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No doubt many of those businesses would have excluded or mistreated black customers whatever the law. But in a market free from Jim Crow regulations, other businesses would have welcomed blacks, or at least black dollars, forcing racist enterprises to bear the full cost of excluding or mistreating all those potential paying customers. (This was one of the chief reasons the segregationists pushed for those laws in the first place.) The state, in the eloquent words of the historian C. Vann Woodward, granted “free rein and the majesty of the law to mass aggressions that might otherwise have been curbed, blunted, or deflected.”
Furthermore, this tangled web of regulations, ordinances, codes, and controls was spun during the heyday of Progressivism, precisely when such official actions were least likely to receive any meaningful scrutiny. Southern, despite his otherwise close attention to the many permutations of race and racism, fails to recognize this major defect in the Progressive worldview.
A similar failure handicaps his treatment of one of the era’s rare victories for African Americans. In Buchanan v. Warley (1917), the Supreme Court unanimously overturned a Louisville ordinance segregating residential housing blocks by race. The case involved a voluntary contract between a white seller and a black buyer for a housing lot located in a majority-white neighborhood. Under the law, the new black owner could not live on the property he had just purchased.
Writing for the Court, Justice William Rufus Day held that “this attempt to prevent the alienation of the property in question to a person of color…is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”
Yet Southern dismisses this rare and important victory as “hollow” and incorrectly asserts that it “was decided not on the grounds of human rights, but on those of white property rights.” In fact, the judicial recognition of black rights stood at the very center of the decision. Justice Day’s opinion clearly states that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”
Nor should Southern’s characterization of this victory as “hollow” pass unchallenged. As the legal scholars David Bernstein and Ilya Somin have argued, the Buchanan ruling played a major though sadly underappreciated role in the burgeoning fight for civil rights. “Buchanan could not force whites to live in the same neighborhood as blacks,” Bernstein and Somin write, “but it did prevent cities from stifling black migration by creating de jure and inflexible boundaries for black neighborhoods, and may have prevented even more damaging legislation.” It is well worth noting, they continue, that the South did not adopt South African–style apartheid at this time, despite widespread white support for such measures.
In addition, Buchanan was the first major Supreme Court victory for the four-year-old National Association for the Advancement of Colored People, a huge boon for the organization that would go on to win the landmark Brown v. Board of Education (1954), overturning Plessy. W.E.B Du Bois, an NAACP founder and longtime editor of its newsletter, The Crisis, gave Buchanan credit for “the breaking of the backbone of segregation.”
Despite these significant shortcomings, The Progressive Era and Race deserves careful attention. The Progressive movement unleashed, aided, and abetted some of the most destructive forces in 20th-century America. The better we understand this history, the less likely we are to repeat it.