Why the Supreme Court Lied in Plessy

58 Pages Posted: 17 Sep 2007

See all articles by David Skillen Bogen

David Skillen Bogen

University of Maryland Francis King Carey School of Law

Abstract

This article examines the citation in Plessy of a dozen cases that the Court said held racial segregation statutes in transport to be constitutional. It argues that none of those twelve cases upheld a segregation statute, but were largely decisions upholding decisions by the carrier under the common law. Justice Brown knew that the cases did not uphold segregation statutes, but he went ahead and used them to bury opposition under the weight of precedent. He knew that he was unlikely to be challenged, and he believed that the common law and the Constitution involved the same principles. The conflation of common law and constitutional provision was possible because the Court had shifted focus in the fourteenth amendment from the privileges and immunities clause to the equal protection clause. But the standards appropriate for governing private behavior may be quite different than those restraining the government, and that message is relevant today.

Keywords: equal protection clause, Plessy

Suggested Citation

Bogen, David Skillen, Why the Supreme Court Lied in Plessy. Villanova Law Review, Vol. 52, No. 3, pp. 101-157, 2007, U of Maryland Legal Studies Research Paper No. 2007-27, Available at SSRN: https://ssrn.com/abstract=1014589

David Skillen Bogen (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-7221 (Phone)

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