Permissions to Hate: Antiracism and Plessy

Abstract

Plessy v. Ferguson may not be as dead we think. Its infamous separate-but-equal rule is buried, but the case gave life to more than its rule, and its subtler implications live on in modern ideological and legal movements. This Article reexamines the political and cultural developments that preceded Plessy to reveal those legal and symbolic implications. Although not all of them have been explicitly identified and repudiated, they have been at least implicitly rejected by the Supreme Court, Congress, and the states in the years since Brown v. Board of Education.

And yet, what is most surprising about Plessy’s implications is how familiar they look to a modern audience, even one unfamiliar with Plessy's historical context. They look like the implications of a popular ideology called “Antiracism.” This Article examines Antiracism and finds that it revives Plessy’s implications. Like Plessy before it, Antiracism abandons the idea that it is worthwhile or possible to create a society in which each person is treated equally regardless of race. Like Plessy, Antiracism says that the government should classify citizens based on race and that discrimination on that basis can promote the public good. Like Plessy, Antiracism implies that the public good is defined by popular wisdom about race, no matter whether that wisdom is factually, morally, or constitutionally sound. And like Plessy, Antiracism holds that the Fourteenth Amendment does not forbid racial discrimination if it is done in service of that popular wisdom. The ideology may look well-intentioned, but it joins Plessy as another entry in a long and regrettable list of what C. Vann Woodward called "permissions-to-hate."

Keywords: Constitution, constitutional law, Fourteenth Amendment, racism, antiracism, Plessy