Among the writers who have had a consequential effect on the issue of race in America, Albion W. Tourgée (1838-1905) may be the least noticed, for reasons unclear. This is the latest of several recent treatments of his life and work that have left him, still, in unmerited obscurity. Perhaps one cause lies in his remarkably varied career, whose many phases began with his arrival as a twice-wounded Union Army veteran in Greensboro, North Carolina. He served as a judge and legal and constitutional reformer during Reconstruction and instituted model courtroom procedures still in use. During that sojourn in potentially unfriendly territory, he befriended ex-slaves and their cause; and he fought the Ku Klux Klan, then and there, and lynching elsewhere.
When Reconstruction faltered, he moved away but drew on these adventures in two revealing novels, A Fool’s Errand (1879) and Bricks Without Straw (1880). Both sold tens of thousands of copies and both reflected the frustrations of his attempt to convert counter-revolutionaries to a receptive view of the changes wrought by the war. His polemics, as Edmund Wilson noted in his magisterial study of Civil War literature, Patriotic Gore (1962), did not lack a certain ironic sympathy for the opposition.
Easily his most notable contribution to the history of his time commenced in the early 1890s with the battle against railroad-car segregation in Louisiana. This forerunner of Jim Crow law culminated in the Supreme Court case Plessy v. Ferguson. Tourgée played a major role in “staging” the provoking incident: Homer Plessy, who looked “white,” was arrested for refusing to move to the Jim Crow carriage. When the case reached the Supreme Court, the odds were stacked against Tourgée, who served, in effect, as counsel for Plessy. The justices before whom Tourgée argued had already reversed the intent of the 14th Amendment, from a charter of liberty for emancipated slaves to a charter of license for corporations.
A court mesmerized by the resurgent doctrine of state sovereignty was unlikely, in any case, to overturn a statute segregating intrastate rail travel. By Carolyn Karcher’s account, Tourgée foresaw that his advocacy against separate-but-equal was destined to fail; but he seized the occasion to denounce the sitting justices for their reversal of the meaning of the postbellum constitutional amendments. His willingness to challenge the mood of the hour, and its judicial ramifications, helps explain why one admiring colleague called him “a refugee from his race.” The label was appropriate—although its adoption as a book title bears the misleading implication that “white” opinion uniformly favored racial segregation. It did not, then or later, not even in the South.
The 7-1 Plessy decision ratified, over a single dissent, a two-tier system of law. Justice Henry Billings Brown, writing for the majority, dismissed segregation as a delusion of the black mind: “That the enforced separation of the two races stamps the colored race with a badge of inferiority” exists only “because the colored race chooses to put that construction upon it.” This was the absurdity the Warren Court explicitly repudiated 58 years later. But the end-of-century mood of weariness persisted for more than 50 years and soon soured into blatant racism. The 1900-47 period when President Harry Truman desegregated the armed forces by executive order, witnessed its apotheosis in the widespread admiration for Thomas Dixon’s novels, including The Clansman (1905) and its innovative cinematic offshoot, The Birth of a Nation (1915). Even a president, Woodrow Wilson, became an admirer—a symptom of the depth of racism, even among otherwise enlightened Americans.
Tourgée did enlist an ally on the Court, John Marshall Harlan, a Kentuckian and former slaveholder. Harlan had previously denounced and voted against the effective nullification of the 14th Amendment and the Civil Rights Acts. Tourgée’s unflattering treatment of judicial hostility in the Plessy brief could hardly have failed to sharpen the Court’s determination to cement segregation. But the incorporation of his views in Harlan’s dissent assured Tourgée’s outlook a long life, leading to the eventual overthrow of the separate-but-equal doctrine. Harlan’s dissent, animated by Tourgée’s brief, was an appeal to what a former chief justice called “the brooding spirit of the law.” But in this instance, it was long a-brooding. And Tourgée, as its originating spirit, received too little credit. (Karcher notes that the Court of that era kept no transcript of arguments; as a consequence we have no archival record of the give-and-take of Tourgée’s big moment before the justices.)
Tourgée’s failure in the Plessy case left him disheartened and, incidentally, near bankruptcy. Needing money and rest, he won a respite from President McKinley as American consul at Bordeaux, where he died in 1905. In keeping with the domestic mood of the times, those years witnessed a spasm of imperialism, followed by the blood-soaked annexation of the Philippines. McKinley attributed his decision to emancipate the Philippine islanders from Spanish rule to his prayerful consultation of God, and the imperialist outlook proved contagious, even for Tourgée: His long and ardent dedication to constitutional equality at home stopped at the water’s edge. In its final months, his newspaper column, which he had written regularly for decades, featured defenses of American colonialism and of a two-tier constitution that did not, in the contemporary phrase, “follow the flag” to such destinations as Manila.
Albion Tourgée was a bold polemicist and gifted storyteller whose voice was much applauded in his day by his many black allies, if by few others. In her introduction, Karcher observes that, in recent historical writing, “relentless emphasis on the failure of white progressives to measure up to present-day standards of political correctness has forced a diverse group of people into a single mold, flattened out historical complexities, eliminated nuances and distinctions, and not infrequently ignored the countervailing testimony of the African Americans who worked most closely with the antiracist activists.” No one conversant with recent trends in post-Civil War historiography, where moralism frequently masquerades as historical judgment, will fail to agree.
Edwin M. Yoder Jr. is the author, most recently, of Vacancy: A Judicial Misadventure.
