The Supreme Court‘s Role in Constructing Race

Much has been made of race as a social construct and legal fiction. Race is inherently ambiguous and many factors affect personal identity including lineage, appearance, and representation in society. In Plessy v. Ferguson, the Supreme Court set forth the doctrine of “separate but equal.” In doing so the Supreme Court gave the State power to determine personal identity by determining an individual’s race. In this essay I present the problem of racial classification by revisiting Plessy v. Ferguson.

In Plessy, the Supreme Court reasoned that race was property ignoring the difficulties created by bifurcating race as an issue as easy as black and white. In establishing the doctrine of “separate but equal” the Court ignored a complex plurality of racial history and identity.

Racial classification is not permanent but constantly evolving as a politically contested idea. “Racial classification…is always flexible, a process without an end point or finality of any kind.” Take for instance the experience of Japanese Americans. The racial category on the census has identified them as “non-white,” “Oriental,” “Other,” and more recently “Asian and Pacific Islanders.”[1]

While the doctrine legitimating segregation has been overturned, racial classification is not an issue of the past. Rather, the political idea of race has continuing importance in American society. Such classifications to this day have important ramifications for housing, employment, education, federal funding for social programs, and the drawing of election maps.

Whether a social construct or not, racial classification plays a role in contemporary American public policy operating as a property right where lines of definition are constantly being reinterpreted. While the doctrine of “separate but equal” has been overruled, race as a property right has not.

The Construction of Race as Property

The subordination of colored peoples provided the ideological basis for conquest and slavery. America is a country founded on the appropriation of land from the Native Americans and the appropriation of Black slave labor. It was racial “Otherness” that justified subordination.

The exploitation of “black labor was accomplished by treating black people themselves as objects of property.”[2] By the 1660s laws recognized blacks as chattel labor. Between 1680 and 1682 the first slave codes appeared and many laws gave differential treatment by racial category.[3] In the legal case Johnson v. Butler, the court allowed the stand-in of an African for actual currency. [4] The critical nature of slavery was the commodification of human beings through the creation of a hybrid category combining property and humanity.

Common law also changed in order to exploit ambiguities of race. Where the presumption of the child’s racial status had been the race of the father, the determining factor became the mother. In this reversal reproduction could facilitate one’s labor force.

Slavery as a legal institution treated slaves as property that could be transferred, assigned, inherited, or posted as collateral.[5] Slavery made human beings “market-alienable” subjecting human life to the ultimate devaluation by making it synonymous with currency and the exchange of property.

Where Black became a marker for slavery and second-class citizenship, the law also recognized and protected expectations grounded in White privilege. Whiteness as a shield to slavery was the property only of free human beings. This privilege was codified in law establishing dominant and subordinate positions within a racial hierarchy.

Whose Property and What Race?

Domination manifests in socially acceptable forms through incorporation and assimilation of difference into the national mythology. The Supreme Court plays a role in codifying that mythology into law.[6]

In the case history following the Civil War, bifurcation between Black and White is assumed. However, this idea did not accurately categorize the way individuals thought about themselves nor did it account for ambiguous gradations of race. Homer Plessy, the plaintiff in Plessy v. Ferguson is an illustrative case. Passing for white in everything but his personal categorization. This sentiment reflected wider views of race within Louisiana at the time.

As a former French colony, Louisiana’s legal environment along with cultural factors distinguished the former colony from those under British dominion. High rates of interracial sex and procreation were not uncommon[7] and there emerged flourishing communities of free Blacks and mulattos in possession of legal, social, and economic rights denied in formerly British colonies.[8] What emerged was a social hierarchy that involved a complex interplay of class, race, and gender.[9] Throughout the eighteenth and early nineteenth century Louisiana’s racial hierarchy followed the three-tiered pattern of the Spanish and French empires rather than the American two-tiered model.[10] From this history emerged New Orleans’ Creole community distinguished by language, culture, and ethnicity rather than color.

New Orleans Creole professional class, some of whom were so light-skinned “they could have easily disappeared into white society,” rejected the imposition of racial classification. They valued their distinction and feared losing social status by being labeled Black. Having achieved a position within the social hierarchy and therefore having gained, they had a lot to lose. Motivated to maintain their social status and distinction the Creole community funded the legal challenge in Plessy v. Ferguson arguing that segregation “sought to create the very racial groups that they purported simply to keep apart.”[11]

Plessy v. Ferguson[12]

The activity of racial classification is prior to any question of equal treatment. Is racial classification constitutional?[13] How is race determined, who makes the decision, and by what criteria? These were the questions Alain Tourgée, counsel for Homer Plessy, asked in his brief to the Supreme Court.

Tourgée argued that “becoming white meant gaining access to a whole set of public and private privileges that materially and permanently guaranteed basic subsistence needs and increased the possibility of controlling critical aspects of one’s life.”[14] Tourgée wanted to make the issue of race as property a focal point of the case. He asked the Supreme Court “How much would it be worth to a young man entering the practice of law to be regarded as white rather than colored? The reputation of being white…is the most valuable sort of property, being the master-key that unlocks the golden door of opportunity.”[15]

By pointing out the existence of a property right Tourgée tried to show the legal mechanisms for determining an individual’s race were arbitrary. Tourgée demonstrated the absurdity of racial classification by outlining the inconsistent methods adopted by the various states. In making this claim Tourgée argued this amounted to a taking of property without due process of the law. Tourgée hoped to shift the focus from the legal treatment of Blacks as a class to the legal process of racial classification and its illegitimacy.[16]

Justice Brown: Writing for the Majority

Justice Brown accepted the premise that the “object of the Fourteenth amendment was undoubtedly to enforce the absolute equality of the two races before the law.”[17] To demonstrate that “absolute equality” could be reconciled with segregation, Justice Brown distinguished between political and social equality. The Fourteenth Amendment guaranteed the former while the latter was beyond the scope of constitutional protection.[18] Justice Brown reasoned that no form of legislation could or should even attempt to make the races view one another as equal.

In Plessy, Justice Brown wrote that segregation was applied equally to both races. This idea of “symmetrical equality” drew from the Court’s case history in miscegenation cases that prevented interracial cohabitation, sexual relations, and marriage.[19] In Pace v. Alabama the Court recognized separation “as within the police power of the State.”[20]

In justifying the distinction between Whites and Blacks Justice Brown argued using the language of natural difference suggesting the inevitability of “racial separation.”[21] While the Louisiana law had the effect of separating the races, Justice Brown’s opinion rested on the myth of preserving rather than imposing racial separation. The standard the Court applied examined the reasonableness of the exercise of state power and drew from theory set forth in Roberts v. City of Boston (1850) where racial distinctions were prohibited when placed in the service of prejudice and domination, but allowed when, “the good of both classes…will be promoted.”

Differences of race and color were natural facts for Justice Brown. They were natural outgrowths of biology necessarily immune from judicial intervention. In administering segregation laws, courts were necessarily called upon to assign race.[22] While Justice Brown had relied on “natural” differences to justify segregation, he was confronted with the difficulty that states defined racial identity according to differing standards. This presented the difficulty that what one was depended on where one was.

Even within his opinion Justice Brown acknowledged the difficulty of identifying one’s race citing state court rulings employing various formulas.[23] Justice Brown deferred on the issue saying it was for the states to set their own standards and yet every case he cited to support his conclusion was either dismissed or remanded because the state failed to meet its burden of proving the race of the defendant.[24] The series of cases Justice Brown cited approvingly employed public display and reception, lineage, association within the community, and witness testimony to determine race.[25]

In People v. Dean the Michigan Supreme Court required at least three-fourths white ancestry. [26] In that case the court admitted to arbitrarily setting a standard for racial definition acknowledging that in some instances “there are white men as dark as mulattoes, and there are pure blooded albino Africans as white as the whitest Saxons.[27]


In examining the cases Justice Brown cites we see emerge a discrepancy between the lived experience of racially ambiguous people and the legal requirement for clear rules defining racial identity. While Justice Brown justified segregation on the natural distinction between the races, incoherence in the cases he cites demonstrates difficulty establishing the legal fiction of race. Rather than resolving racial ambiguity, Justice Brown demonstrated the extent to which racial categories are produced and maintained arbitrarily through the power of law.[28] The Supreme Court’s decision ignored the nuances of difference within America and in Americanizing Louisiana entrenched racial hierarchy with whites at the top and second-class citizenry for the rest.

[1] Michal Omi and Howard Winant, Racial Formation in the United States: From the 1960s to 1990s. Second Edition. New York, NY: Routledge (1994)

[2] Cheryl I. Harris, Whiteness as Property in Critical Race Theory: The Key Writings, Edited by Kimberlé Crenshaw, 276–291, 278 The New Press (1995)

[3] See Harris at 278. “blacks were not allowed to travel without a permit, assemble in public, and own weapons or property.”

[4] 4 Ky. (I Bibb) 97 (1815).

[5] A. L. Higgenbotham, Jr. In the Matter of Color: Race and the American Legal Process, at 52 (1978).

[6] Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 146–166 (2009).

[7] Jennifer M. Spear, ‘“They Need Wives’: Méstissage and the Regulation of Sexuality in French Louisiana, 1699–1730,” in M. Hodes, ed., Sex, Love, Race: Crossing Boundaries in North American History. New York: New York Univ. Press. (1999).

[8] H. E. Sterkx, The Free Negro in Ante-Bellum Louisiana. 26–34, Madison, NJ: Fairleigh Dickinson Univ. Press (1972).

[9] Barbara Y. Welke, “When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914,” 13 Law and History Rev. 5 (1995),

[10] Arnold R. Hirsch & Joseph Logsdon, Creole New Orleans: Race and Americanization at 189, Baton Rouge: Louisiana State Univ. Press (1992).

[11]Mark Golub, Law & Society Review, Vol. 39, №3 (Sep., 2005), pp. 563–600, 568–569.

[12] 163 U.S. 537.

[13] Tourgée Brief 1895: 97.

[14] See Harris at 276.

[15] Otto H. Olsen, The Thin Disguise: Plessy v Ferguson. New York: Humanities Press. Pp. 83 (1967)

[16] See Golub at 573.

[17] 163 U.S. 537, 544

[18] See Strauder v. West Virginia, 100 U.S. 303 (1880)

[19] Pace v. Alabama (1883).

[20] 163 U.S. 537, 545.

[21] 163 U.S. 537, 543.

[22] 163 U.S. 537, 549.

[23] 163 U.S. 537, 552.

[24] See Golub at 585.

[25]State v. Chavers, 50 NC 25 (1857), Gray v. State, 4 Ohio St. 353 (1831), Monroe v. Collins, 17 Ohio St. 665 (1868), Jones v. Commonwealth, 80 Va. 538, 540 (1885)

[26] 14 Mich. 406, 424 (1866)

[27] Id. at 422.

[28] See Golub at 590.

Gypsy writer