14th Amendment

The Libertarian Lawyer Who Battled Jim Crow

The relationship between Lochner v. New York and Buchanan v. Warley


At Marginal Revolution, George Mason University economist Alex Tabarrok offers some interesting thoughts on Richard Rothstein's new book The Color of Law: A Forgotten History of How Our Government Segregated America. "Rothstein is no libertarian," Tabarrok writes, "but to his credit he does acknowledge that one of the few anti-segregation forces in the early twentieth century was the Lochner influenced reasoning of the Supreme Court."

Tabarrok refers to the 1917 case of Buchanan v. Warley, in which the Court struck down a Louisville, Kentucky, ordinance that segregated residential housing blocks by race. The Court invalidated that Jim Crow regulation as an unconstitutional violation of property rights and economic liberty under the 14th Amendment.

Here is how Rothstein summarizes Buchanan v. Warley in The Color of Law:

The Court majority was enamored of the idea that the central purpose of the Fourteenth Amendment was not to protect the rights of freed slaves but a business rule: "freedom of contract." Relying on this interpretation, the Court had struck down minimum wage and workplace safety laws on the grounds that they interfered with the right of workers and business owners to negotiate individual employment conditions without government interference. Similarly, the Court ruled that racial zoning ordinances interfered with the right of a property owner to sell to whomever he pleased.

The central holding of Lochner v. New York (1905) was that the 14th Amendment protects a fundamental right to economic liberty, including the right to liberty of contract. It is not an unlimited right; it is subject to reasonable government regulation. But in order for such regulation to pass muster in court, it must serve a legitimate and demonstrable public health or safety purpose. That same reasoning underlines the Court's opinion in Buchanan v. Warley.

Library of Congress

The libertarian lawyer Moorfield Storey argued and won Buchanan before the Supreme Court. A thoroughgoing individualist, Storey championed laissez-faire economics, denounced militarism, and opposed the rise of the populist Democrat William Jennings Bryan. In addition to serving as the president of the American Bar Association, Storey was a founder and president of the Anti-Imperialist League and was the first president of the NAACP.

Storey led the NAACP's fight against the Louisville segregation law. In his brief to the Supreme Court, Storey (with co-lawyer Clayton B. Blakely) argued that the law "destroys, without due process of law, fundamental rights attached by law to ownership of property." The law's purpose was not "to prevent conflict and ill-feeling" between the races, as it claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter."

Lochner v. New York was one of the legal authorities cited in support of those arguments.

In its brief, the state of Kentucky argued that the federal courts had no business interfering with the power of local majorities to enforce their social and economic preferences via regulation. "Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object," the state maintained, "is a legislative and not a judicial question."

The Supreme Court disagreed and nullified the Jim Crow law. It was a far-reaching decision. At that time, other municipalities around the country were considering or even implementing their own residential segregation schemes. Buchanan stopped those schemes once and for all. According to Storey's colleague at the NAACP, W.E.B. DuBois, Buchanan should be credited with "the breaking of the backbone of segregation."

That is the landmark case whose reasoning Rothstein slights as a "business rule."

It is also worth noting that the same "business rule" that helped protect black Americans from Jim Crow in Kentucky also helped to protect Chinese-Americans from racist government abuse in California.

In 1882 the city of San Francisco passed an ordinance that required anyone seeking to operate a laundry business within city limits to first obtain "the consent of the board of supervisors, which shall only be granted upon the recommendation of not less than 12 citizens and taxpayers in the block in which the laundry is proposed to be established, maintained, or carried on."

That law's real objective was to prevent Chinese immigrants from further establishing themselves in the laundry business. One of those would-be laundry operators, Quong Woo, filed suit in federal court, arguing that the ordinance served no lawful government purpose.

The court agreed. Writing for the Circuit Court for the District of California, Justice Stephen Field, one of the intellectual architects of the Supreme Court's later Lochner-ian jurisprudence, held that government regulations may not be used "as a means of prohibiting any of the avocations of life which are not injurious to public morals, nor offensive to the senses, nor dangerous to the public health or safety." Justice Field struck down the law for violating the 14th Amendment.

The city's requirement that prospective business owners first receive permission from their neighbors, Field observed, cannot possibly be justified on health or safety grounds. All the requirement did was subject the exercise of a basic economic freedom to "the favor or caprice of others." Quong Woo, Field pointed out, was more than happy to abide by local regulations and to pay whatever fees the city required; yet on account of the "great antipathy and hatred towards the people of his race," he simply could not locate twelve neighbors willing to green light his enterprise.

Once again, the "business rule"—otherwise known as the fundamental right to economic liberty under the 14th Amendment—put a stop to an act of racist government abuse.

Related: How the Government Created Housing Segregation [Reason Podcast]

NEXT: The Return of Criminal Justice Reform

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  1. Laws similar to the 1882 ordinace still live on in the form of environmental impact studies. They are very effective at letting neighborhoods prevent any sort of activity they don’t like. In the name of public safety this time.

  2. OT: I just saw this is Donald’s UN speech.

    The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

    I must say I much prefer this to Barry’s constant and incessant derision of the country he ostensibly represented. And there was also a bit calling out Venezuelan socialism. Fun times.

    1. I only read the transcript of the speech but Trump also mentions that he will represent America’s interests 100%.

      Evidently, there was a collective shock by lefties and world leaders that the USA would not be kissing anyone’s ass anymore and the USA will be moving away from socialism’s failed policies.

      1. the USA will be moving away from socialism’s failed policies

        Sure there are good things from the Trump administration with regulations and some cabinet appointments, which is great, but there’s still plenty of ultra-big government to go around.

    2. “Rocket Man”

      I believe that is a song by Elton John about a guy whose job is to fly a rocket in space, but it’s lonely (ronery) up there?

      1. Thanks-I have that song stuck in my head now

        1. Perhaps this will help:
          “Friday, Friday, everyone’s looking forward to the weekend, weekend!”

    3. Have you watched the whole thing? I see a lot of hullaballoo about it, but the clips I’ve seen have seemed like business as usual.

      1. I would not call what Trump says or how he says it- “Business as usual”.

      2. From what i heard of it, the only really remarkable thing was how hard various Pundit-Americans had to twist to make it seem like it wasn’t business as usual.

  3. Who would have ever thought that federal, state and local governments could become racist corrupt cronies?

    Oh yeah, the Founding Fathers who implemented checks and balances to both federal and state power.

      1. It’s like giving the kids the keys to the car. You can train them all you want and give them all sorts of rules and warnings, but it won’t guarantee he won’t get in a wreck.

        Likewise with handing the country’s keys to succeeding generations.

        1. True to some degree except you are underestimating the bad driver training to fit your analogy.

          This more like Mr. Magoo teaching a kid how to drive and has been brainwashing the kid about how everyone else in the neighborhood should pay for his first car because “its fair” and everyone needs a livable transportation situation.

          1. Best description so far. Don’t forget to add that it is everyone else who is responsible for taking care of the car. Also add that when you wreck the car regardless of if it was your mistake or not that it was someone else’s fault.

      2. As Spooner observed a century and a half ago, “the Constitution has either authorized such a government as we have had, or has been powerless to prevent it. In neither case is it fit to exist.”

    1. “Checks & balances” on govt. power, implimented by govt.? Yea, that will work like putting the acquised on trial before a jury of their friends/family.

      Once political power is created, no limitation is possible. The only “limit” is to remove it completely, and restore all power to the individual. That would require a new political paradigm of voluntary government based on reason and non-violence.

      At present, we have a ruling elite who “check” themselves and define what “balance” means. If we the people disagree they ignore us. We can change the faces, but not the results. New faces still serve and judge themselves.

  4. Modern day progs, like their predecessors, are still a pretty racist bunch since most prog policies like environmentalism reflect the aesthetics of wealthy white progs, rather than what would benefit the disadvantaged. And of course, they hide behind “we know what’s best for them” which is even more racist.

    1. Not sure if it is “white guilt” or their intellectual arrogance that causes them to do that. But it is why progs not only are racist but elitist. In fact it may be dishonest to say racist. Their entire philosophy is based on the fact they believe that an elite group of intelligentsia is meant to organize and rule society. They see themselves as that elite group I mean how many times have you heard Warren and the rest of her Ivy league hive mind say that they need to protect us ignorant masses from this or that and organize our lives from cradle to grave. Even when their plans lead to disaster their arrogance blames everything else almost to say “Our plan was good but the ignorant masses just couldn’t see that so they made it fail.” It is why they despise Capitalism cause things happen without direction from the elites.

  5. Wait, the first president of NAACP was a libertarian? Recruitment tool!

  6. It seems like the court’s ruling would also prohibit requiring licensing for tour guides.

  7. “…right to liberty of contract…is not an unlimited right.”? An action is by permission or by right. If it requires permission it is not a right; it is a privilege. Therefore, all rights are unlimited.

    Govt. limitation of rights is a denial of the concept of right.

    While rights logically originate from the right to life, all rights are fundamental. Violation of any right violates all rights, in principle.

    The necessity of obtaining permission to exercise a right is a limit on rights, a contradiction of the concept of right. Laws that require permission to exercise a right are unconstitutional, and therefore void, in theory. However, govt. decides if it is guilty of violation of rights or quilty of making void laws. And it can reverse previous decisions, making reliance of presidence impossible. If govt. can reverse itself, constantly change its mind, how can law exist? It can’t. Rule is not by law, but at the whim of people in power. Rule is as tyrannical as it always has been. Only perception of rule has changed. Due to the overpowering influence of early social indoctrination and continuing propaganda, the mass delusion is possible.

    Individuals who are victims of govt. may testify and expose the tyranny only to be ignored. That happens in all governments. I have seen it on every level, from neighborhoods to the federal courts, for over 60 years.

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