Notes on Plessy v. Ferguson and Lochner v. New York
The Supreme Court as Final Arbiter and the Rise of Judicial History
Introduction: the Supreme Court shapes daily life by defining citizens’ rights, constraining Congress and state powers, delimiting presidential authority, and balancing national vs. state power.
Early history (1789–1801): George Washington’s difficulty finding justices; Court seen as noncoequal arm in the 1780s–1790s; first Chief Justice John Jay, and Associate Justice John Rutledge leave for other posts.
Article III (Constitution): judicial power vested in the Supreme Court and inferior courts as Congress may establish; the description was initially seen as bare-bones.
John Marshall (appointed 1801) gives life to constitutional phrases and makes the Court the final arbiter of constitutional meaning.
Over years, what the Court says defines major constitutional meanings (e.g., what interstate commerce, free speech, and equal protection mean) and guides historical development.
Court’s jurisdiction: not all questions are justiciable; need a case or controversy before the Court can decide a matter; litigants bring real disputes with real people (e.g., Marbury, Dred Scott, Myra Bradwell, Abrams, Gobitis, Brown v. Board era).
New constitutional history (late 1970s–1980s): emphasis on social, economic, and political contexts behind cases; scholars like E. S. Corwin and Willard Hurst; later entries by law/historians to tell the stories behind the cases, not just the holdings.
The author’s aim: tell stories behind landmark cases that continue to resonate (privacy, free speech, race, women, Native Americans, gays, criminal rights). Rationale for case selections and narrative approach.
Core idea: the Constitution’s flexibility lets it respond to unforeseen issues; some decisions controversial; the Court is not infallible but has historically shaped national development.
The Case of the Almost-White Traveler (Plessy v. Ferguson, 1896)
Context: After the Civil War, Reconstruction amendments (13th, 14th, 15th) aimed to secure citizenship and civil rights for freedpeople; Southern states resisted.
Postwar law and segregation: Civil Rights Cases (1883) limited federal enforcement power under the 14th Amendment; Jim Crow emerges through state laws and private discrimination.
Pre–Plessy segregation history on transportation and public facilities:
Hall v. DeCuir (1878): states could not prohibit segregation on common carriers; Louisville, New Orleans && Texas Railway v. Mississippi (1890) upheld intrastate segregation with a few dissents (Harlan and Bradley).
From 1887–1892, several states enacted segregation on public conveyances, often with penalties for passengers and employees who resisted.
The Separate Car Act (Louisiana, July 1890):
Required "equal but separate accommodations" for whites and colors on state rails; aimed at public transport to enforce racial separation.
Test-case strategy: Creole leaders (gens de couleur libre) and allied lawyers seek a constitutional challenge; Louis A. Martinet (Creole attorney) and Albion W. Tourgée (white reformer) spearheaded efforts; James Walker acts as local attorney; Tourgée’s aim is to expose the race-determination process as complex.
Test-case planning and leadership:
Initial test in Desdunes case (Daniel Desdunes, 1892) focused on interstate travel; failed when a Louisiana judge dismissed the case as not within state intrastate travel; the Abbott v. Hicks decision (Louisiana ex rel. Abbott v. Hicks, 1892) rejected applying intrastate segregation to interstate travel.
After Abbott, focus shifts to Homer Plessy, a light-skinned Creole (gens de couleur libre) who identified as seven-eighths white and one-eighth African, to test race definitions under the Separate Car Act.
Martinet/McGee/Walker team with Tourgée to mount a federal constitutional challenge anchored in the 13th and 14th Amendments and the question of race definition.
Homer Adolphe Plessy (background):
Creole from New Orleans; family mixed heritage; active in civil rights and Creole associations; involved in education reform and desegregation efforts in Orleans Parish public schools; a community organizer with ties to Gent de couleur groups and reform networks.
Plan: to test in federal court whether race-based seating on trains violates constitutional protections; the strategy relies on questioning race as a fixed public standard and exposing the arbitrariness of conductor-based race determinations.
Legal strategy and pleadings:
Plea of jurisdiction argued that the act improperly delegated race determinations to a railway conductor and that race involves complex science and law.
The defense framed the act as violating the rights protected by the Thirteenth and Fourteenth Amendments and as infringing on privileges and immunities of citizenship.
Ex parte Plessy (1893) – Louisiana Supreme Court decision on the test case:
Court held that Separate Car Act did not violate the Thirteenth or Fourteenth Amendments.
Cited Civil Rights Cases to argue that segregation did not amount to slavery or a badge/incident of slavery; determined equality of accommodations, not identity or community, as the measure of compliance with the Amendment.
Strategy shift and the plan to Plessy:
After Abbott, Plessy’s team pursued a federal appeal on intra-state travel; concern that the Supreme Court’s make-up favored pro-segregation positions; time and climate in the late 19th century were not favorable to civil rights.
Plessy’s lawyers argued that calling someone white or colored and segregating them based on that label violated fundamental civil rights; the aim was to present race as a social construct and highlight the state’s authority to control race-based seating.
Supreme Court decision (April 13, 1896): the Court upheld the Louisiana law in a decision (Justice David Brewer absent); Justice Henry Billings Brown wrote the majority opinion; only Justice John Marshall Harlan dissented.
Majority opinion and rationale:
The Court held that segregation did not violate the 13th Amendment (because it did not deem segregation as slavery) and did not violate the 14th Amendment as applied to this context; the key principle was that separate facilities could be equal and thus constitutional under the 14th Amendment’s equal protection clause when the law was reasonable and applied equally.
Brown emphasized states’ rights and the policy judgment of states in regulating internal matters; the Court did not recognize a requirement that separation itself implied inferiority.
The phrase commonly attributed to the era, “separate but equal,” is often cited in connection to Plessy, but the exact phrase does not appear in the majority opinion; the doctrine followed that separate facilities could be constitutional if equal in practice.
Dissent and counterarguments:
Justice John Marshall Harlan’s lone dissent famously argued that the Constitution should be color-blind, stating: "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 asserted that the law’s purpose was to exclude black citizens from white spaces and thereby subordinate them; he described the decision as a "badge of servitude" inconsistent with constitutional liberty.
Harlan further argued that "The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution," emphasizing that a color-blind Constitution prohibits the state from drawing lines of race in public life and that segregation, by its nature, undermines equal protection and the spirit of the 14th Amendment.
Aftermath and legacy:
The Plessy decision did not provoke immediate, drastic backlash in many Northern states, but it catalyzed the entrenchment of Jim Crow in the South.
The decision provided legal justification for widespread segregation (1887–1920) in transportation, theaters, restaurants, hotels, and public spaces; signage and facilities became common in the South.
The Plessy line of cases contributed to a long era of legal segregation; Harlan’s dissent becomes a foundational spoke for color-blind constitutional liberty and civil rights arguments later revived in Brown v. Board of Education (1954).
Plessy’s life after the decision: he pled guilty to the Separate Car Act charge; lived as a working man in New Orleans, remained active in the African American community; died in 1925.
Significance and broader implications:
The case demonstrates the tension between state sovereignty and federal civil rights protections; it shows how legal strategies attempted to expose the arbitrariness of racial classification.
It also illustrates how a judicial decision can empower or constrain social practices for an extended period; the majority’s emphasis on state power and “equal accommodations” laid groundwork for the Jim Crow era.
The case foreshadows later civil rights jurisprudence, including the color-blind framework championed by Harlan and later revived in the mid-20th century.
The Case of the Stubborn Baker (Lochner v. New York, 1905)
Context: Industrialization and the Progressive Era (late 19th–early 20th centuries) brought economic growth, urbanization, mass production, and a push for protective legislation (child labor laws, hours limits, safety standards, workers’ compensation).
Economic and social backdrop:
The United States becomes a predominantly urban, industrial nation (smokestack economy); energy shifts from water to coal/steam; inventions (e.g., Edison) transform production and daily life.
Labor force expands with internal migration and massive immigration; long hours are common; working conditions often dangerous; women and children frequently employed; workers face minimal protection and collective bargaining hurdles.
Reform movements (Progressivism) seek to mitigate harms via state-level statutes addressing health, safety, and welfare, including limits on working hours, child labor laws, and workers’ compensation.
The legal battleground: substantive due process vs police power
Substantive due process (Fourteenth Amendment) argued to protect vested property rights and private contracts from broad regulatory interference.
The police power (state power) argued to allow regulation for health, safety, and welfare; public welfare justifications could justify certain restrictions; judges varied in their willingness to uphold such laws.
Critics argued that constitutional protection of contract is not a license to impede necessary health and safety protections; supporters argued that courts must respect legitimate legislative choices to regulate the economy for public good.
Lochner’s facts and the Bakeshop Act (New York, 1895):
Lochner’s Home Bakery in Utica employed many workers; cellar bakery conditions were cramped, unsanitary, and dangerous; long hours (typical hours daily, some weeks with hours) with little safety oversight.
New York passed the Bakeshop Act (1895): sanitary regulations plus hours limit: maximum ten hours per day and sixty hours per week for biscuit, cake, and bread workers; enforcement by health authorities; aim to improve worker health and public health.
Lochner (owner) challenged the law in court, ultimately arguing it violated the liberty of contract and thus was an invalid exercise of the police power.
Procedural path and key rulings:
Trial court (Feb. 12, 1902): Lochner convicted; he offered no defense; fined or days in jail; the record lacked a formal defense on the record, complicating appeals.
Appellate Division (New York): split ; majority held the act was a legitimate police power measure; distinguished the cigar-makers case (In re Jacobs, 1885) and held that the Bakeshop Act did not ban baking, it regulated it; the hours provision was viewed as an ancillary or related component, not a pure health measure.
Court of Appeals (New York) – decision upheld Lochner; Chief Judge Parker declared public health necessity and sanitation justification; the hours provision was seen as a health measure; the law’s scope extended beyond a mere health mandate to a broader labor regulation that infringed on contracts.
Dissenting opinions in the Court of Appeals (O’Brien, Bartlett) argued the hours provision was paternalistic and unconstitutional as it targeted a class (bakery workers) rather than a broad health measure; viewed as “class legislation.”
U.S. Supreme Court decision (April 17, 1905): Lochner v. New York – majority struck down the Bakeshop Act hours provision as unconstitutional; the Court reaffirmed liberty of contract as a fundamental right protected by substantive due process, at least in this context.
Majority opinion, authored by Justice Rufus Peckham, held that:
The hours provision interfered with the right to contract between employer and employee, stating, "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution." He also noted, "It is a question of which of two powers or rights shall prevail—the power of the State to legislate or the right of the individual to liberty of person and freedom of contract." There was no clear demonstration that baking was an inherently dangerous or unhealthy occupation requiring this regulation; the health arguments were insufficiently substantiated.
The law did not satisfy the health measure test; it could not be sustained under the police power as a matter of public health; at best, sanitary provisions could be maintained, but the hours regulation was unconstitutional.
Dissent by Justice John Marshall Harlan (joined by White and Day): argued the police power extends to protecting lives, health, and safety; liberty of contract is subordinate to the police power when health or safety is at stake; the majority’s emphasis on health evidence was insufficient and the Court should defer to legislative judgments when there is a plausible health objective.
Dissent by Justice Oliver Wendell Holmes Jr.: famously stated that "The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics," emphasizing that "a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire." He further argued that the majority’s decision was an improper exercise of judicial activism.
Field and Weismann brief and the Brandeis influence:
Firm behind Lochner’s case filed a thorough evidentiary brief arguing that baking was not health-endangered; the brief included mortality comparisons and medical evidence; the aim was to show that the law was not a valid health measure.
The majority did not emphasize the appendix, but Brandeis’s later Muller v. Oregon (1908) would rely on a robust factual brief to justify protective labor measures for women, signaling a shift in court approach to social science data.
Aftermath, the Lochner era and its reception:
Immediate reactions: business interests celebrated; organized labor denounced the decision as ideological and anti-worker; legal scholars attacked the decision for treating economic regulation as if it were a private contract issue rather than a public health matter.
The Lochner era (roughly 1905–1937) saw a pattern where the Court frequently struck down protective labor legislation, especially when framed as restrictions on liberty of contract; it became a symbol of judicial hostility to progressive reforms.
Muller v. Oregon (1908): later Court decision upholding a ten-hour day for women workers; Brandeis contributed the famous Brandeis Brief, emphasizing social science data and showing that gender-specific regulation could be justified on health grounds; this case marked a turning point toward greater willingness to permit protective regulation, though the Lochner precedent still influenced jurisprudence for decades.
West Coast Hotel Co. v. Parrish (1937): the Court upholds minimum wage legislation; the Lochner era ends; the Court acknowledges the legitimacy of state regulation for welfare and public interest, shifting away from strict liberty of contract.
Adkins v. Children’s Hospital (1923): federal minimum wage for DC workers revived Lochner’s contractual concerns; later reversed by broader welfare-state jurisprudence.
1937 onward: gradual embrace of social welfare regulation and substantial deference to the police power in balancing public health, safety, and welfare against individual economic liberty.
The larger arc and lasting implications:
Lochner became a controversial and symbolic case for concerns about judicial activism and the political nature of economic regulation.
The case anchored a debate about the scope of the state’s police power and the reach of substantive due process; its legacy reshaped constitutional theory and public policy debates for decades.
The narrative foreshadows broader constitutional transformations: the shift from a focus on contract and property rights to a focus on health, safety, and welfare, culminating in the New Deal era’s expansive state role.
The individuals and the strategic players:
Henry Weismann: bakery union leader who championed the act; later became adversarial to the law and even helped publish union criticisms; his complex role underscores the political economy of labor regulation in the era.
Field and Weismann brief: detailed evidentiary support and mortality data; provided a technical basis for the health argument, which the Court largely rejected in Lochner but influenced later arguments in Muller.
Brandeis: later used to argue for a more evidence-based approach to social regulation; Muller v. Oregon is often cited as the turning point that allowed legitimate health-based restrictions to survive scrutiny.
Key takeaways and connections to broader themes:
Lochner is emblematic of the tension between economic liberalism and social reform; it highlights the risk of treating legislative choices as mere private contracts.
The case demonstrates how the Court’s interpretation of the Fourteenth Amendment can protect corporate or property rights against state intervention but can also be used to legitimize protective policies when framed as health and welfare measures.
The Lochner era illustrates the evolving understanding of the Court’s role in balancing economic liberty with government power to regulate for public welfare, a debate that continues in modern constitutional discourse.
Connections, Context, and Cumulative Implications
From Plessy to Lochner to modern civil rights and labor jurisprudence:
Plessy (1896) legitimized racial segregation under a doctrine of separate but equal, reinforcing state-sanctioned discrimination and laying groundwork for Jim Crow until overturned by Brown v. Board (1954).
Harlan’s dissent in Plessy articulated a color-blind constitutional vision that would inform later civil rights arguments and the Court’s evolving understanding of equal protection and civil rights.
Lochner (1905) became a touchstone for the debate about “liberty of contract” and the proper scope of the state’s police power; the case catalyzed a broader public debate on economic regulation and the legitimacy of protectionist legislation.
Muller (1908) and the Brandeis brief mark a shift toward integrating scientific data into constitutional argumentation, signaling a new mode of constitutional advocacy for social policy.
The shift from Lochner to the New Deal-era jurisprudence demonstrates a gradual reorientation in constitutional law toward deference to public welfare and the legitimacy of government intervention in economic life.
Implications for teaching constitutional history:
Emphasize case narratives and social context to understand how legal doctrines emerge and evolve.
Highlight the roles of activists, lawyers, and social reformers in shaping jurisprudence, not only judges and opinions.
Show how constitutional interpretation can reflect and influence broader social and political movements (civil rights, labor, urban reform).
Key People, Cases, and Concepts (Quick Reference)
Key cases cited in this material:
Brown v. Board of Education, U.S. ()
Civil Rights Cases, U.S. ()
Ex parte Plessy, La. Ann. ()
Hall v. DeCuir, U.S. ()
Holden v. Hardy, U.S. ()
Lawton v. Steele, U.S. ()
Louisiana ex rel. Abbott v. Hicks, La. Ann. ()
Louisville, New Orleans && Texas Railway v. Mississippi, U.S. ()
Munn v. Illinois, U.S. ()
Plessy v. Ferguson, U.S. ()
West Coast Hotel Co. v. Parrish, U.S. ()
Lochner v. New York, U.S. ()
Muller v. Oregon, U.S. anj. U.S. ()
Adkins v. Children’s Hospital, U.S. ()
In re Jacobs, N.Y. ()
Notable figures:
Homer Plessy – test case plaintiff in Plessy v. Ferguson; Creole from New Orleans with mixed heritage; activist in gens de couleur circles.
Albion W. Tourgée – white reformer and advocate for racial equality; wrote A Fool’s Errand; led legal strategy for Plessy.
Louis A. Martinet – Creole attorney who helped organize the test case against segregation (Separate Car Act).
James Walker – New Orleans attorney who joined the case as local counsel.
John Marshall Harlan – lone dissent in Plessy; future color-blind constitutional rhetoric; foundational ideas for civil rights jurisprudence.
Henry Brown (Justice) – author of the Plessy majority opinion; em
bodied states’ rights philosophy; previously wrote Lawton v. Steele and Holden v. Hardy decisions.Field and Weismann – advocates who produced the data-driven brief in Lochner; Weismann later shifts to opposing positions in Lochner’s path to the Court.
Louis D. Brandeis – later argued in Muller v. Oregon with a data-rich brief; became a Supreme Court Justice and a key advocate for regulatory reform.
Core concepts and vocabulary:
Case or controversy requirement: the Court only decides actual disputes brought before it (as Tocqueville observed about political questions becoming judicial issues).
Substantive due process vs. police power: tension between protecting private contracts/property vs. protecting health, safety, welfare; the meaning of liberty of contract and the proper scope of state intervention.
Color-blind Constitution: Harlan’s long-term argument that constitutional equality requires color-blind treatment of citizens; warned against legal segregation as a badge of servitude.
Public health vs. class legislation: Lochner’s majority argued that hours restrictions were not a true health measure but a restriction on contracts; dissents argued for broader health-based regulation and protection of workers.
For Further Reading (selected references from the text)
The Plessy Case: A Legal and Historical Interpretation, Charles A. Lofgren (1988); Plessy v. Ferguson: A Brief History with Documents, Thomas Brook (ed., 1996).
Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson, Mark Elliott (2006).
Retreat from Reconstruction, 1869–1879, William Gillette (1979).
The Strange Career of Jim Crow, C. Vann Woodward (1955).
State Laws on Race and Color, Pauli Murray (1952).
Lochner era jurisprudence and its legacy: Huisman discussions in various works; see Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990, rev. ed. 1998).
Muller v. Oregon and the Brandeis Brief: Brandeis’s data-driven approach to public health regulation; see Muller v. Oregon (1908).
The broader analysis of labor law and federal/state power: Tomlins, The State and the Unions (1985); Gillman, The Constitution Besieged (1993).
Note: The above works provide context for the debates summarized here and expand on the social, economic, and political forces shaping these landmark cases.
Summary of Core Takeaways
The Supreme Court’s role as constitutional interpreter has evolved from a relatively peripheral branch to a central arbiter of rights and governance, heavily shaping American political and social development.
Plessy v. Ferguson reinforced legalized segregation under a framework of equal but separate facilities, legitimizing Jim Crow policies for decades and highlighting the tension between color-conscious policy and a color-blind constitutional ideal.
Harlan’s dissent in Plessy articulated a lasting color-blind constitutional standard and warned against the dangers of state-sanctioned racial hierarchy.
Lochner v. New York exemplifies the clash between strong protections for private contracts and growing public-health/safety concerns; the decision catalyzed a long public debate about the proper level of judicial restraint versus legislative deference in regulating labor and industry.
The arc from Lochner to Muller to the New Deal marks a shift in constitutional interpretation toward recognizing legitimate health, safety, and welfare objectives as compatible with, and sometimes requiring, government regulation of economic life.
These cases illustrate how political, social, and economic contexts shape constitutional doctrine, and why historians emphasize the broader narratives and human stories behind the opinions.
(Note: All numerical references and case citations are included above in LaTeX-friendly form where applicable, e.g., for a decision, for a decision, and fractions like and for Plessy’s described heritage.)