It has been almost 50 years since the 1976 publication of Simple Justice, Richard Kluger’s epic account of the dramatic events that culminated in the Supreme Court’s decision in Brown v. Board of Education, 347 U. S. 483 (1954), the most important Supreme Court decision of the 20th century.

The central holding of Brown is that “in the field of public education the doctrine of ‘separate but equal’ has no place” because “[s]eparate educational facilities are inherently unequal.” To reach this conclusion, the court rejected its prior holding in Plessy v. Ferguson, 163 U. S. 537 (1896), which the lower courts in Brown had relied upon in finding that the “separate but equal” concept is constitutional.

In his 800-page tome, Kluger devoted only 10 pages to a discussion of the Plessy case. A recent book by Washington Post senior editor Steve Luxenberg fills an enormous gap in our historical understanding of the “separate but equal” doctrine which governed every aspect of life in this country, especially the South, for almost 100 years after the end of the Civil War. The book is aptly entitled Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation.

Luxenberg has done the same thorough research in libraries and archives that Kluger did, but he had to overcome more hurdles because of the passage of time since Plessy was decided. As Kluger did in Simple Justice, Luxenberg introduces us to the key players in the series of events that resulted in the Plessy decision.

The most memorable character is a man that most of us have never heard of — Albion W. Tourgée, a white lawyer from a small town in upstate New York, who wrote the brief and argued the case for Plessy in the Supreme Court. Tourgée fought in the Union army during the Civil War, then spent 15 years in North Carolina after the war ended. His goal in moving to the South, in his words, was “to make the Union better than it was.” During his lifetime, he was a lawyer, a judge, an author of several books, a weekly newspaper columnist and, for the last eight years of his life, the U.S. Consul to France, appointed by President William McKinley.

Tourgée did not have the same national stature as Thurgood Marshall, the plaintiffs’ lawyer in Brown, but Tourgée was as committed to tearing down the walls of racial separation as Marshall. Assisted by two other lawyers, Tourgée included 23 arguments in his brief, but most were tied to the 14th Amendment — the basis of the court’s decision in Brown 58 years later.

Albion Tourgée was in the right place, but he was there at the wrong time. The majority of the justices on the 1896 Supreme Court had no interest in tearing down the walls of racial separation. The lone exception was Justice John Marshall Harlan, one of only two Southern-born justices on the court at that time and in his eighteenth year on the court.

Separate traces Justice Harlan’s career in great detail and describes the evolution in his thinking on racial issues. As a young lawyer in Kentucky before the Civil War, he had been a slave owner. As the attorney general of Kentucky after the Civil War, he opposed Kentucky’s ratification of the 13th and 14th Amendments and the 1866 Civil Rights Act. The views he expressed in his Plessy dissent in 1896 were completely contrary to his views 30 years earlier, but the interpretation of the 14th Amendment that he expressed in his dissent was so powerful that it was adopted by the court in Brown 58 years later.

The most ignominious character in the Plessy saga is Justice Henry Billings Brown, who wrote the majority opinion espousing the “separate but equal” doctrine that lasted almost 60 years before being abandoned in Brown. A Yale-educated Massachusetts native, he had practiced law in Detroit before becoming a federal district judge. His wife’s wealth enabled him to “live the good life” even on a judge’s salary. Justice Brown is a largely forgotten figure in Supreme Court history.

Plessy was about transportation, not schools, and its factual context vividly illustrates one difficulty of enforcing the “separate but equal” doctrine. The Louisiana law challenged in Plessy required railroads to have separate cars for white and black passengers, and the railroad conductor decided which car a passenger had to sit in.

Quite often, this was easier said than done. Like many biracial persons in New Orleans in the 19th century, Homer Plessy was a light-skinned man with no more than one-eighth African blood based on his ancestry. The Supreme Court opinion stated that “the mixture of colored blood was not discernable in him.” Yet the railroad conductor assigned him to the car for black passengers.

Plessy’s classification by census-takers demonstrates the arbitrary nature of racial categories. In 1880 he was “Mu” for mulatto. In 1900 he was “B” for black (since the “Mu” box had been removed from the census form). In 1920 he was “W” for white, completing his journey through the racial spectrum!

One cynical journalist has recently suggested that the views expressed by Justice Harlan in his Plessy dissent reflect “an indifference to social realities as it relates to the law” and that he was a “sophisticated defender of white racial dominance.” Luxenberg’s quotation from Justice Harlan’s Plessy dissent at page 486 of his book leaves no doubt that he would respectfully disagree with this journalist:

The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. . . . The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race.

At pages 352-355 of his book, Luxenberg also discusses Justice Harlan’s solo dissent from the court’s earlier decision in the Civil Rights Cases, in which the court held unconstitutional the 1875 statute barring racial discrimination in public accommodations. This earlier dissent had made clear Justice’s Harlan firm commitment to tearing down the walls of racial separation and implementing the true spirit of the 14th Amendment.

Luxenberg’s book will be of great interest to persons interested in Supreme Court history. At a time when the Supreme Court seems poised to revisit its historic precedents, however, it helps all of us understand the long journey the court has travelled through its varying interpretations of the 14th Amendment. |||

JOHN P. WILLIAMS is Of Counsel with the Nashville law firm Tune, Entrekin & White. He received the Justice Joseph W. Henry award for outstanding legal writing for articles published in the Tennessee Bar Journal in 2003 and 2014.

NOTES

1. Jamelle Bouie, “No One Can Stop Talking About Justice John Marshall Harlan,” New York Times, July 7, 2023.

2. Plessy v. Ferguson, 163 U. S. 537, 560 (1896).

3. 109 U.S. 3 (1883).

Most Tennesseans know that the Ku Klux Klan was formed in Pulaski after the Civil War, and went on to inflict terror on freed people throughout Reconstruction and the Jim Crow era.¹ Perhaps less known is the story of the Second Klan, founded in 1915 at Stone Mountain, Georgia. And least known of all is the Klan’s political dominance in Indiana in the 1920s, where it virtually controlled state and local governments. Timothy Egan’s Fever in the Heartland (2023) tells the story of the Klan’s rise to power in Indiana and its precipitous fall after the conviction of its Grand Dragon for murder and sexual assault.

The Indiana Klan was largely the creation of one man: D.C. Stephenson, known as “Steve” or “the Old Man.” A grifter born in Oklahoma, Stephenson falsely portrayed himself as a lawyer, a veteran, wealthy, educated and influential. All but the last were a lie. Working with his erstwhile ally Hiram Evans, Stephenson seized power from the founder of the Second Klan and was named Grand Dragon for Indiana, with duties spanning several midwestern states. Enriched by a generous cut of Klan membership fees and revenues from white sheet-costume sales, Stephenson set out to control the levers of power in Indiana and beyond.

Stephenson and his lieutenants spread the KKK’s doctrine of hate across Indiana, harassing Blacks, Catholics, immigrants and Jews in towns large and small. Stephenson closely aligned the Klan with Prohibition, Protestant churches and nativist organizations. He coopted the Indiana Horse Thief Detective Agency as the Klan’s private militia. He endorsed candidates, donated campaign funds and extracted an oath of loyalty in return. As a result, scores of legislators, judges, district attorneys, sheriffs, police and executives owed their posts to Stephenson and the Klan. Perhaps most sickeningly, Stephenson grew the Klan’s women’s auxiliaries, the “Ku Klux Kiddies” and its alliances with ministers.

Stephenson was not, however, just an energetic bigot; he used his power and social status to attract, and abuse, women. His history of violence and assault eventually led to his ill-fated encounter with Madge Oberholtzer in March 1925. Obertholtzer, a state employee looking to save her job with an endangered state agency, met Stephenson a few weeks earlier at one of his lavish banquets. One Sunday evening in March 1925, she was summoned to Stephenson’s house in Irvington, Indiana, ostensibly on business. Once there, she was taken by Stephenson and his henchmen to the train station and put aboard a sleeper for Chicago.

On the train, Stephenson assaulted Oberholtzer, raping, beating and biting her. The group took her off the train in Hammond, Indiana, and repaired to a hotel, where her requests for medical care or to call her parents were refused. Despairing, she bought bichloride of mercury when allowed (under watch) to go a drug store. Now dying and in pain, she was taken back to Stephenson’s home in Irvington, where she was hidden in the garage. When her condition worsened, she was returned to her parents’ home with the excuse that she had been in an auto accident.

Nursed by her parents, Oberholtzer’s condition declined over the next few weeks as the mercury consumed her. Assisted by her physician and her attorney Asa Smith, Oberholtzer dictated the story of her abduction and assault. When she died on April 14, 1925, that dying declaration was given to local District Attorney Bill Remy, who had refused to take a Klan loyalty oath.²

Stephenson and two of his aides were indicted for second degree murder and related charges. The trial was moved to nearby Noblesville, where it joined its near-contemporary Scopes Trial as one of 1925’s “trials of the century.” The trial court ruled the dying declaration admissible and the jurors heard the sordid tale of the trip to Hammond and Madge’s ordeal. While his two co-defendants were acquitted, Stephenson was convicted and served over 30 years in prison.³ Following his release, Stephenson continued to live as a con man and, according to Egan, eventually ended up in the Tri-Cities — and is buried in a veteran’s cemetery, despite the lack of any military service.

Following the 1925 trial and murder conviction, the Indiana Klan began to unravel. Pursued by dedicated opponents, the Klan’s membership rolls were disclosed and its corrupt ties to elected and appointed officials were exposed. Stephenson himself shared details of his relationship with the governor and other elected officials from his prison cell. As in other states where the Klan exercised power such as Colorado, Oregon and Texas, the Indiana Klan was largely undone by its own excesses. As Egan makes clear, it took a number of brave, independent figures to end the Klan’s reign in Indiana, including the “woman who stopped them” of his subtitle. His little-known tale serves as a warning against demagoguery and an inspiring example of the power of courageous individuals to overcome it. |||

Editor's Note: Timothy Egan will be at the 2023 Southern Festival of Books in Nashville, Oct. 21-22.

GARY SHOCKLEY is a shareholder at Baker Donelson in Nashville. He is a former leader of Baker Donelson's Government Regulatory Actions Group and has tried a wide variety of complex cases to judges and juries in more than 25 state and federal courts, as well as before administrative agencies and arbitrators.

NOTES

1. Mark V. Wetherington, Ku Klux Klan, Tennessee Encyclopedia (March 1, 2018),  http://tennesseeencyclopedia.net/entries/ku-klux-klan/.

2. Deborah B. Markisohn, William Henderson Remy, Encyclopedia of Indianapolis (1994, rev. February 2021) https://indyencyclopedia.org/william-henderson-remy/.

3. Stephenson v. State, 205 Ind. 141, 179 N.E. 633 (1932).