ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, May 14, 1996 TAG: 9605140025
SECTION: EDITORIAL PAGE: A-5 EDITION: METRO
SOURCE: KENNETH WARREN
ONE HUNDRED years ago this coming Saturday, on May 18, 1896, the U.S. Supreme Court by an 8-1 vote issued its infamous ``separate but equal'' decision. Racial segregation had triumphed in the nation's highest tribunal.
Watching their appeal go down in defeat were two attorneys, Albion W. Tourgee and Louis A. Martinet. They had orchestrated Homer A. Plessy's constitutional challenge to Louisiana's 1890 Separate Car Law, which required black and white railroad passengers to ride in separate cars. /{REST} Yet despite their defeat, Tourgee and Martinet emerge as the true heroes of this rather dismal moment in U.S. judicial history. Tourgee, a white man who had staunchly supported racial equality as a Reconstruction jurist, journalist and novelist, and Martinet, a black attorney, physician and newspaper editor, had both risked life, reputation and personal fortunes in their fight for interracial democracy. Both men saw what we too often forget today: that social justice meant curtailing the advantage that the wealthy and the privileged enjoy in our political system.
In recognizing this, Tourgee and Martinet were even more astute than Justice John M. Harlan, the man who is generally regarded as the hero of the Plessy decision. Justice Harlan cast the only dissenting vote on the court. His written opinion is rightly venerated for its principled assertion of equality before the law. ``Our Constitution,'' Harlan asserted, ``is color-blind, and neither knows nor tolerates classes among citizens.''
Powerful and eloquent as Harlan's words were, however, his reasoning combined a curious mixture of constitutional egalitarianism with white economic and social supremacy.
``Every true man has pride of race,'' Harland wrote. And while the Constitution itself should take no account of this racial pride, Harlan assured the court, the white race could remain pre-eminent ``in prestige, in achievements, in education, in wealth and in power'' by holding ``true to its great heritage'' and clinging ``fast to the principles of constitutional liberty.''
In upbraiding his Supreme Court colleagues, Harlan had been able to see through what he termed the ``thin disguise'' of the majority's use of the word ``equal'' to sanction what it knew was inequality. He unfortunately failed to see that his own position fostered something equally pernicious - the possibility that a colorblind Constitution was no more than a thin disguise for maintaining white privilege and dominance.
The men who gave Harlan the opportunity to write his opinion were not so blind. Tourgee, the Reconstruction war-horse, urged the court to consider the hard fact that whites were advantaged as a class: ``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.'' Given this reality, wasn't the condition of being white ``the master-key that unlocks the golden door of opportunity?''
In making his point, Tourgee had not overlooked the fact that whites as well as blacks were often poor and disenfranchised, especially in the South, which was suffering from the devastation of the Civil War. Indeed, throughout the battle against legal segregation, both he and Martinet insisted on making their attack on white supremacy interracial and interregional. Both men were convinced that whites in the North and the South would also see that the struggle for racial justice was a struggle on behalf of the underprivileged, regardless of race.
Their position had evidence to support it. The civil-rights movement had already given the nation the 13th, 14th and 15th amendments to the U.S. Constitution. As a result, white and black men without property were enjoying more liberty than they had at any previous moment in the history of this nation. Moreover, the attempt to bring blacks within the social polity had focused attention on the importance of public schooling in a region riddled with illiteracy. Social opportunities that had been in the past a dim dream were now closer to reality.
Falsely buoyed by this evidence, Tourgee viewed the Plessy case less as a matter to be decided by the court than as a means of getting a public hearing for the larger principles of justice at stake. He wrote privately to Martinet that Plessy provided them an opportunity to ``get the ear of the Country, and argue the matter fully before the people first.''
Looking back, we can see how wrong Tourgee was. The people - white people, that is - were more likely to side with the court majority. Most acquiesced in the court's decision, and segregation remained the law in the South until the modern civil-rights movement swept its legal justification away.
We are still, however, wrestling with the thornier problem raised by Tourgee and Martinet - the tangled relations of wealth, politics, opportunity and race. The controversy surrounding affirmative action and legislative redistricting are just two such examples. And the current hostility to these programs indicates that ``putting the matter fully'' before the people a century later would result in the dismantling and invalidation of many of these proposed remedies.
It is also clear that much of this dismantling would be done under the banner of racial fairness, on the premise that these measures, by taking note of racial differences, tend to perpetuate rather than eradicate racism and reverse discrimination. ``Colorblindness'' is once again in vogue.
With the history of Plessy in mind, one can't help wondering whether we are merely watching our nation don another ``thin disguise.'' But rather than wait another 60 years to set aright the injustices perpetuated in the name of equality and fairness, maybe this time we can learn a different history that begins with the questions made central by Tourgee and Martinet: Can a nation ac hieve social justice when wealth and power remain disproportionately in the hands of one class of its citizens? And if not, then what ought we to do about it?
Kenneth Warren, an associate professor of English at the University of Chicago, is author of ``Black and White Strangers: Race and American Literary Realism.''
- Knight-Ridder/Tribune
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