Scott focuses on the conflicts in the state of Louisiana over a provision in the post-Civil War Louisiana Constitution of 1868 that guaranteed “public rights” to all regardless of race. While we still live with shockingly high levels of racial discrimination in public accommodations, front and center today are claims that the Constitution's guarantee of religious liberty requires exemptions from state laws that prohibit discrimination on the basis of sexual orientation or gender identity. To understand the historical context within which we confront this issue today, it will help to understand how public accommodations law has changed over time through the course of United States history.

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language of the Fourteenth Amendment, a dignity-based legal theory of affirmative equal rights had by 1867 taken center stage in the cosmopolitan city of New Orleans. Activists formulated the concept of “public rights” as a claim to participation without discrimination in the entire sphere of “common life.” Elections for delegates to Louisiana's Constitutional Convention of 1867–68, held under the broad suffrage mandated by the Military Reconstruction Acts, yielded a convention in which half of the members were men of African descent. Seeking the “impartial treatment of all men” in “[c]hurches, hotels, cars, steamboats, theaters, stores, even schools,” the convention crafted a Bill of Rights that affirmatively guaranteed to all of the state's citizens “the same civil, political, and public rights,” independent of race or color. These innovations in the defense of human rights under law drew from a deep well of anti-caste thinking developed in domestic and transnational discussions conducted in both French and English, with participants from both sides of the Atlantic and the Caribbean. Cosmopolitan progressives such as Edouard Tinchant and Jean-Charles Houzeau worked with Louisiana-born activists including Louis Charles Roudanez, Simeon Belden, and Paul Trévigne to develop and advance the idea of public rights. Legislators crafted and passed state statutes that provided for civil penalties for violation of these rights, along with a private cause of action that could yield both actual and exemplary damages. Throughout the 1870s, however, advocates met a fierce white-supremacist counterattack, one that fused obstructionist litigation, vote suppression, and vigilante violence. A claim to equal treatment under the 1868 constitution was won in the state courts by Josephine Decuir, but was overturned in 1877 at the United States Supreme Court. With the ascent of the Democratic Party, white supremacists–including the lawyer/vigilante Robert Hardin Marr-took their seats on the state Supreme Court. By 1879, the public rights guarantees had been expunged from the state's constitution. Nonetheless, for a crucial decade, the cross-racial politics of Louisiana had overcome many of the deficits of legitimacy that often undercut moments of transitional lawmaking. Delegates to the 1867–68 Constitutional Convention took the opportunity to spell out specific positive rights that they saw as essential to full civil freedom. And at the center, they placed their insistence that the state had an obligation to assure that men and women of color would not be subjected to forced indignity in the public sphere.

Other participants in this forum will have addressed the way American common law shaped the meaning of public rights in postbellum Louisiana. Here I expand on Rebecca Scott's intuition about the transnational character of Louisiana's 1868 Constitution. I do so by suggesting a resonance between French legal writing and the Louisianan understanding of public rights. The innovative spirit of Edward Tinchant becomes all the more striking when his ideas are put into conversation with the language of rights in postrevolutionary France.

Scott gives us an expansive and critically important way of thinking about the ways in which former slaves and formerly free black people like Ransier, Bowers, Holmes, and the men and women of Front Street Church, understood the meaning of freedom and confronted the “all de day and every day” dignitary offenses they faced in the courts, on sidewalks, on public conveyances, in public places of amusement and houses of worship, and in their daily work and family lives. Her account of the response of cosmopolitan activists and lawmakers In New Orleans has tremendous implications for the struggle elsewhere. The concept of “public rights” that activists in Louisiana located in a “claim to respect in the activities of a shared and social ‘common life,’” excited the cause throughout the South.