma.cc/GHF3-72GT.
53. “Invoking the Nation Against the South,” Daily Picayune, November 1, 1888, 6.
54. James K. Hogue, Uncivil War: Five New Orleans Street Battles and the Rise and Fall of Radical Reconstruction (Baton Rouge: Louisiana State University Press, 2011), 107–12, 116.
55. Congressional Record: Containing the Proceedings and Debates of the Forty-Third Congress, Second Session (Washington, DC: Government Printing Office, 1875), 3:1924.
56. Journal of the Senate of the Unites States of America, Being the Second Session of the Forty-Third Congress (Washington, DC: Government Printing Office, [1875]), 106.
57. Congressional Record Containing the Proceedings and Debates of the Fiftieth Congress, First Session (Washington, DC: Government Printing Office, 1888), 19:8989.
58. Hogue, Uncivil War, 3.
59. “New World Migrations,” Daily Picayune, June 20, 1889, 4.
60. See, for example, “Project to Colonize the Negroes,” Daily Picayune, October 9, 1889, 4; Wm. P. Calhoun, “Negro Colonization,” Daily Picayune, October 9, 1889, 6; “Moving Southward,” Daily Picayune, October 12, 1889, 4; and “Colonizing the Negroes,” Daily Picayune, October 19, 1889, 4.
61. “The Negro Question in Congress,” reprinted in Opelousas Courier, December 21, 1889, https://perma.cc/4T68-K22D.
62. “Invoking the Nation Against the South,” Daily Picayune, November 1, 1888, 6.
63. Blair L. M. Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (Chapel Hill: UNC Press, 2010), 62.
64. Act of July 10, 1890, no. 111, 1890 La. Laws 152.
65. The terms “Mongolians” and “Malays” referred to people from different regions of Asia. Chinese Americans were grouped among the “Mongolian race.”
66. Official Journal of the Proceedings of House of Representatives of the State of Louisiana (hereafter La. House Journal) (Baton Rouge: Advocate, 1890), 181.
67. P. B. S. Pinchback, A. E. P. Albert, A. S. Jackson, S. T. Clanton, T. A. Wilson, E. Lyon, J. T. Newman, I. E. Mullon, T. B. Stamps, Paul Trevigne, James Lewis, Laurent Auguste, R. L. Desdunes, L. A. Martinet, J. F. Marshall, W. S. Wilson and J. L. Minor, “Protest of the American Citizens’ Equal Rights Association, of Louisiana, against Class Legislation,” Southwestern Christian Advocate, June 5, 1890, 4. The protest was also printed in the La. House Journal, 127–28.
68. La. House Journal, 201; “Political Review,” Southwestern Christian Advocate, July 17, 1890, 4.
69. La. House Journal, 203–4. The derogatory term “Dago” referred to Italian Americans.
70. Official Journal of the Proceedings of the Senate of the State of Louisiana (Baton Rouge: Advocate, 1890), 410.
71. Journal of the House of Representatives, State of Arkansas (Morrilton: Pilot, 1891), 187.
72. Journal of the Senate of Texas (Austin: Smiths, Hicks & Jones, 1889), 111.
73. New Orleans Crusader, July 19, 1890, quoted in Steve Luxenberg, Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation (New York: W. W. Norton, 2019), 394.
74. Kelley, Right to Ride, 65–70; Luxenberg, Separate, 392–94, 410–17; and Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 30–31.
75. Mark Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (Oxford: Oxford University Press, 2006), 264.
76. New Orleans Daily Crusader, June 1892, quoted in Keith Weldon Medley, We as Freemen: Plessy v. Ferguson (Gretna: Pelican Publishing, 2003), 146.
77. Luxenberg, Separate, 431–32; Kelley, Right to Ride, 74, 79.
78. Brief for Plaintiff in Error at *37–38, Plessy v. Ferguson, 163 U.S. 537 (1896) (No. 210), 1893 WL 10660 (hereafter “Plessy Brief [Tourgée],” “Plessy Brief [Walker],” or “Plessy Brief [Tourgée/Walker]”). The lawyers’ sections of the brief, along with a co-authored section, are published together.
79. Plessy Brief (Walker), *37–38.
80. Plessy Brief (Tourgée/Walker), *4.
81. Plessy Brief (Tourgée), *8–9.
82. Ibid., *9–10 (emphasis removed).
83. Plessy Brief (Walker), *38.
84. Ibid., *39–40.
85. Ibid., *51.
86. Argument of A. W. Tourgée, 1896, item 6472, Albion Winegar Tourgée Collection, Chautauqua County Historical Society.
87. In the Civil Rights Cases, the Supreme Court found that the Thirteenth Amendment, which banned slavery and involuntary servitude, also gave Congress the power to enact legislation to prevent the “badges and incidents of slavery.” 109 U.S. 3, 20 (1883); U.S. Const. amend. XIII, § 1–2.
88. Brief for Plaintiff in Error at *7–8, Plessy v. Ferguson, 163 U.S. 537 (1896) (No. 210), 1896 WL 13990.
89. Ibid., *13.
90. Brief for Defendant in Error at *38, Plessy v. Ferguson, 163 U.S. 537, 543 (1896) (No. 210), 1896 WL 13992 (U.S.) (Appellate Brief).
91. Ibid., *45.
92. Mark Golub, “Plessy as ‘Passing’: Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson,” Law & Society Review 39 (2005): 576.
93. Plessy v. Ferguson, 163 U.S. 537, 552 (1896).
94. Plessy, 561 (Harlan, J., dissenting).
95. Jennifer R. Nájera, The Borderlands of Race: Mexican Segregation in a South Texas Town (Austin: University of Texas Press, 2015), 28.
96. The national census of 1890 counted only 333 “Chinese,” 39 “Japanese,” and 627 “Civilized Indians” among Louisiana's 1,118,587 residents. Compendium of the Eleventh Census, x, 470.
97. La. House Journal, 332.
98. Bronstein, “Segregation,” 119.
99. Welke, Recasting American Liberty, 348–49; and C. Vann Woodward, The Strange Career of Jim Crow, Comm. Ed. (Oxford: Oxford University Press: 2002), 24.
100. Kelley, Right to Ride, 37; Act of July 10, 1890, no. 111, § 3, 1890 La. Acts 152, 153.
101. “On the Right Track,” Opelousas Courier, March 7, 1891, https://perma.cc/E5AS-SY5Z.
102. Cheng, “Jim Crow,” 795.
103. La. House Journal, 201.
104. Ibid., 202–3.
105. I. B. Scott, “Separate Railway Cars for White and Colored Passengers in Texas,” Southwestern Christian Advocate, May 16, 1889.
106. W. S. Scarborough, “A Step Backward,” Frank Leslie's Illustrated Newspaper, September 19, 1891, 98.
107. Quoted in Shankman, Arnold, Ambivalent Friends: Afro-Americans View the Immigrant (Westport, CT: Greenwood Press, 1982), 51Google Scholar.
108. Chesnutt, Charles W., The Marrow of Tradition (Boston: Houghton, Mifflin, 1901), 59Google Scholar.
109. Boyd, R. H., The Separate or “Jim Crow” Car Laws or Legislative Enactments of Fourteen Southern States (Nashville: National Baptist Publishing Board, 1909), 5Google Scholar.
110. Grossman, James R., Land of Hope: Chicago, Black Southerners, and the Great Migration (Chicago: University of Chicago Press, 1991), 17Google Scholar.
111. La. House Journal, 202–3.
112. Hinnershitz, Different Shade of Justice, 5.
113. Pinchback et al., “Protest of the American Citizens’ Equal Rights Association, ” 4.
