March 2008 Vol. 106 No. 5 THE REVIEW

Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge

Rebecca J. Scott

This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a well-established, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens’ rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a “social equality” that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867–68, however, had defined citizens’ rights within a quite different typology, conferring a state constitutional guarantee to all citizens of the same “civil, political, and public rights,” and providing the basis for successful litigation against forced separation on public transportation and in public accommodations. Understanding this “public rights” construct, and Louisiana’s eleven-year experience under the 1868 state constitution, enables us to see Homer Plessy’s challenge to Louisiana’s Separate Car Law as emerging within a complex exchange of ideas and practices among activists who traced their ancestry to Africa, the United States, France, and Haiti. Far from being visionary or anachronistic, the Plessy challenge was solidly grounded in time and place. It drew upon both a dense social network of urban and rural supporters, and a creative line of vernacular political thought.

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