Plessy v. Progressives
On June 7, 1892, Homer Plessy bought a first-class train ticket in Louisiana, boarded the train and sat in the whites only section. Plessy was arrested as he and the members of the Committee of Citizens had intended. Plessy was tried in Louisiana courts, convicted and fined $25 by Judge John Ferguson for his crime. The motives for Plessy’s action had been to create test case to challenge segregation in the South that was undermining the advances blacks had gained from the emancipation and Reconstruction. Plessy and the Committee of Citizens appealed Ferguson’s ruling to the state supreme court and, eventually, the US Supreme Court. The Supreme Court of the United States rejected the appeal of Plessy and the Committee, issuing the infamous Plessy v. Ferguson decision that paved the way for Jim Crow laws in the South meant to hold black people as second class citizens under the concept of “separate but equal.”
On Wednesday, January 5, 2022, Louisiana Governor John Bel Edwards pardoned Plessy posthumously for his supposed crime. Laws mandating “separate but equal” treatment have been largely eliminated beginning with the Brown v. the Board of Education ruling in 1954 even though the Plessy v. Ferguson ruling has never been directly overruled. The pardon of Plessy was long overdue, but the importance of this case continues to reverberate.
To our 21st century minds it is inconceivable that human beings could so contort the words of the US Constitution and its Amendments as to totally contravene the intentions of the people that drafted the Fourteenth Amendment. From our perspective it appears that the Court was influenced more by popular opinion in that more prejudiced era, than by the intent of the Framers of the Constitution and the people who drafted the 14th Amendment.
But the intent of the Framers of the Constitution and its Amendments still appears to be under attack when it comes vaccine mandates and other government policies favored by the progressive left. Ignoring constitutional limits on government power Justice Elena Kagan said about legal challenges to President Biden’s vaccine mandate, "Nearly a million people have died. I don't mean to be dramatic here. I'm just sort of stating facts. And this is the policy that is most geared to stopping all this." And Justice Stephen Breyer exclaimed, “Three quarters of a million new cases yesterday! That's 10 times as many as when OSHA put (out) this ruling. Is that what you're doing now, to say it's in the public interest in this situation to stop this vaccination rule with nearly a million new cases every day? I mean, to me, I would find that unbelievable."
Covid 19 is a terrible scourge, and the government needs to do something about it. But the things that the federal government can do are limited to only those that the Constitution empowers it to do. Justices Kagan and Breyer do not cite under what authority the Government should act. President Biden is attempting to use the existing bureaucratic power of the Occupational Health and Safety Administration to enforce the vaccine mandate. I am no constitutional legal scholar, but I am pretty sure that the legislation creating and empowering OSHA does not mention vaccine mandates. President Xi Jinping may have authority to mandate vaccines and order lockdowns, but it is not clear that President Biden does.
The progressive left wants the US government to be empowered to do many things in addition to issuing vaccine mandates and finds the Supreme Court to be an impediment to their goals. They don’t like the checks and balances that the Founders placed on the federal government. They have gained the White House and obtained a slim majority in Congress but lack the power to pass legislation to authorize these mandates. And they hope that the Supreme Court will agree to their power grab. They don’t want a Supreme Court that constrains the power of the federal government to implement their progressive goals and they are willing to eliminate every institution or tradition that stands in their way, whether filibuster, Electoral College or Supreme Court.
But the Supreme Court succumbed to popular opinion in 1896 when it issued its opinion on Plessy v. Ferguson, now considered to be one of the worst decisions ever made. The progressives believe that our lives will be made better by adhering to the fickle and malleable popular opinion that they attempt to manipulate with offers of new entitlements and free benefits. But a Supreme Court untethered to the Constitution, or a Senate not bound to developing a consensus will be no different from the popular opinion as expressed in the House and will provide no check on rash policies and no balance to protect minority opinions.
It took many civil rights marches, bus boycotts and diner sit-ins to overcome the concept of separate but equal. Doctor Martin Luther King paid for the color blind cause with his life. Many others, blacks and whites, also paid with their lives to end segregation. But segregation is making a strong comeback.
One hundred and thirty years after Homer Plessy was arrested for having the temerity to sit in an all-white section of a railroad train, black activists are re-constituting an antiracist vision of segregation. They are demanding all black dormitories in US universities. And they are demanding safe spaces where only minorities can gather. Recently, the state of New York announced that Covid treatments will be allocated based on race and that whites may be barred from certain treatments.
The concept of a color-blind society is being discarded by people of color at the urging of the progressive left. Identity politics is based on dividing people along the basis of racial, ethnic, gender or other differences. And intersectionality, the combining of multiple identities, only further divides and marginalizes people. Each identity demanding different treatment and different rights.
It is ironic. Homer Plessy was an octoroon, meaning he had one black great grandparent. During Jim Crow, even a single drop of Negro blood made a person black. So, Plessy was barred from the all-white section of the train. The one drop rule is also endorsed by Ibram X. Kendi in his book, How to be an Antiracist. It is indeed ironic, because the policy that Plessy was convicted of violating is now being endorsed by the very people he (along with Martin Luther King and many others) was fighting for in his protest.