A Reluctant Apology for Plessy: A Response to Akhil Amar

11 Pages Posted: 31 Jul 2012

See all articles by Barry McDonald

Barry McDonald

Pepperdine University - Rick J. Caruso School of Law

Date Written: July 2012


In this article, written for the 2011 Pepperdine Law Review Symposium discussing five candidates for the worst U.S. Supreme Court decisions in history, Professor McDonald undertakes the "unenviable task" of defending the Court's 1896 decision in the case of Plessy v. Ferguson. This defense, a "reluctant apology," is comprised of a constitutional and historical analysis of the Court's majority opinion. Professor McDonald begins by criticizing the content, tone, and apparent intention of Justice Brown's majority opinion in Plessy, characterizing it as a needlessly offensive and divisive opinion. Then, the analysis shifts toward placing the opinion in the historical context of the time. Under this analysis, the Supreme Court of this era clearly lacked both the power and the inclination to force a significant change of public opinion on a social issue like segregation. Professor McDonald posits that, although slavery had been formally abolished by the end of the nineteenth century, the racial attitudes among whites throughout the country were still significantly hostile toward blacks, which would have strongly discouraged the Supreme Court from invalidating a Southern segregation statute.

Professor McDonald then analyzes the opinion in accordance with several different constitutional interpretation principles. First, he argues that an originalist analysis does not support the idea that the framers and ratifiers of the Fourteenth Amendment intended the Equal Protection Clause to outlaw segregated facilities. He then argues that principles of federalism would also have discouraged such a result, since they required the court to defer to the stated legislative purpose of the state that had passed the law. Next, he claims that the principles of judicial precedent also pointed towards the result reached by the Court. Finally, he examines the issue from a living constitutionalist approach, determining that striking down the statute in question would have provoked a violent conflagration in the South of that era, the potential harm of which outweighed any positive result of correcting the moral wrongs represented by Louisiana’s segregation law. Professor McDonald concludes by expressing his agreement with noted legal historians that the result reached by the Court was not surprising and probably to be expected given the prevailing legal and social context of the times.

Keywords: Plessy, Supreme Court, Constitution, African Americans, Race, Racial, Segregation, Public Opinion, Equal Protection Clause, Federalism, Legislative Purpose, Precedent, South, Moral, Louisiana, Legal History, Social

Suggested Citation

McDonald, Barry, A Reluctant Apology for Plessy: A Response to Akhil Amar (July 2012). Pepperdine Law Review, Vol. 39, 2011, Pepperdine University Legal Studies Research Paper No. 2012/24, Available at SSRN: https://ssrn.com/abstract=2120239

Barry McDonald (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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