Public rights, social equality, and the conceptual roots of the Plessy challenge.

• Author: Scott, Rebecca J.

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.

TABLE OF CONTENTS INTRODUCTION I. WRITING PUBLIC RIGHTS INTO LAW II. LITIGATING IN DEFENSE OF EQUAL "PUBLIC RIGHTS" III. ORGANIZING THE Plessy CHALLENGE CONCLUSION The citizens of this State ... shall enjoy the same civil, political, and public rights and privileges, and be subject to the same pains and penalties.

Louisiana Constitution of 1868 (1)

Slavery not only introduced the rule of caste but prescribed its conditions, in the interests of that institution. The trace of color raised the presumption of bondage and was a bar to citizenship. The law in question [the Separate Car Law] is an attempt to apply this rule to the establishment of legalized caste-distinction among citizens.

Brief of the plaintiff in error, filed April 6, 1893, Plessy v. Ferguson (2)

INTRODUCTION

In 1892, the Louisiana Supreme Court ruled that when Homer Plessy refused to give up his seat in a whites-only, first-class train carriage he was displaying an "unreasonable insistence upon thrusting the company of one race upon the other, with no adequate motive." (3) In 1896, the U.S. Supreme Court agreed that the citizenship granted by the Fourteenth Amendment contained no grounds on which to assert a right to the "social equality" that they claimed Homer Plessy's refusal of legally mandated segregation implied. Indeed, Justice Henry Billings Brown declared that "in the nature of things" the Amendment could not have been intended to "enforce" social equality. (4) The Court therefore ruled that the legislature of the State of Louisiana had not violated the U.S. Constitution when it passed a statute that obliged railroad companies to provide "equal but separate" railway cars and to have their agents assign passengers to one or another car based on race. (5) Homer Plessy's contrasting claim that the statute in question established "an insidious distinction and discrimination between citizens of the United States, based on race, which is obnoxious to the fundamental principles of national citizenship" thus failed. (6)

Precisely because the Plessy decision appears, in retrospect, to have been both repellent and consequential, it often seems to tempt constitutional analysts to shift a portion of the burden for its most repellent aspects onto what is imagined to be "the historical context." In turning to the historical record to illuminate the Plessy case, legal scholars have characteristically asked a set of broad questions derived from the language of the decision: Did the drafters of the Fourteenth Amendment indeed mean to include "social equality," or racial integration, as a component of citizenship? Was racial segregation perhaps already a well-established norm, rendering the decision a mere formality? And most importantly, could one have expected any other outcome from within a society so pervaded with racism of various kinds?

While deploring the decision in Plessy, analysts often come up with answers that hew rather closely to the framing proposed in the majority opinion. After examining the complexity of the debates and maneuvering surrounding the drafting of the Fourteenth Amendment, William Nelson concludes that the Reconstruction Congress had not resolved "the question whether the Fourteenth Amendment permits or prohibits segregation." (7) In Nelson's view, the judges in Plessy should not be charged with racism for having chosen to interpret an indeterminate doctrine in a way that conformed to the pressures of the time. (8) Michael Klarman argues that the decision in Plessy "simply mirrored the preferences of most white Americans" and that a contrary decision could hardly be expected unless a strong social movement had existed that could support a campaign against segregation. (9) Owen Fiss views the outcome of the case as doctrinally "a foregone conclusion," and characterizes Homer Plessy's attorney as a visionary and a legal Don Quixote whose "conception of citizenship" was "shaky." Charles Lofgren views the decision as in keeping with "the spirit of the age." (10)

In these formulations, "historical context" takes on an almost fatalistic explanatory value. Michael Klarman thus writes, "Justices in the Plessy era were too immersed in their historical context to spot the oppression that historical hindsight can readily see in racial practices at the turn of the twentieth century." (11) This is, I will argue, an unnecessarily impoverished way of thinking about the relationship of law and historical inquiry. For one thing, the bog of determinism versus contingency is a famously deep one, generally better skirted than plunged into. (12) After a certain point, most things "have to" turn out more or less the way they turned out--but this hardly means that we are bound from the outset to accept the terms of the actual decision as defining the parameters of the possible in a given society. Moreover, invoking the larger "historical context" to argue that rights-denying court decisions were largely epiphenomenal seems oddly ahistorical: as those who fought over the legislation were well aware, law was an absolutely crucial component of formal segregation, and formal segregation was a linchpin of the conscious political project of white supremacy. This is why the Plessy challenge drew the energies of equal-rights activists for many years, even as they recognized the high probability of losing the case. (13)

The dialogue between historians and legal scholars is productive precisely because historical context is not simply a backdrop, a stage setting, or an external force pressing judicial events in one direction or another. A full historical context incorporates wide networks of social interaction and situates legal and other initiatives within shared and competing structures of discourse in order to illuminate the origins of a case as well as its meanings for different actors. (14) Knowing that the 1890s were marked by pervasive racism, or that the Republican Party was becoming more conservative, or that "public opinion" did not endorse "social equality" does not really tell us how the challenge was seen by Homer Plessy, his allies, and his enemies. Such generalities do not capture the dynamics of their activism and the historical constraints upon it. The New Orleans Citizens' Committee for the Annulment of the Separate Car Law set out to create a context, drawing upon public practices, shared values, and social networks that now require considerable digging to reconstruct. Tracing these ideas and practices, one can see how a group of men and women built on their own understandings of the past and deployed vernacular as well as formal concepts of equality. Some among them may have been Quixotes, but more in the sense of citizens insisting on honorable conduct than in the sense of men and women tilting at windmills. (15)

In this Article I will argue that Homer Plessy's supporters--and his opponents, though they were only later to acknowledge it--envisioned his legal challenge to a large extent as a claim to what the 1868 Louisiana Constitution had defined as public rights. That constitution, in force until 1879, had assured all of the state's citizens access to the same "civil, political, and public rights and privileges." (16) For Plessy's fellow activists in New Orleans, "public rights and privileges" were essential to the substance and symbolism of the equal dignity of citizens in the public sphere. Moreover, a claim of equal standing in public directly challenged the effort to impose white supremacy; it was not simply an expression of a preference for one rather than another mode of assorting individuals on a train. (17) "Social equality," by contrast, was a label their enemies had long attempted to pin on the proponents of equal public rights in order to associate public rights with private intimacy and thereby to trigger the host of fears connected with the image of black men in physical proximity to white women. To conflate the phrase "social equality" with an imagined taxonomy of civil, political, and social rights is to mistake an insult for an analytic exercise. (18)

The argument of this Article will proceed in three steps. First, I will explore the process by which the concept of "public rights" made its way into the 1868 Louisiana Constitution and the disparate historical traditions on which the delegates to Louisiana's constitutional convention seem to have drawn. Second, I will trace the public rights jurisprudence that...