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The Fugitive's PropertiesLaw and the Poetics of Possession$
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Stephen M. Best

Print publication date: 2004

Print ISBN-13: 9780226044330

Published to Chicago Scholarship Online: February 2013

DOI: 10.7208/chicago/9780226241111.001.0001

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Counterfactuals, Causation, and the Tenses of “Separate but Equal”

Counterfactuals, Causation, and the Tenses of “Separate but Equal”

(p.203) Chapter Three Counterfactuals, Causation, and the Tenses of “Separate but Equal”
The Fugitive's Properties
University of Chicago Press

In the U.S. Supreme Court case Plessy v. Ferguson (1896), Homer A. Plessy challenged as unconstitutional Louisiana's Separate Car Law, which mandated racial segregation in railway transport. Plessy v. Ferguson established as matters of federal law the juridical doctrines protecting separate-but-equal racial accommodations in the public sphere. The case marked a memorial end to all the promises of the post-Civil War era, from the Reconstruction amendments to more informal assurances of black participation in New South industrialization and civic life. Moreover, borne on the crest of a growing wave of legally suspect maneuvers by whites against blacks and blatantly illegal aggressions, Plessy served also as a monumental juridical culmination of the post-Reconstruction “reign of terror.” This chapter discusses the case, separate-but-equal accommodations, counterfactualism, and the doctrine of “equal protection.” The chapter aims to designate the counterfactual schemes common to a turn-of-the-century equal protection law, those interrupted itineraries (between cause and effect, past and present) that spawn scenarios characterized by alternative chronologies, historical contingency, and fictive suppositions; and in referring to that moment when the civil procedures coincident with equal protection persist as a “poetics of form,” it highlights the rather compelling resemblances between this conjectural jurisprudence and a tendency toward an aesthetics of rupture, plots of identity exchange, and themes of repetition and temporal return that recur in the American literature and film of this period.

Keywords:   Plessy v. Ferguson, racial segregation, counterfactualism, equal protection

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