The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution - REVIEW

by Jesse Wegman

As a young lawyer, James Wilson made a celebrated case for American independence in an essay that inspired the famous words “We hold these truths to be self-evident, that all men are created equal.” He wrote the first draft of the Constitution and, along with the more famous James Madison, played perhaps the essential role in its ultimate creation.

Wilson believed that the people are the ultimate source of all power. He argued successfully for a strong central government and a powerful presidency, and fought unsuccessfully for a direct vote for the president and the Senate. Appointed as a justice to the first Supreme Court, he was later brought down by reckless land speculation and died of malaria in the back room of a North Carolina tavern while hiding from his creditors.

Instead of being remembered as one of the nation’s great political thinkers, Wilson was virtually written out of history. But in The Lost Founder, Wegman brings to life the most prescient of the earliest patriots and makes a convincing argument that scandal should not diminish the life and impact of a brilliant, complicated man whose vision for his country could not be more relevant today.

Jesse Wegman is a Senior Fellow at the Brennan Center for Justice, where he writes about Supreme Court reform and constitutional amendments. From 2013 to 2025, he was a member of the New York Times editorial board, covering law and politics, the Supreme Court, democracy, and electoral reforms. His first book, Let the People Pick the President: The Case for Abolishing the Electoral College, was published in 2020.

Celadon Books
ISBN-13: 978-1250851079

Before the Movement: The Hidden History of Black Civil Rights - REVIEW

by Dylan C. Penningroth 

A prize-winning scholar draws on astonishing new research to demonstrate how Black people used the law to their advantage long before the Civil Rights Movement.

The familiar story of civil rights goes like this: once, America’s legal system shut Black people out and refused to recognize their rights, their basic human dignity, or even their very lives. When lynch mobs gathered, police and judges often closed their eyes, if they didn’t join in. For Black people, law was a hostile, fearsome power to be avoided whenever possible. Then, starting in the 1940s, a few brave lawyers ventured south, bent on changing the law. Soon, ordinary African Americans, awakened by Supreme Court victories and galvanized by racial justice activists, launched the civil rights movement.

In Before the Movement, acclaimed historian Dylan C. Penningroth brilliantly revises the conventional story. Drawing on long-forgotten sources found in the basements of county courthouses across the nation, Penningroth reveals that African Americans, far from being ignorant about law until the middle of the twentieth century, have thought about, talked about, and used it going as far back as even the era of slavery. They dealt constantly with the laws of property, contract, inheritance, marriage and divorce, of associations (like churches and businesses and activist groups), and more. By exercising these “rights of everyday use,” Penningroth demonstrates, they made Black rights seem unremarkable. And in innumerable subtle ways, they helped shape the law itself―the laws all of us live under today.

Penningroth’s narrative, which stretches from the last decades of slavery to the 1970s, partly traces the history of his own family. Challenging accepted understandings of Black history framed by relations with white people, he puts Black people at the center of the story―their loves and anger and loneliness, their efforts to stay afloat, their mistakes and embarrassments, their fights, their ideas, their hopes and disappointments, in all their messy humanness. Before the Movement is an account of Black legal lives that looks beyond the Constitution and the criminal justice system to recover a rich, broader vision of Black life―a vision allied with, yet distinct from, “the freedom struggle.”

Dylan C. Penningroth is a professor of law and history at the University of California, Berkeley. A MacArthur Prize fellow and author of The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South, he lives in Kensington, California.

Dylan Penningroth is the winner of the PEN Oakland Josephine Miles Award, Winner of the Beveridge Award, American Historical Association, Winner of the Littleton-Griswold Prize, American Historical Association, Winner of the John Philip Reid Award, American Society for Legal History, Winner of the Order of the Coif Book Award, Winner of the Charles Sydnor Award, Southern Historical Association, Winner of the Scribes Book Award, Winner of the Merle Curti Social History Award from the Organization of American Historian, Winner of the Ellis W. Hawley Prize from the Organization of American Historians, Winner of the David J. Langum, Sr. Prize in American Legal History, Winner of the James Willard Hurst Prize, Finalist for the Cundill History Prize, Shortlisted for the Stone Book Award, Museum of African American History, Shortlisted for the Mark Lynton History Prize, Columbia Journalism School, and Shortlisted for the Ralph Waldo Emerson Award, Phi Beta Kappa.

Liveright
ISBN-13: 978-1324093107

Allow Me to Retort: A Black Guy’s Guide to the Constitution - REVIEW

by Elie Mystal

Allow Me to Retort is an easily digestible argument about what rights we have, what rights Republicans are trying to take away, and how to stop them. Mystal explains how to protect the rights of women and people of color instead of cowering to the absolutism of gun owners and bigots. He explains the legal way to stop everything from police brutality to political gerrymandering, just by changing a few judges and justices. He strips out all of the fancy jargon conservatives like to hide behind and lays bare the truth of their project to keep America forever tethered to its slaveholding past.

Mystal brings his trademark humor, expertise, and rhetorical flair to explain concepts like substantive due process and the right for the LGBTQ community to buy a cake, and to arm readers with the knowledge to defend themselves against conservatives who want everybody to live under the yoke of eighteenth-century white men. The same tactics Mystal uses to defend the idea of a fair and equal society on MSNBC and CNN are in this book, for anybody who wants to deploy them on social media.

You don’t need to be a legal scholar to understand your own rights. You don’t need to accept the “whites only” theory of equality pushed by conservative judges. You can read this book to understand that the Constitution is trash, but doesn’t have to be.

Elie Mystal is The Nation’s legal analyst and justice correspondent, an Alfred Knobler Fellow at the Type Media Center, and the legal editor of the More Perfect podcast on the Supreme Court for Radiolab. He is a graduate of Harvard College and Harvard Law School, the former executive editor of Above the Law, a former associate at Debevoise & Plimpton, and a frequent guest on MSNBC and Sirius XM. The author of Allow Me to Retort (The New Press), he lives in New York.

The New Press
ISBN-13: 978-1620976814

The Transition: Interpreting Justice from Thurgood Marshall to Clarence Thomas - REVIEW

by Daniel Kiel

Every Supreme Court transition presents an opportunity for a shift in the balance of the third branch of American government, but the replacement of Thurgood Marshall with Clarence Thomas in 1991 proved particularly momentous. Not only did it shift the ideological balance on the Court; it was inextricably entangled with the persistent American dilemma of race. In The Transition, this most significant transition is explored through the lives and writings of the first two African American justices on Court, touching on the lasting consequences for understandings of American citizenship as well as the central currents of Black political thought over the past century.

In their lives, Thurgood Marshall and Clarence Thomas experienced the challenge of living and learning in a world that had enslaved their relatives and that continued to subjugate members of their racial group. On the Court, their judicial writings―often in concurrences or dissents―richly illustrate the ways in which these two individuals embodied these crucial American (and African American) debates―on the balance between state and federal authority, on the government's responsibility to protect its citizens against discrimination, and on the best strategies for pursuing justice. The gap between Justices Marshall and Thomas on these questions cannot be overstated, and it reveals an extraordinary range of thought that has yet to be fully appreciated.

The 1991 transition from Justice Marshall to Justice Thomas has had consequences that are still unfolding at the Court and in society. Arguing that the importance of this transition has been obscured by the relegation of these Justices to the sidelines of Supreme Court history, Daniel Kiel shows that it is their unique perspective as Black justices – the lives they have lived as African Americans and the rooting of their judicial philosophies in the relationship of government to African Americans – that makes this succession echo across generations.

Stanford University Press
ISBN-13: 978-1503630659

Is Democracy Dying? A House Divided by Ibram X. Kendi

IS DEMOCRACY DYING? A HOUSE DIVIDED 
By Ibram X. Kendi

     In 1858, Abraham Lincoln warned that America could not remain "half slave and half free." Today, the country remains divided by racism - and the threat is as existential as it was before the Civil War.
     He stood on the outer edge of the sidewalk, hands clasped behind him-handcuffed, perhaps, by the immensity of the moment. He knew the city of Springfield, Illinois, well. But on June 16,1858, Abraham Lincoln was learning his new place in American politics, and possibly dreading what it now demanded. He was about to deliver a speech accepting the nomination as the Republican Party's candidate for the U.S. Senate. In it, he planned to diagnose a malignant divide many of his fellow Republicans believed was benign.
The speech was too radical, his friends had told him, as friends had told American revolutionaries a century earlier. Those revolutionaries had pressed on with their cause. Summoning the courage to press on with his, Lincoln may have reminded himself that ignoring the divide would be more radical still.
     Delegates stared at Lincoln as they made their way to the Illinois state capitol. Patrons stared at him from the nearby dry-goods store owned by his friend John Williams. Lincoln believed that the slave states were staring at him, too-were eyeing the northern states as well as the western territories. With the passage of the Kansas-Nebraska Act of 1854, the election of the expansionist President James Buchanan in 1856, and the Supreme Court's Dred Scott decision of 1857, all three branches of the federal government had acquiesced to the march of slaveholders across the nation. 
     Lincoln left the solitude of the sidewalk. He walked across the square, entered the House of Representatives, and stood before the more than 1,000 delegates of the Illinois Republican State Convention. "A house divided against itself cannot stand," he declared. "I believe this government cannot endure, permanently half slave and half free... It will become all one thing or all the other." 
     The prophetic speech propelled Lincoln onto the national stage. Three years later, as president, he was commanding an army that battled to keep the house standing. His opponent, the Confederate States of America, was fighting to destroy the house and to build a new one safe for slavery.
     Lincoln saved the old house, with the decisive assistance of black troops. Though he didn't live to see it, the ratification of the Thirteenth Amendment in 1865 ensured that the United States would be permanently free. But the racism that buttressed slavery remained in the living constitution of American policy and the American mind. The house remained divided, remained separate and unequal.
     It remained divided today. One hundred sixty years after Lincoln warned of the dangers of disunion brought on by slavery, Americans must bear witness to racism's destructive power. This government cannot endure, permanently half racist and half antiracists.

RACISM - Trace the issues rending American politics to their root, and more than often than not you'll find soil poisoned by racism.

     Divided the nation in two, politically and geographically. The threat racism poses to the contemporary United States is more insidious for being more diffuse and more veiled. But trace the issues rending American politics to their root, and more often than not you'll find soil poisoned by racism. None of these issues is likely to tear down the republic as slavery nearly did, but the danger is no less existential. 
     Some of the assaults that racism has mounted on American society are well known and recall Lincoln's era in their brazenness. "I do, not regret what I did," Dylann Roof journaled six weeks after killing nine black churchgoers in Charleston, South Carolina. America may not be on the precipice of civil war, but the events in Charlottesville, Virginia, last year revealed that there are white nationalists who are prepared for violent conflict, convinced that demographic shifts will deprive white Americans of their power and privilege. They came out into the public square chanting, "You will not replace us!" and "Blood and soil!" 
     The racism motivating other divisions in American democracy is only somewhat more subtle. Racist resentment propelled to the presidency a man who seems intent on jackhammering the unfinished foundation of the house Lincoln risked everything to save. Donald Trump's administration has encouraged the incarceration, deportation, or exclusion of astonishing numbers of nonwhite people. On Trump's watch, Immigration and Customs Enforcement agents are being pushed to deport undocumented immigrants. The president regularly whips his followers into a frenzy by calling for a wall along America's southern border, threatening to shut down the government if he does not get his way. For a brief moment a few years ago, politicians on both sides of the aisle at least feinted toward criminal justice reform. But those energies have largely faded, and Attorney General Jeff Sessions has ordered federal prosecutors to pursue the toughest possible charges and sentences in all cases. 
     And yet it is the least recognizable of racism's assaults that are most portentous-and their beginnings predate the Trump presidency. Those people of color not imprisoned or deported are robbed of their political power by other means. In 2013, Chief Justice John Roberts justified a rollback of federal voting regulations by writing, in Shelby Counry v. Holder, that "our country has changed" since the passage of the Voting Rights Act in 1965. But by Election Day 2016, 14 states had instituted new voting restrictions. Our country has changed-but only in the way votes are suppressed. In the old days, before the Voting Rights Act, states and counties suppressed voting by men and eventually women of color through property requirements, literacy tests, and poll taxes-while tacitly condoning employer intimidation and Ku Klux Klan violence. Now states and counties suppress votes through early-voting restrictions, limits on absentee and mail-in ballots, poll closures, felon disenfranchisement, and laws requiring voter to have a photo ID. 
     Voters of color who can't be kept from the polls are herded into districts where their ballots, in effect, don't count. As the percentage of white Americans has declined, 
Latino and black populations have been manipulated on maps to keep white Republicans in positions of power. In emails sent in 2010, Texas map drawers used the abbre­viation OHRVS, or "Optimal Hispanic Republican Voting Strength." The map drawers were seeking to create districts that would appear representative of the state's growing Hispanic population but would nevertheless continue to safely elect white Republicans. In 2011, GOP operatives in North Carolina secretly schemed to alter the makeup of the state's congressional delegation, which at the time was seven Democrats and six Republicans. The goal was to get to 10 Republicans and three Democrats, in part by incorporating "all the significant concentrations of minority voters in the northeast into the first district," as one map designer, Tom Hofeller, wrote at the time. (The state's delegation soon became 10 Republicans and three Democrats.) In 2016, when a federal court deemed the maps discriminatory, state Republicans unabashedly tapped Hofeller to draw new "10-3" maps, assuring the public that this time race would not be "among the criteria." 
     Such chicanery robs Americans of their franchise. It also robs American democracy of its health. Civic engagement and collaboration are the lifeblood of any republic. Racist policies inhibit dialogue and undermine efforts at bipartisanship. They pit citizens against one another. Rather than locating the real sources of economic hardship and inequality, for instance, racist politicians encourage Americans to blame their struggles on neighbors who don't look or act like them, who are supposedly stealing their jobs or subsisting on their hard-earned tax money. 
     How long will Americans continue to believe in the ideal of equality and freedom while their nation's racist policies maintain inequality? How long will nonwhite Americans be willing to live as "second-class citizens" (to borrow Malcolm X's phrase), deprived of basic rights like the franchise? At some point, the victims of such policies and their allies will lose faith in their government, if they haven't already. They will come to see the American experiment as a failure-a house irrevocably divided against itself. 

     When he delivered his speech in 1858, Lincoln admonished his audience, and the North as a whole, for imagining that free states and slave states could continue to cohabitate peacefully. In 2018, many Americans imagine that a similar neutrality between racism and antiracism is possible. But only an embrace of antiracism can save the union. Antiracist ideas are built on the bedrock of racial equality. They recognize that any observed disparities between groups are the product not of hierarchy among races but of racist systems that create and perpetuate inequities. Antiracist policies seek to close the gaps in rights, resources, and opportunities that racist policies have opened and maintain. 
The Voting Rights Act was once a paragon of antiracism. For decades, segregationists had disenfranchised southern black voters through measures cleverly disguised to hide their racist intent. Legislators came to regard these measures as discriminatory because of their inequitable outcomes. Congress banned the measures and required all changes to voting laws in specific states and counties primarily in the South-to be approved by federal officials. Unlike so many failed civil-rights bills in American history, this provision placed the burden of proof on the policy maker to show that a policy wasn't racist, and not on the victim to show that the policy maker intended to be racist. 
     When the Supreme Court stripped federal preclearance from the Voting Rights Act in 2013, it removed one of the last major antiracist policies from federal law. The Fourteenth Amendment, ratified 150 years ago, is no longer antiracist, if it ever was. That amendment was supposed to guarantee equal protection under the law for all Americans. Yet, to ensure its passage in 1866, congressional Republicans refused to define equal protection-or privileges or immunities, or due process of law-and thus left both racists and anti­racists a claim on their meaning. 
     The racists have secured much of the Fourteenth Amendment's inheritance, from the Supreme Court's first interpretation of it in the 1873 Slaughterhouse Cases, which limited its protections, to the modern cases that have upheld racist policies and struck down antiracist ones. In 1978, in Regents of the University of California v. Bakke, the Court curtailed affirmative action. In 1987, in Mccleskey v. Kemp, it sanctioned the racially ­disproportionate impact of the death penalty in Georgia. In 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court placed new restrictions on school-desegregation programs. 
     Justice Harry Blackmun would shudder to see how the Fourteenth Amendment is interpreted today. "In order to get beyond racism, we must first take account of race," he wrote in his opinion in Bakke 40 years ago. "There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot-we dare not-let the Equal Protection Clause perpetuate racial supremacy." But that is precisely what has happened, and the result has been every bit as dire as Blackmun foresaw. 
     Today, only a renewed commitment to antiracist policies can save the endangered American project. The alternative is a governing system that becomes all racist and wholly illegitimate. The result may not be an 1860s ­style civil war. But, if allowed to proceed far enough, racism will ultimately destroy the American idea. And it will lead to contentiousness and resentment and, yes, violence that will make today's polarization seem quaint by comparison. 
     I believe, as Lincoln did, that we can repair our divided house. "I do not expect the house to fall," Lincoln said. "But I do expect it will cease to be divided." Even at the height of slavery's power, Lincoln believed that Americans could make the nation free. We can and must believe in our ability to make the nation antiracist despite the ascendancy of a racist president who pursues a racist agenda. Did we brave all then to falter now?

Ibram X. Kendi is the director of the Antiracist Research and Policy Center at American University, and the National Book Award-winning author of Stamped From the Beginning: The Definitive History of Racist Ideas in America. His next book, How to Be an Antiracist, will be published in 2019. 
The Atlantic, October 2018

The Supreme Court Case That Enshrined White Supremacy in Law - How Plessy v. Ferguson shaped the history of racial discrimination in America

The Supreme Court Case That Enshrined White Supremacy in Law
How Plessy v. Ferguson shaped the history of racial discrimination in America

by Louis Menand

     White nationalist, white supremacist, Western civilization—how did that language become offensive?” the Iowa congressman Steve King inquired of a Times reporter last month. After the remark blew up, King explained that by “that language” he was referring to “Western civilization.” He also said that he condemned white nationalism and white supremacy as an “evil and bigoted ideology which saw in its ultimate expression the systematic murder of six million innocent Jewish lives.” (It’s unclear whether King thinks of Jews as nonwhite.)
     However, to answer the congressman’s original question: only after a long struggle. Seventeen states had laws banning interracial marriage, which is pretty much the heart of the doctrine of white supremacy, until 1967, when the Supreme Court declared them unconstitutional. From the Compromise of 1877, which ended Reconstruction, to the Civil Rights Act of 1964 and the Voting Rights Act of 1965, American race relations were largely shaped by states that had seceded from the Union in 1861, and the elected leaders of those states almost all spoke the language of white supremacy. They did not use dog whistles. “White Supremacy” was the motto of the Alabama Democratic Party until 1966. Mississippi did not ratify the Thirteenth Amendment, which outlawed slavery, until 1995.
     How did this happen? How did white people in a part of the country that was virtually destroyed by war contrive to take political control of their states, install manifestly undemocratic regimes in them, maintain those regimes for nearly a century, and effectively block the national government from addressing racial inequality everywhere else? Part of the answer is that those people had a lot of help. Institutions constitutionally empowered to intervene twisted themselves every which way to explain why, in this matter, intervention was not part of the job description. One such institution was the Supreme Court of the United States.
     The case of Martha Lum is typical. She was the daughter of Jeu Gong Lum, who came to the United States from China in 1904. After being smuggled across the Canadian border by human traffickers, he made his way to the Mississippi Delta, where a relative ran a grocery store. In 1913, he married another Chinese immigrant, and they opened their own store. They had three children and gave them American names.
     In 1923, the family moved to Rosedale, Mississippi, and Martha, then eight years old, entered the local public school. According to Adrienne Berard, who tells the Lums’ story in “Water Tossing Boulders” (2016), nothing seemed amiss for the first year, but when Martha returned to school after the summer the principal relayed the news that the school board had ordered her to be expelled. Public schools in Mississippi had been racially segregated by law since 1890, and her school educated only whites. The board had decided that Martha was not white and, consequently, she could not study there.
The Lums engaged a lawyer, who managed to get a writ of mandamus—an order that a legal duty be carried out—served on the school board. The board, which must have been very surprised, contested the writ, and the case went to the Supreme Court of Mississippi, which ruled that the board had the right to expel Martha Lum on racial grounds. That part was not so surprising.
     The court acknowledged that there was no statutory definition of the “colored race” in Mississippi. But it argued that the term should be construed in the broadest sense, and cited a case it had decided eight years earlier, upholding the right of a school board to expel from an all-white school two children whose great-aunts were rumored to have married nonwhites.
     That decision, the court said, showed that the term “colored” was not restricted to “persons having negro blood in their veins”—apparently since the children involved were in fact white. Martha Lum did not have “negro blood,” either, but she was not white. She could attend a “colored” school. Mississippi’s separate-schools law, the court explained, was enacted “to prevent race amalgamation.” Then why place an Asian-American child in a school with African-American children? Because, according to the court, the law was intended to serve “the broad dominant purpose of preserving the purity and integrity of the white race.”
     The Lums appealed to the U.S. Supreme Court. At issue was the Fourteenth Amendment, which had been ratified in 1868. The first clause of that amendment is the most radically democratic clause in the entire Constitution, much of which was designed to limit what the Founders considered the dangers of too much democracy. It decrees that any person born in the United States is a citizen, and that states may not abridge the privileges or immunities of citizens; nor deprive them of life, liberty, or property without due process of law; nor deny them the equal protection of the laws. The United States has two founding documents: the Constitution, which is a legal rule book, and the Declaration of Independence, a manifesto with no force of law. The Fourteenth Amendment constitutionalized the Declaration.
     The U.S. Supreme Court decision in the case, Lum v. Rice, was handed down in 1927, three years after Congress passed the Johnson-Reed immigration act, which barred all Asians from entering the United States. Was Martha Lum a citizen? The Supreme Court said she was. Was she being denied the equal protection of the laws? The Court said that she was not, and cited a series of precedents in which courts had upheld the constitutionality of school segregation.
     It was true, the Court conceded, that most of those cases had involved African-American children. But it couldn’t see that “pupils of the yellow races” were any different, and the decision to expel such pupils was, it held, “within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.” Even though the Mississippi court had stated that the purpose of the school-segregation law was to preserve “the purity and integrity of the white race,” it was not a denial of equal protection to nonwhites. The Lums, of course, knew from firsthand observation what it meant to be classified as “colored” in Mississippi, and they did what a lot of African-American Mississippians were also doing—they left the state.
     The decision in Lum v. Rice was unanimous. The opinion of the Court was delivered by the Chief Justice, William Howard Taft, a former President of the United States; among the Justices who heard the case were Oliver Wendell Holmes, Jr., and Louis Brandeis. One of the precedents the Court quoted prominently in support of its decision was a case it had decided thirty-one years earlier—Plessy v. Ferguson.
     After Dred Scott, Plessy is probably the most notorious decision involving race in the history of the United States Supreme Court. It is the case identified with the principle of “separate but equal”—the theory that segregation is not per se discrimination. Plessy is the decision the Supreme Court had to overturn, in Brown v. Board of Education, in 1954, to declare that school segregation violated the equal-protection clause of the Fourteenth Amendment.
     From our perspective, therefore, Plessy looks huge. So it’s revealing that, as the journalist Steve Luxenberg tells us in “Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation,” little note was taken of the decision at the time. Even when principal figures in the case died, years later, their obituaries made no mention of it. It’s revealing because it suggests that Plessy should never have been brought in the first place. The decision did not create a new justification for racial segregation; it locked an old one into place.
     Plessy was a test case. It challenged a law that Louisiana passed in 1890, the Separate Car Act, requiring railroads to maintain separate cars for white and “colored” riders—in order, according to the act, “to promote the comfort of passengers.” The penalty for breaking the law was a fine or a short prison sentence. Transportation had been segregated in parts of the country, both North and South, since long before the Civil War, and many cases had been brought by passengers complaining of discrimination, with mixed success. But in those cases segregation was a matter of company policy. In the Louisiana case, the constitutionality of a state law was at issue.
     When the South began instituting Jim Crow, after the end of Reconstruction, laws mandating separate cars on trains appeared across the region. One of the first was passed in Florida, in 1887, followed by Mississippi, in 1888, and Texas, in 1889. When Louisiana passed its separate-cars law, a New Orleans lawyer and newspaper editor named Louis Martinet—his mother was born a slave; his father, a Belgian, bought her freedom—formed the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, and set about building a case.
     First, Martinet approached the Louisville and Nashville Railroad, which agreed to act as a silent partner. It did not do so out of altruism. From a business point of view, segregation represented a cost—the cost of providing separate facilities for black customers. It would have been cheaper for the railroads if the state had mandated integration instead.
     Then Martinet recruited a plaintiff, Daniel Desdunes, a young mixed-race musician whose father was on the Committee. On February 24, 1892, Desdunes boarded a train in New Orleans with a ticket for Mobile, Alabama, and sat in a car reserved for whites. He was duly arrested and charged, his case set to be heard by the criminal-court judge in New Orleans, John Ferguson. All had gone as planned, but then, in another case, the Louisiana Supreme Court ruled that the Separate Car Act did not apply to interstate passengers. Because Desdunes had been going to another state, he could not be required to use a separate car, and the prosecution dropped the case.
     The interstate-travel issue was a persistent wrinkle in the Jim Crow era, and it inspired some impressive judicial contortions. In 1878, for example, the U.S. Supreme Court struck down a Reconstruction-era Louisiana statute requiring integrated facilities on steamboats. Under the Constitution, only Congress has the power to regulate interstate commerce. Because riverboats stopped in many states, the Court said, they could not be bound by the regulations of one state.
     You might assume that a state law requiring segregated facilities on interstate carriers would be subject to the same prohibition. In 1890, however, the Supreme Court held otherwise. It declared that an interstate train was subject to a Mississippi law requiring separate cars for “colored” and white passengers for as long as the train was in Mississippi. The Court somehow parsed its way around its own earlier decision.
     But now, because of the Louisiana Supreme Court’s ruling, Martinet needed another volunteer scofflaw. Fortunately, he had one at hand: Homer Plessy. Like Desdunes, Plessy was light-skinned—“fair-skinned enough to cause confusion,” as Luxenberg puts it, suggesting that Plessy might have been accustomed to passing, as many nominally “colored” people in New Orleans did. He was twenty-nine years old, married, and in the shoemaking business. Like Desdunes, he followed the script. On June 7, 1892, he boarded a train, one travelling only within the state of Louisiana, and sat in the car for white passengers. When the conductor asked if Plessy was colored, he said yes, and was removed from the train and booked. (Train conductors were in a ridiculous position: even if the law required trains to have separate cars, riders could still sue the conductor for misclassifying them.)
     Plessy came before the same Judge Ferguson, who ruled that, since there had been no claim that the cars for white and black passengers were not “equal,” there was no constitutional issue. The Louisiana Supreme Court agreed, adding that, if the Separate Cars Act were declared unconstitutional, many other state laws—on separate schools, intermarriage, and so forth—would be affected. The U.S. Supreme Court finally heard the case four years later, and on May 18, 1896, it issued its opinion.
     As Luxenberg points out, the concept “separate but equal” (the phrase the Court used in Plessy was actually “equal but separate”) was hardly a novelty. It had been a customary way to throw out complaints about segregation since before the Civil War. In Plessy, the Court added a gloss that became almost as famous as the phrase itself: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority,” it said. “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” As Charles Black, a Yale law professor, wrote of these sentences many years later, “The curves of callousness and stupidity intersect at their respective maxima.”
     The assumption that separate facilities for blacks—railroad cars, steamboat berths, schools—were not inferior is a good example of the Supreme Court’s formalism in that period of American law. Everyone knew the assumption was false. The Jim Crow train car was sometimes called “the dirt car,” and “colored” schools were often shacks. It was also absurd to claim that the “badge of inferiority” was a black person’s construction. In Dred Scott, the Chief Justice, Roger Taney, had said that, constitutionally, black people were “a subordinate and inferior class of beings,” with “no rights which the white man was bound to respect.”
     In Brown v. Board of Education, the Warren Court would cite psychological studies showing that black children are harmed by segregation. That’s not something a nineteenth-century court would have considered appropriate (and some people did not consider it appropriate in Brown). In cases like Plessy v. Ferguson, the Court looked to the text of the statute. If the statute did not prescribe unequal conditions, then, legally, conditions were not unequal.
     The Justices in the Plessy case were aware of the repercussions that a robust interpretation of the Fourteenth Amendment would have, of course. Political realities, as always, put a constraint on judicial reasoning. The Supreme Court in the early twentieth century did decide cases in favor of African-American and Asian-American plaintiffs, but it mostly kept its hands off state racial regulations.
     When Louis Martinet formed his Citizens’ Committee to Test the Constitutionality of the Separate Car Law, he wrote to Frederick Douglass and asked for his support. Douglass refused. He said he could not see how the case could help things. Douglass was proved correct. The decision was the worst possible outcome, and the one Plessy’s lawyers had feared. It stamped a constitutional seal of approval on state-mandated racial segregation. The case may not have received much press attention at the time, but over the next fifty years it was cited in thirteen Supreme Court opinions.
     It’s true that in 1890, when the Separate Car Act was passed, Southern race relations were still somewhat in flux. Blacks voted and were politically active. The Louisiana legislature that passed the act had sixteen African-American members. And the composition of the Supreme Court is subject to change; the lawyers for Plessy might have hoped that they would draw a winning hand.
   By 1896, though, the endgame was clearly in view. Six years earlier, Mississippi had become the first state to contrive laws to disenfranchise black voters, rather than rely solely on terror and fraud. Other states followed, although extralegal methods remained in use, and, by the end of the century, the work of disenfranchisement was complete. There were 130,334 African-Americans registered to vote in Louisiana in 1896; in 1904, there were 1,342. In Virginia that year, the estimated black turnout in the Presidential election was zero.
     As for the Supreme Court, it had already made the character of its commitment to civil rights clear. In 1873, the Court ruled that the Fourteenth Amendment did not apply to most state laws. And in 1883 it struck down the anti-discrimination provisions of the Civil Rights Act of 1875—Congress’s last attempt to address civil rights until 1957.
“When a man has emerged from slavery,” the Court said in 1883, “there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.” Slavery had been abolished for just eighteen years, but the Court felt that that was enough time for African-Americans to get on their feet.
     As Richard White tells us in his excellent volume on Reconstruction and the Gilded Age, published as part of the also excellent Oxford History of the United States, between seventy-eight and a hundred and sixty-one black men were lynched every year in the decade from 1890 to 1899. It was the height of wishful thinking in 1896 to imagine that the Court would undergo a conversion in the case of Homer Plessy. The only consolation Plessy’s advocates had was that, when they brought their case, there were a hundred others also challenging segregation laws in the courts. If it hadn’t been Plessy, it would have been someone else.
     Luxenberg has chosen a fresh way to tell the story of Plessy. “Separate” is a group biography of three figures in the case: Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.
     Edmund Wilson, in “Patriotic Gore” (1962), his book on the literature of the Civil War, describes Tourgée as “an obstinate man, physically and morally courageous, with bad judgment in practical matters and possessed by an intransigent idealism,” and Luxenberg’s portrait is much the same. Tourgée fought in the Union Army and was badly wounded. After the war, he moved with his wife and daughter to Greensboro, North Carolina, where he was active politically and as a writer and speaker on behalf of Republican policies. He called himself “a carpet-bagger of the very worst sort.”
     But by 1877, the year the Army was pulled out of the South and Reconstruction ended, he had come to believe that the whole effort was an exercise in hubris—which would be the line on Reconstruction for decades afterward, and the line taken in two of the most popular Hollywood movies ever made: “The Birth of a Nation” (1915) and “Gone with the Wind” (1939). In 1879, Tourgée published a novel whose title expressed his judgment on Reconstruction—“A Fool’s Errand.” The book was compared with “Uncle Tom’s Cabin” and became a big best-seller. It made Tourgée famous and, for a short time, wealthy.
     Tourgée’s empathy for the Southern point of view did not erode his commitment to racial justice. After leaving North Carolina, he moved to upstate New York and began writing a column under the name Bystander, advocating for racial equality. At Martinet’s invitation, he served as an adviser on the Plessy case, and was instrumental in devising the legal strategy. He presented the case in oral argument before the Supreme Court.
Luxenberg is kinder in his treatment of that argument than other commentators have been. Instead of the standard claim that segregation was a denial of equal protection, Tourgée argued that it was a denial of the Fourteenth Amendment’s guarantee of due process. A person’s reputation is property, he said, like an inheritance; and “the most precious of all inheritances is the reputation of being white.” In being denied seating in the white car, Plessy was deprived of his property without due process of law.
     The theory is less cockeyed than it sounds. It turns on the absence of a definition of “colored” in Louisiana law. Tourgée was saying to the Justices: Louisiana law gives state officials complete discretion in determining racial identity. Homer Plessy looks a lot like you. If someone with authority to do so classified you as nonwhite, would you view the situation with equanimity? No, you would think that you had been deprived of something without due process of law.
     This is basically the situation the Lums would complain of three decades later. In both cases, the argument was both an appeal to the racial prejudices of the Justices and essentially a racist argument in itself. Whatever the calculation, it went over the heads of the Court. Justice Brown, in his opinion, expressed bafflement. Plessy was colored, he said. How could he be deprived of something—“the reputation of being a white man”—that he never had?
     Richard Kluger, in his landmark history of Brown v. Board of Education, “Simple Justice” (1975), called Justice Brown “one of the Court’s dimmer lights,” and nothing Luxenberg tells us suggests that this was unfair. Brown was from Lee, in western Massachusetts. He went to Yale, then pursued a legal career in Detroit. Like most Northerners, he was a Unionist, not an abolitionist, and he paid a substitute to take his place in the war rather than be drafted, as was perfectly legal. He married a woman with a large inheritance and cultivated a high style of living. He campaigned for Ulysses S. Grant in the 1868 Presidential election. Grant gave him a federal judgeship in 1875, and he was appointed to the Supreme Court by Benjamin Harrison in 1890.
     Brown’s goals in life, Luxenberg says, were “ascent, dignity, money, stature.” He almost certainly saw his opinion in Plessy as a routine disposition of a familiar challenge. What gave his opinion significance was its sweeping justification for segregation laws, and its timing, right at the moment that Jim Crow descended like a cage on the South.
The establishment of Jim Crow was not simply a matter of laws suppressing African-American voting and segregating schools and transportation, or of a pattern of social practices that became ingrained. Jim Crow was a regime that was created over and over again. In 1930, the city of Birmingham made it illegal for a black person and a white person to play dominoes or checkers together. In 1932, Atlanta prohibited amateur baseball clubs of different races from playing within two blocks of each other. In 1935, Oklahoma required the separation of races when fishing or boating. In 1937, Arkansas segregated its horse-racing tracks. Jim Crow required a constant reminder of who was in charge. Its mania for racial separatism was insatiable.
     Harlan, the dissenter in Plessy, came from a family with a long history in Kentucky politics. His father was a U.S. congressman; his grandson, also John Marshall Harlan, became an Associate Justice on the Warren Court. Kentucky was a border state—it allowed slavery but did not secede—and Harlan began his career as a pro-slavery Unionist. He led a regiment against rebel forces in Kentucky, but he and his family had owned slaves, and he condemned the Thirteenth Amendment as “the overthrow of Constitutional liberty.”
     As Luxenberg shows us, Harlan built his reputation mainly by following the political lead of others, but after he was appointed to the Supreme Court, in 1877, he became more independent. He was the only card in the judicial deck that Martinet and Tourgée could count on. He had filed the sole dissent in the so-called Civil Rights Cases in 1883. He had dissented when the Court upheld the Mississippi law mandating segregated cars on interstate trains, in 1890. He would later dissent, along with Oliver Wendell Holmes, Jr., in the Court’s pro-business ruling in Lochner v. New York (1905).
     Harlan’s Plessy dissent seems unequivocal. “In the eye of the law,” he says, “there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” He saw as well as Douglass did the long-term effect of the Court’s ruling, warning, “The judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.” When John F. Kennedy addressed the nation on civil rights from the Oval Office, in 1963—the speech that initiated the creation of the Civil Rights Act of 1964—he quoted from Harlan’s dissent.
     Harlan’s conception of color blindness had limits, however. “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States,” he wrote in his dissent. “Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” It seemed to him a blatant example of how arbitrary the Louisiana separate-cars statute was that it would permit “a Chinaman [to] ride in the same passenger coach with white citizens,” while forbidding African-Americans to do so. This head-spinning obiter dictum about the racial status of the Chinese helps explain why Holmes once compared Harlan’s mind to “a powerful vise the jaws of which couldn’t be got nearer than two inches to each other.”
     “Separate” is deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.
     Luxenberg skillfully works the military and the political background into his narrative. Still, despite ample quotations from letters and diaries, the three principals retain a sepia quality. They seem stiff, earnest, florid—Victorian. And there is a lot of biographical backstory. It takes four hundred pages to get to Homer Plessy; the argument and the decision are over after just twenty pages, and then the book abruptly ends. The afterlife of the case gets no real attention. Brown v. Board of Education receives a passing mention in a brief epilogue summarizing the post-Plessy lives of Brown, Harlan, and Tourgée.
     And it does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men. The temptation is understandable. Tourgée, Brown, and Harlan left large archives; Martinet left nothing. Even Tourgée’s letters to Martinet working out their legal strategy are lost; we only have copies of four of them that Tourgée kept. Little is known about Homer Plessy outside his role as a test-case plaintiff. But, if we are trying to understand the Plessy case as a human story, Martinet and Plessy, and millions of other African-Americans, are the ones who took the risks and suffered the consequences.
     “Separate” is a different way to tell the story, but it does not give us a new story. It doesn’t help us with the big historical questions about the persistence of Southern racism after the Civil War. Those questions are central to David A. Bateman, Ira Katznelson, and John S. Lapinski’s “Southern Nation: Congress and White Supremacy After Reconstruction,” a fine-grained and valuable scholarly analysis. The authors argue that “rendering the South as peripheral to the history of the United States minimizes the extent to which the South was ‘co-creator of the nation’s history’ and obscures the ways in which the ideas and practices underpinning this racial order were projected across the United States.”
     As many historians have pointed out, one of the reasons the South was able to exercise a stranglehold on race relations in national politics was the supervention of the famous three-fifths clause, once the focus of abolitionist attacks on the Constitution. When the former slaves were counted as full persons, the former slave states gained twenty congressional seats, a twenty-five-per-cent bump. They also gained votes in the Electoral College. They suppressed the votes of their African-American residents, then got full representational credit for them.
     But where was the political will in the rest of the country? Separation of the races did not originate in the slave South. The nature of the institution made that impractical, if not impossible. As Luxenberg says—repeating one of the main points of C. Vann Woodward’s classic study “The Strange Career of Jim Crow,” first published in 1955—segregation began in the North, where it was the product not of the practice of slavery but of Negrophobia. In 1835, Alexis de Tocqueville wrote, “The prejudice of race appears to be stronger in the states that have abolished slavery than in those where it still exists; and nowhere is it so intolerant as in those states where servitude has never been known.” This helps explain why the majority opinion in Plessy was by a man from Massachusetts who had no experience with slavery, and the dissenter was a man from a slave state who had once owned slaves himself.
     After 1900, the South had Jim Crow, a legal regime of separatism, but the rest of the country had ghettos, redlining, gerrymandering, quota and exclusion systems, and the artifice of the local school district. De-facto discrimination—we now call it “institutional racism” or “structural racism”—is much harder to address. It requires more of people than just striking down a law. ♦

Louis Menand, a New Yorker magazine staff writer since 2001, was awarded the National Humanities Medal in 2016.
The New Yorker magazine, February 4, 2019. This article appears in the print edition of the February 4, 2019, issue, with the headline “In the Eye of the Law."