Homer Plessy's Forgotten Plea for Inclusion: Seeing Color, Erasing Color-Lines

30 Pages Posted: 21 Aug 2015 Last revised: 1 Jun 2016

Date Written: August 19, 2015

Abstract

Despite the attention given to the Supreme Court’s opinions in *Plessy v. Fergusson* and frequent quotation of Justice Harlan’s dissenting opinion asking the Court to be color-blind, Homer Plessy’s actual claim and his plea are largely forgotten. This forgetfulness is unfortunate, because Homer Plessy speaks to our time with surprising urgency. Plessy did not ask for blindness to the reality of color, he asked the Supreme Court to accept the reality of race and to insist on the inclusion in civil society of every citizen, taking the reality of race and race-prejudice into account.

In the 1890s, when Plessy’s suit was in preparation, the backlash against the first Reconstruction was thirty years old, and on the crest of success. Today, we are thirty years into the backlash against the Civil Rights jurisprudence of the Warren Court. The backlash of Homer Plessy’s day created the Jim Crow regime, drawing a color-line around the formerly enslaved with a pretense of equal treatment. Today, the New Jim Crow is accomplished through mass incarceration and mass deportation; the color-line is a wall, and the imprisoned are invisible. We say “Black lives matter” to bring that reality into view, and ask again to erase the line of exclusion.

Homer Plessy argued not for equality merely, but for inclusion. “Diversity and inclusion” is a motto for today’s civil rights movement, and only changes in thought and language make it difficult for us to see that it could have been the motto of Homer Plessy’s movement as well. He insisted on an inclusive citizenship for persons of all races; diversity and inclusion. Constitutional law should not be blind to individual circumstances, but it should reject arbitrary color-lines that separate and exclude under a pretense of equal treatment.

Keywords: equal protection, Fourteenth Amendment, Black lives matter, affirmative action, Obergefell, Fisher II

Suggested Citation

Novick, Sheldon M., Homer Plessy's Forgotten Plea for Inclusion: Seeing Color, Erasing Color-Lines (August 19, 2015). West Virginia Law Review, Vol. 118, 2016, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2647372

Sheldon M. Novick (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

HOME PAGE: http://www.sheldonnovick.com

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