Plessy v. Ferguson: The Living Constitution Decrees Racial Segregation

If, as the Slaughter-House decision makes clear, the original meaning of the Equal Protection Clause was to prohibit laws which required racial segregation and discrimination "against the negroes as a class, or on account of their race," then Plessy is not an originalist decision. See Justice Harlan's originalist dissent in Plessy.

Rather, the Court in Plessy is acting like a common law court construing the Equal Protection Clause as evolving to meet the needs of the White-supremacist majority of Louisiana in 1896 to legislate based upon their "social prejudices." The Equal Protection Clause requires complete racial equality, but the Living Constitution of Plessy reads "separate but equal" into equal protection.

The Living Constitution can produce any result that a majority of the Court desires, anything from your wildest dreams of good policy to your darkest nightmares of bad policy. And whatever the Court says is then entrenched in the Constitution for generations. Plessy was the "law of the land" for over half a century.