A short paper discussing the legal briefs of Plessy v.Ferguson, Brown v. Board of Education, and Norma Basch’s Framing American Divorce.
Law Does Not Define Society It Reflects Society
By Tom White
Throughout history the mark of a civilized society has been society’s ability to refine its laws to reflect the will of the people. The legal briefs of Plessy v.Ferguson, Brown v. Board of Education, and Norma Basch’s Framing American Divorce provide ample documentation to support the claim that legal implementation cannot precipitate social transformation on its own; it can only follow the direction in which society was already going.
Following the Reconstruction, Louisianalegislation enacted Jim Crow laws that legally separated the races. One law in particular, the “Separate Car Act” of 1890, was passed in Louisianaand required railway companies to provide separate passenger seating based upon race. This law was challenged by Homer Plessy who specifically claimed that under the 14th Amendment segregated facilities violated his equal protection guaranteed to him under the Constitution. The state of Louisiana countered, according to the Plessy court summary of the Louisiana Supreme court, that it has the “liberty to act with reference to the established usages, customs…of the people…” When Homer Plessy appealed his case to the U.S. Supreme Court Justice Henry Brown in delivering the court’s opinion upheld the lower court of Louisiana and stated that “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical difference and the attempt to do so can only result in accentuating the difficulties of the present situation” In other words, legislation cannot change society. Also further research has revealed that society did not react in national protest to the Supreme Court decision thereby supporting the claim that law follows society’s direction. It would be another 60 years in passing before society inched further toward racial equality with school desegregation.
In the case of Brown v. Board of Education which overturned school segregation in 1954 based upon the “separate but legal doctrine” established by Plessy v.Ferguson, legislation reflected only that direction in which society was already headed. In the Brown v. Board of Education of 1954 American society was divided on segregation, but leaned toward elimination. The Supreme Court was unable through legislation to precipitate social transformation, which was apparent by the massive resistance that this decision produced in the southern states. Meaningful change for school desegregation did not occur until the 1960’s when the Johnson administration threatened funding cuts to school districts that did not comply with desegregation. What the Brown v. Board of Education case shows is that legislation, although enacted, took 10 years to have any meaningful impact, and it was a society intent on change, manifested in the Civil Rights Movement that forced these changes, not law.
Norma Basch’s Framing American Divorce yet again demonstrates how society predicated legislation. As a newly independent society sprang forth from revolution, laws were required to meet a society whose needs were a departure from previous English rule. The laws that emerged in a post-revolution America combined the liberal Puritan model, the English parliamentary model, but most importantly Protestant social values. It was this combination that would evolve to meet the ever changing needs of society. A society that had prior to legislation found ways of “ending their unions anyway and it remained for legislators to devise new ways to end them legally” It was not legislation that ruled society on matters of divorce, yet again it was legislation that was enacted to meet the path society was already on.
In all three examples whether the issue has focused upon the institute of marriage or the constitutional concerns of race, it has been society that has predicated legislation to meet its own evolutionary needs, not the other way around.
 Plessy v. Ferguson, 163 U.S.537;16 S.Ct.1138; 41 L.Ed 256; (U.S. 1896), 2
 Ibid, 10
 Brown Et. AL. v. Board of Education of Topeka Et. AL., 347U.S. 483; 74 S. Ct. 686; 98 L. Ed. 873; (U.S. 1954), 1
 Norma Basch “Framing American Divorce” (Berkeley: University of California Press, 1999), 38