Public Rights

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Public Rights


Within the domain of thinking about rights, the preponderant nineteenth-century typologies distinguished between natural, political, civil, and social rights, with varying accounts of the relationship among them. In the 1860s, however, as political activists and legal thinkers grappled with the question of the scope and meaning of freedom for those who had previously been held as slaves, the concept of public rights was introduced into debate as a means of articulating resistance to inequalities associated with castelike systems of privilege.

Capturing the element of dignity and honor at stake in the treatment of citizens in public places, public rights encompassed what is now termed equal access to public accommodations and public transportation, and could be extended to prohibit segregation in public schools. The concept and content of public rights, however, were strongly opposed by conservatives, who associated its claims with what they called social equalitya derogatory term they used to evoke images of forced physical intimacy across racial lines, particularly the proximity of black men to white women. Although the term public rights was lost to jurisprudence in the United States by the late 1870s, much of its content would subsequently be incorporated into the expanded notion of civil rights that underlay the twentieth-century movement for justice for African Americans.

The formal category of public rights seems first to have been proposed in the 1830s by an Italian jurist, Pellegrino Rossi, who held the chair of Constitutional Law at the Collège de France in Paris. True to the constitutional monarchy under which he had been appointed, Rossi believed that the state could limit political rights, arguing that access to suffrage should depend on capacity, which he assumed to vary among different groups of citizens. In keeping with the anti-aristocratic spirit of the earlier French Declaration of the Rights of Man and of the Citizen, however, Rossi endorsed universal public rights, within which he included rights of assembly, conscience, and free expression. These, he argued, were fundamental rights of humans as social beings and should not be restricted on the basis of privileges of birth or presumed capacity.

The phrase public rights was introduced and given an expanded meaning in the United States as the end of slavery and the debates over the Fourteenth Amendment to the Constitution made it clear that men and women who had been considered property would now become the bearers of rights. Everything turned on the question: Which rights? Moderates contended that former slaves and other persons of African descent might henceforth hold certain civil and political rights, but that social rights fell outside the proper scope of legislation. This formula could leave broad areas of public lifeincluding education, public transport, and public accommodationoutside the action of equal-rights lawmaking.

In 1867 and 1868, a group of radical delegates to Louisianas Constitutional Convention proposed an alternate schema: The state should guarantee to all its citizens the same civil, political, and public rights and privileges. This construct, advanced by members of an alliance of long-free men of color, local and northern-born white radicals, and former slaves, allowed the delegates to avoid the word social, which their enemies had used to accuse them of seeking an unearned social equality. The radicals won, and the 1868 Louisiana Constitution mandated equal access, independent of color, to public transportation, public accommodations, and places of public entertainment, including saloons and restaurants. For a decade, this document provided a framework for racially integrated schools and permitted victims of discrimination in the public sphere to sue for damages.

A commitment to equal public rights for all citizens subsequently appeared in the platform of the national Republican Party in 1872 and again in 1876. With the reversal of Reconstruction in the late 1870s, however, the concept almost vanished. Newly ascendant white-supremacist Democrats expunged it from the 1879 state constitution in Louisiana, and national Republicans dropped it from their platform.

Among some equal-rights activists, however, a variant of the concept remained alive and well. As southern Democrats pushed forward with the political project of white supremacy in the 1880s and 1890s, restricting suffrage and imposing state-mandated segregation, the lost language of the 1868 Louisiana Constitution became a touchstone for such figures as Rodolphe Desdunes, a cigar seller who helped mount the challenge to segregation on the railroads that led to the U.S. Supreme Court case Plessy v. Ferguson. The Citizens Committee that arranged Homer Plessys test case drew on a broad base of urban and rural activists, including artisans, schoolteachers, and even some Cuban émigré cigar workers, one of whose leaders framed his support explicitly in the language of public rights (Scott 2005, pp. 8893, 151).

When the case reached the Supreme Court, Plessys attorneys invoked broad anticaste principles rooted in an expansive concept of national citizenship. Their arguments went down to defeat before the Court, whose majority accepted the white supremacists sleight-of-hand that portrayed Plessys opposition to caste distinctions as a presumption to social equality that no law could impose. The language of the briefs drafted for Plessy was nonetheless echoed in Justice John Marshall Harlans memorable dissent, in which he held caste to be antithetical to the principles of the nation.

In its time, the concept of equal public rights provided a coherent basis for claiming formal respect in the public sphere. Its use rested on a coalition and a movement that did not prevail, but it left a conceptual legacy for those who would subsequently renew the struggle under the name of civil rights.

SEE ALSO Caste; Civil Rights; Civil Rights Movement, U.S.; Constitution, U.S.; Human Rights; Justice; Natural Rights; Reconstruction Era (U.S.); Segregation; Separate-but-Equal; Slavery; White Supremacy


Official Journal of the Proceedings of the Convention for Framing a Constitution for the State of Louisiana. 18671868. New Orleans, LA: J. B. Roudanez.

Primus, Richard. 1999. The American Language of Rights. Cambridge, U.K.: Cambridge University Press.

Rossi, Pellegrino. 18351837. Cours de droit constitutionnel professé à la Faculté de Droit de Paris. Vol. 1. Paris: Librairie de Guillaumin et Cie., 1866.

Scott, Rebecca. 2005. Degrees of Freedom: Louisiana and Cuba after Slavery. Cambridge, MA: Harvard University Press.

Rebecca J. Scott

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