In 1776, citing “patient sufferance” of “repeated injuries and usurpations,” the colonies of British North America declared independence from the British crown. Having secured independence, they drafted a constitution grounded in republican principles to “secure the blessing of liberty” that in the words of John Adams, would inspire the people “with a conscious dignity, becoming freemen.”Footnote ¹ Yet it was clear from the beginning that a great many Americans would experience neither dignity from becoming free men nor the blessings of liberty. Racial slavery was embedded in the new nation and countenanced in its constitution. Frederick Douglass famously recounted the moment when the offenses against his dignity became unbearable and he was fired with “a renewed determination to be a free man.” His decision to fight Edward Covey, the man hired to break his back and his spirit, Douglass wrote, “rekindled in my breast the smouldering embers of liberty” and “recalled to life my crushed self-respect, and my self-confidence.” Fighting Covey, he reclaimed “the essential dignity of humanity.”Footnote ² During and after the Civil War, enslaved and free black people fought to transform a nation founded on republican principles that would guarantee only white men a “dignity, becoming freemen” into a nation in which black men and women could also find “a dignity, becoming freemen.” “We ask only for even handed justice,” the delegates to the 1865 South Carolina Colored Convention wrote.Footnote ³

In “Discerning a Dignitary Offense: The Concept of Equal ‘Public Rights’ During Reconstruction,” Rebecca Scott chronicles the fight for justice, named as a “claim to respect in the activities of a shared and social ‘common life’” in the radical, cosmopolitan, anti-caste, abolitionist city of New Orleans. Here, the concept of “public rights” would have its fullest and most vociferous hearing, culminating in the adoption of a new state constitution in 1868 that prohibited discrimination in the public sphere on the basis of race or color. Led in part by a cosmopolitan set of activists, black people in New Orleans waged a sophisticated and successful campaign for the idea that the denial of equal public rights constituted a dignitary offense. To lay “claim to equal access to goods and services,” in other words, was to lay claim to “formal respect in the public sphere.” The 1868 state constitution guaranteed “all of the state's citizens…‘the same civil, political, and public rights,’ independent of race or color.”Footnote ⁴ In the years immediately after the Civil War, black people fought and won many such battles. Many of these victories would not survive the nineteenth century. By the end of the nineteenth century, a series of Supreme Court decisions had exposed the limitations of the Civil Rights Act of 1875 and the Fourteenth and Fifteenth Amendments to protect the lives, civil rights, and dignity of black people. But the Reconstruction-era victories left a powerful legacy that informed the fight over public rights in the twentieth century and continues to inform those of the twenty-first century.

Scott's article is a welcome intervention in the literature on Reconstruction, a revolutionary moment that witnessed, as Steven Hahn writes, “an unprecedented and almost unimagined expansion of civil and political rights.”Footnote ⁵ It raises important and difficult questions. A rich and vast literature on the Reconstruction era has deepened our understanding of the struggles over land, education, the vote, the family, and labor after emancipation.Footnote ⁶ Scholars have paid less attention, however, to the fight over “public rights” that became coupled to what Scott describes as “a dignity-based legal theory of equal rights.” Importantly, this fight was linked to those other rights claims over land, family, education, and the vote.Footnote ⁷ While attending to the juridical and political complexity of Louisiana, the trans-Atlantic world to which its economy and politics were connected, and the distinctiveness of the activist community of New Orleans, Scott's article also establishes a critical theoretical benchmark for thinking about the struggle for public rights beyond Louisiana. What, for example, can we learn from the struggle in Louisiana about the struggle for public rights elsewhere in the South? How, conversely, might the struggles and the discourse surrounding them in other places contribute to our understanding of the struggle in Louisiana? Did black people elsewhere in the South understand and invoke “a dignitary understanding of the refusal of service” as “enforced public” indignity?Footnote ⁸ Cornelius Holmes, who had been enslaved in South Carolina, recalled the pervasiveness of the indignity, the “all … day and every day” assaults that pervaded “our politics, in our justice courts, on our highways, on our side walks, in our manners, in our ’ligion, and in our thoughts.”Footnote ⁹ In my comments, I turn to other places, with a focus on South Carolina, as cases in point. South Carolina did not share the particular juridical complexity of Louisiana, yet activists there came to similar conclusions and developed similar notions about public rights and citizenship in a republic.

“Discerning a Dignitary Offense” provides a grounding for thinking about the ways in which black people in other places at similar moments named and contested dignitary offenses in the courts; on sidewalks, steamboats, and streetcars; in public places of amusement, hotels, and houses of worship; and at the polls. The debates in Louisiana reflected perforce the region's unique political and social history: its cosmopolitanism and its ordinariness in the context of racial slavery. Scott's work provides a pivot for exploring this distinctiveness and ordinariness, how the concept of public rights could arise in a multiplicity of juridical complexities that witnessed different intellectual and human migration patterns and where the institution of slavery developed differently depending on time, space, and crop.Footnote ¹⁰ Comparing the struggles in South Carolina and Louisiana reveals the ways in which the battle over public rights was shaped by such complexities as well as the politics of antiracism and antislavery. In running away, fighting back against daily abuse, bringing freedom suits, and leading and participating in revolts, enslaved people kept up a war against their enslavers.Footnote ¹¹ Their refusal to accept the attempt by white people to render them mute participants in and witnesses to their own degradation revealed their understanding of cracks in the juridical, political, and military systems of slavery, cracks that they had helped make.Footnote ¹²

In the decades before the Civil War, New Orleans was the nation's largest slave trading market in the Deep South and the largest cotton exporting port. It was a crossroads of political ferment, and revolutionary ideas and movements in the Atlantic world.Footnote ¹³ Among the activists and politicians who formulated the concept of “public rights” in New Orleans were men and women who had been freeborn or emancipated before the war. Some were world travelers and well acquainted with revolutionary movements in the broader Atlantic world. But neither their free status, which gave some of them room to maneuver economically and socially, nor their cosmopolitanism, protected them from racist assaults on their personal dignity or endowed them with the privileges and rights of citizenship that were enjoyed by white men. The antidiscrimination politics that they pursued were fused as much in a local as in a transnational context, drawing, Scott writes, “on concepts developed inside” as well as “outside the United States.”Footnote ¹⁴

***

With the end of the Civil War in 1865, the black congregants of the Front Street Methodist Episcopal Church in Wilmington, North Carolina sought full and complete control of the church in which they had long been the majority. In 1861 when the war began, they represented 900 of the 1400 members of the church. By the time the Union army occupied Wilmington in February1865, the number of white congregants had dwindled from 500 to 200, but the number of black congregants remained strong at 800. Not only were they the majority, the black congregants noted, but they, “the colored portion of the congregation,” had contributed “the principal part of the money that was paid for building” the church that had been erected on ground “given to the colored people of Wilmington, for their use forever for church purposes.” When they were enslaved, they had been forced to have the deed placed in the name of white men. They now claimed the property that they believed to be rightfully theirs, and the right to be treated with dignity and respect as they took up seats in the main sanctuary, which the white pastor characterized as “ bad behavior,” as he did their move to use “our church for conventions and other meetings not religious.” They would no longer suffer the indignity of having to sit in the balcony nor would they be ministered to by Reverend L.S. Burkhead, the pastor who they knew to be a Confederate rebel.Footnote ¹⁵ In his first meeting with the church's black class leaders, Burkhead rejected their demand that he vacate the pulpit, warning them that should “they pursue an unwise course and array themselves against the whites sooner or later they might stand a good chance to be destroyed as a race for they could never contend single-handedly and successfully against the white man.”Footnote ¹⁶ The black congregants remained steadfast in their determination to oust Burkhead and take control of the church, refusing to go back to a church that required them to sit in the balcony. The claim that they staked to Front Street (and won) was important both as a matter of property rights and as a matter of dignity.

Scott's article reminds us that dignity was not inconsequential to the way that black people imagined freedom and citizenship. The records of the Bureau of Refugees, Freedmen, and Abandoned Lands, for example, register the enormity of the assaults that black people endured in every aspect of their public lives. At the postwar colored conventions and state constitutional conventions, African Americans put the question of public rights and dignity on the table and put antidiscrimination principles in state constitutions. To the activists in Louisiana, “public disrespect” constituted an assault on one's “personal dignity,” or, in the words of the delegates to the Colored People's Convention of South Carolina, on one's “good name.”Footnote ¹⁷ The Colored People's Convention of the State of South Carolina that met in 1865 drafted a “Declaration of Rights and Wrongs” affirming “the just claim, ownership, or lawful title which a person has to own his body and mind.” By contrast, slavery violated the principle “of justice and humanity…which consists of personal liberty, the right to be free in our persons, and the right of personal security and protection against injuries to our bodies or good name.”Footnote ¹⁸

Black people saw the black codes passed by unreconstructed Southern states as efforts not only to create a subjugated working class but also to force its individual members to endure humiliations in every corner of public and private life. Indeed, the object was to vacate black people's rights to a private life. As Scott writes, “public disrespect was aimed at undermining individual dignity.”Footnote ¹⁹ The South Carolina Colored People's Convention called for a “code of laws for the government of all, regardless of color.” Like activists in Louisiana, the delegates demanded that the “same laws which govern white men shall direct Colored men” and demanded the repeal of laws “that apply to us on account of our color” or “complexion.”Footnote ²⁰ In South Carolina as in Louisiana, black delegates to the state constitutional convention insisted on the inclusion of language that explicitly addressed the humiliations that black Americans suffered in the public arena.Footnote ²¹ And as in Louisiana and elsewhere, they engaged in spirited debates on their right to the use of spaces of “common life” and “public resort,” including common carriers licensed by municipalities and state governments, and drew on quite similar anti-caste language. Similarly the 1866 Constitution of the North Carolina Equal Rights League, for example, called for “the repeal of all laws and parts of laws, State and National that make distinctions on account of color.”Footnote ²²

As they debated these issues, black activists and politicians considered the necessity or prudence of incorporating explicitly non-coded racial language—such as “race and color,” “born free and equal,” or “persons of color”—into the new laws and state constitutions. In the debates at the 1868 South Carolina Constitutional Convention, Alonzo Ransier of Charleston supported an unambiguous statement of civil and political equality, but opposed incorporating the phrase “race and color.” Francis L. Cardozo, who, like Ransier, was born a free person before the war, disagreed, arguing that the racial history of the United States made it necessary to “fix” the question of rights “in the Constitution in such a way that no lawyer, however cunning or astute, can possibly misinterpret the meaning,” with “not a loop-hole…left that would permit them to do it constitutionally.” He believed that “just so soon as they had the power, whether by the election of a Democratic President, or by an increase of emigration,” white people “would endeavor to overthrow the Constitution.” Now, “while they had a chance to do it,” Cardozo argued, “by all mean let them insert the words ‘without distinction of race or color,’ wherever it was necessary to give force and clearness to their purpose.”Footnote ²³ Cardozo's sentiment aligned with black Charlestonians who had hoisted banners proclaiming their freedom when they welcomed federal soldiers in February 1865, including one that notably read, “We know no caste or color.”Footnote ²⁴

Heated debate also emerged among the delegates to the South Carolina Constitutional Convention over whether to incorporate the phrase “persons of color” into the Bill of Rights. Gilbert Pillsbury, a white Northerner who favored the phrase, reminded the delegates that the word, “slave” did not appear in the Constitution and that the delegates at the constitutional convention had chosen instead the “unfortunate polite allusion to this class of property” as “persons held to service.” Recalling that “nothing but the cannon of the United States knocked the sentiment of slavery out of the Constitution,” he called on the men now assembled in Charleston to chart a new path for South Carolina, eschew “polite language,” and endorse a Bill of Rights that recognized “beyond peradventure that the colored man is, in fact, a citizen.”Footnote ²⁵ In the end, none of the forty-one sections of Article 1 of the “Declaration of Rights” incorporated in the 1868 South Carolina Constitution invoked the phrase, “persons of color.” Only one section referenced race and color at all, but it was consequential. “Distinction on account of race or color, in any case whatever, shall be prohibited, and all classes of citizens shall enjoy equally all common, public, legal and political privileges,” Section 39 read.Footnote ²⁶ Like the Louisiana activists, the South Carolina activists fixed to their state's constitution an antidiscrimination clause that emphasized “common” and “public” rights and privileges.Footnote ²⁷ The provision was adopted in the wake of direct challenges to the system of segregation by black citizens.

In 1867, strikes by the black longshoremen's union in Charleston and protests against the segregated street railroad system built in 1866 roiled efforts to build a new order of white supremacy. Black women sat where they pleased on public cars and sued when they were refused passage or dragged off the cars. Forcibly removed from a car in 1867, Mary Bowers filed a complaint with the Freedmen's Bureau which resulted in the company being forced to desegregate its cars. Mary Rollins brought suit against a steamer and won a judgement of $250.00. Black politicians were keenly aware of the ways in which black women were singled out for humiliation. Alonzo Ransier was among those who protested plans to segregate the city's new performing arts center. A segregated arts center, he wrote, constituted a dignitary affront to his wife and he “was not willing that his wife should be insulted till the first of May to oblige anybody.”Footnote ²⁸

Legislation passed by the first legislature convened under South Carolina's 1868 constitution incorporated the language of race and color. In 1869, the legislature passed a bill establishing enforcement powers for the protection of the new rights. “An Act to Enforce the Provisions of the Civil Rights Bill of the United States,” approved in February 1869, made it unlawful for “common carriers, or any party engaged in any business, calling or pursuit, for the carrying on of which a license is required by law, municipal, State, Federal or otherwise, to discriminate between persons on account of race, color or previous condition, who shall make lawful application for the benefit of such business, calling or pursuit.” Persons convicted of the crime faced a fine of not less than $200 or imprisonment for not less than 6 months in the penitentiary.Footnote ²⁹ Noting that “serious doubts are entertained as to whether the remedies in certain cases under existing Statutes are applicable to colored as well as white persons,” the “Act to Secure Equal Civil Rights, and to Provide for the Enjoyment of all Remedies in Law by all Persons, Regardless of Race or Color,” passed a year later, referred back to Article 1, Section 39 of the Constitution prohibiting “distinction on account of color” to establish that black people had the same rights as white people to institute suits or proceedings in “any matter, civil, penal or criminal” and the right to the same remedies.Footnote ³⁰ The following month, the legislature passed “An Act to Enforce the Provisions of the Civil Rights Bill of the United States Congress, and to Secure to the People the Benefits of a Republican Government in this State.”Footnote ³¹ The language in the preamble is worth lingering over.

In a republican government, the preamble stated, “all things pertaining to the government are in common among all the people” and “it follows that no person is entitled to special privileges, or to be preferred before any other person in public matters, but all persons are equal before the law.” It clarified in no uncertain terms that discrimination “between persons on account of race, color or previous condition” on all “common carriers” in “which a license or charter is required by any law, municipal, State, or Federal, or by any public rule or regulations” was unlawful. Failure to abide by the law was to be punished by a “fine of one thousand dollars, and also by confinement at hard labor in the Penitentiary for five years; and if such fine be not paid, the convict shall be confined in the Penitentiary at hard labor, as aforesaid, for not less than six years.” The bill also specifically prohibited discrimination on the basis of race, color, or previous condition in “licensed or chartered” theaters and other places of amusement or recreation, with violations to be suffered by a fine of $1000 and “imprisonment at hard labor in the Penitentiary for three years.” It fined individuals who abetted the commission of these offenses whether “commander, conductor, manager or superintending person . . . of any kind of vessel or vehicle, theater or any other place mentioned in the act” with three years’ imprisonment and the loss of the right to vote and hold office in the state. Corporations acting under state license and parties thereto found to be in violation were subject to a fine of $1000, or 3 years’ imprisonment. Solicitors who failed to carry out the law were to “be deemed to have committed a misfeasance in office, and, on conviction, shall forfeit his office, and be incapable of holding office for five years, and shall also pay a fine of five hundred dollars.” Not only was the attorney-general to “make the most effective prosecution possible . . . on behalf of the State,” but also, the solicitor and the attorney general were forbidden to arbitrarily dismiss charges by entering “a nol. Pros” except by permission of the court.Footnote ³²

Despite such prohibitions, white people in the state remained fiercely opposed to desegregation and were defiant. Shopkeepers refused black patronage and sometimes charged higher prices to discourage it. In 1869, an attempt to punish Charleston proprietors who discriminated by revoking their licenses failed. The municipal licensing law was amended the following year to add additional penalties for violating the law, but this apparently proved no more effective. To test adherence and enforcement, black politicians such as Ransier visited establishments and had the proprietors arrested when they were refused service.Footnote ³³

In sum, black men and women in South Carolina adopted strategies of resistance and a language of rights that the activists in New Orleans would have found familiar. Charleston, South Carolina was also home to a cosmopolitan free black population that included Haitian refugees and exiles from Saint-Domingue and their descendants, men and women who like the Tinchants of New Orleans, Antwerp, Mobile, Havana, Veracruz, Santiago de Cuba, and Jérémie knew something of the political currents of the Atlantic world and had chafed at the dignitary affronts that came with the refusal of service because of their color. They included the descendants of Elizabeth Clevland Hardcastle, a free woman of color born in Africa and educated in England, who was a slaveholder in colonial South Carolina.Footnote ³⁴ In Charleston, New Orleans and elsewhere men and women who had been free before the war saw the badges and incidents of slavery follow them no less than they did men and women who had been enslaved.Footnote ³⁵ And they found that they had no more of an automatic claim to equal public rights than former slaves who, the white pastor of Front Street Church complained, brought to the struggle, “pure anti-slavery gospel.”Footnote ³⁶

In her article, Scott gives us a detailed road map for forging new ways of thinking about the long struggle for dignity waged through the demand for public rights, insights that promise to enrich our understanding of the period of Reconstruction and the loss of civil rights that followed. The white supremacist project that defeated the radical movement for public rights was inextricably linked to voter repression and to dignitary offenses rooted in the soil of slavery. When he showed up to serve as supervisor for a polling precinct in the November 1880 election, George Glymph was denied the right to enter the polling place. Asked by the white managers at the polling place for his “authority” or credentials, he showed them his appointment as supervisor. They “said it was not right,” he would later testify under oath, “that I could not come in unless over their dead bodies.” Although he was allowed to take the names of the voters outside the polling place, he was not allowed “to go into the room when the voting was going on.” According to Glymph and other black poll watchers, Republican tickets were burned and removed from the boxes. White men surrounded black men to prevent them from entering the polling places and marked the backs of the men with chalk. All so marked were prevented from voting.Footnote ³⁷

The fight for public or civil rights during and after the Civil War was not a new struggle, but rather drew on and enlarged the slaves’ war and struggles in the Northern states. In the antebellum North and the nation's capital, black people had called for citizenship and suffrage and fought for access to public accommodations, protesting segregated railroads, street cars, schools, professional organizations, and places of amusement although they did not use the discourse of “public rights.”Footnote ³⁸ For example, the 1865 Massachusetts law prohibiting any “distinction or restriction on account of color or race … in any licensed inn … public place of amusement, public conveyance or public meeting,” was not couched in the language of public rights.Footnote ³⁹

In the decades to come, “the right to ride” became shorthand for the right to “respect in the public sphere” or public rights. “Discerning a Dignitary Offense” is a forceful reminder of the Reconstruction era roots of the twentieth century fight for public rights, a call to rethink the origins, transmission, and adoption of rights claims and, in particular, the claim to, and place of, public rights in the larger freedom struggle with attention both to the language in which this rights claim was encapsulated and the political struggles that connected black people across the South and the broader Atlantic world.