The Most Important Civil Rights Case You've Never Heard Of

|The Volokh Conspiracy |

I have a new article in the Cumberland Law Review, for a colloquium on the one hundredth anniversary of Buchanan v. Warley. Here's the abstract:

In 1917, in Buchanan v. Warley, the Supreme Court invalidated a Louisville residential segregation law, one of a wave of such laws spreading through the United States. Even though Buchanan v. Warley was a dramatic victory for racial equality at a time in American history when anti-black racism was at a post-Civil War peak, with an avowed segregationist occupying the White House, the opinion was largely ignored or misinterpreted until recently. The problem has been that Buchanan does not fit the dominant narrative about the so-called Lochner era Supreme Court. Part I of this article reviews scholarship that has challenged the traditional dismissive view of Buchanan v. Warley over the last twenty years.

Part II of this article suggests various research topics raised by Buchanan v. Warley that should receive more scholarly attention, including: (1) How did African Americans manage to migrate to formerly all-white neighborhoods despite restrictive covenants and other barriers?; (2) To what extent did Buchanan v. Warley reflect a viable alternative civil rights vision to the progressive vision that came to dominate legal discourse?; (3) Under what circumstances judicial intervention on behalf of minority groups is likely to occur, and when it is likely to be successful; and (4) To what extent can early twentieth-century progressivism, as opposed to societal racism more generally, can be blamed for the rise of residential segregation ordinances that led to Buchanan?

Richard Rothstein's well-received The Color of Law: A Forgotten History of How Our Government Segregated America has focused new attention on government policies that contributed to racial segregation. Rothstein doesn't spend too much time on Buchanan, because the case's major effects were to allow for African-American migration to "white" neighborhoods (not to prevent those neighborhoods from becoming overwhelmingly populated by African Americans), and to shift government mechanisms limiting African-American mobility to more subtle legislation. Still, it's worth contemplating how much worse things would have been had the Supreme Court given the green light to laws that in effect would have explicitly frozen African-American rural migrants out of existing urban neighborhoods.

Advertisement

NEXT: Does the 13th Amendment's Ban on Slavery and Involuntary Servitude Give Congress the Power to Ban Hate Crimes?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The problem with this narrative for libertarians is Buchanan failed to work. It wasn’t until Shelley v. Kraemer, a Vinson court decision that libertarians didn’t like, that racially restrictive zoning (now enforced through deed covenants) actually fell, and even now there is plenty of private housing discrimination. You need a strong government in this area.

    1. It depends what you mean by “worked.” It “worked” to stop progressives and racists from using their combined political clout to create formal apartheid in the U.S., which if it had spread would have essentially stopped the migration of African Americans to cities. It didn’t “work” to stop more subtle forms of government housing discrimination that were difficult to challenge legally, nor to stop private housing discrimination, nor to integrate neighborhoods. Shelley v. Kraemer essentially stopped one form of government housing discrimination, which was to enforce restrictive covenants that would never have been enforced in non-racial contexts. Shelley did not stop interstate highways from cutting off “black” neighborhoods, did not stop FHA discrimination, did not stop private housing discrimination, and certainly did not integrate neighborhoods. Seventy years later, there is still a great deal of residential segregation of African Americans, so it’s bit much to criticize Buchanan for somehow changing both public and private preferences in that regard 100 years ago.

      1. I’m also a bit puzzled about Dilan’s throwaway about the case that “libertarians didn’t like.” Shelley was decided in 1948; there was no organized libertarian movement in 1948. Who exactly is he referring to?

        1. Libertarianism existed as an ideology long before it was organized. (Indeed, libertarianism probably resists organization. 🙂 )

          And libertarian ideology doesn’t like expansion of the state action doctrine and doesn’t like enforcement of anti-discrimination laws against private discriminatory contracts. Both of those things were done by Shelley.

    2. One reason Buchanan “failed to work” is because, shortly thereafter, the Supreme Court upheld zoning ordinances in the Euclid decision. As Richard Rothstein demostrated in his book, “strong government” used zoning ordinances, and the rhetoric of “urban planning,” “rational development” and “maintaining property values” to achieve indirectly what Buchanan did not allow it to achieve directly.

      A second reason Buchanan “failed to work” is that the rationale of individual liberty on which it was based was superseded by the modern view that “unelected” judges should defer to the “will of the people” as expressed by their elected representatives. It was under this rationale that “strong government” enacted housing laws, urban renewal, anti-“urban blight,” and highway construction laws were passed that, as Rothstein pointed out, often expressly provided for racial separation. Have you noticed how many older public housing projects have hyphenated names? That’s because the original intent was for whites to live in buildings designated under one side of the hyphen, and blacks to live under the other.

      Indeed, the entire point of Rothstein’s book is that it was “strong government,” not “private housing discrimination,” that led not only to racially stratified communities, but also to the economic disparaity between the races that flowed from racially stratified communities.

      1. The line “government policies that contributed to racial segregation” is a nice understatement.

      2. The idea that unelected judges (though they are appointed and confirmed by elected officials) should defer to the will of the people goes back to the Founding in some fashion & before/after it was used to uphold questionable laws. Buchanan was something of an outlier here in an era where judges generally blithely (see Plessy v. Ferguson et. al.) upheld racist laws and policies.

  2. Agreements to hold the color line are like price fixing agreements, they never hold. In price fixing cases, it is because someone always cheats by looking out for their own self interest ahead of everybody else. Sooner or later, someone will sell or rent to a black person, seeking to maximize their own individual utility. And without violence to bring them back in line, then once the line is broken, there is no fixing it.

    1. The thing is, your last caveat swallows the rule. Apartheid-style systems always contain massive amounts of private violence to keep people in line.

      But even without the caveat, I am not sure you are right. There can be tremendous social pressures in favor of prejudice. Put simply, so long as whites had more money than blacks, the mere threat of white people to refuse to patronize a business en masse was probably very sufficient to deter immigration.

      1. Without state violence, enforcement is always susceptible to more subtle infusion. Someone opens a restaurant astride the color line, and it becomes popular on both sides. Or a dry cleaner just across the line is cheaper and closer, so some people are willing to cross the color line.

        Racists aren’t content with property lines. They want deep isolation, such as a railroad or freeway or river or some other boundary. Absent those, color will diffuse across lines.

    2. Agreements to hold the color line are like price fixing agreements, they never hold.

      Well, they may not last forever, but they can last an awfully long time. There were plenty of restrictive covenants in place, including some that forbade sales to Jews, for twenty years after Shelley. The Fair Housing Act of 1968, whiuch outlawed such discrimination, was opposed by most southern members of Congress, suggesting – accurately – that it was widespread in the south at the time.

      1. There were plenty of restrictive covenants in place, including some that forbade sales to Jews, for twenty years after Shelley.

        I don’t know what you mean by “in place.” If they existed, they didn’t evaporate when Shelly was handed down; they just ceased to have any legal force.

        The Fair Housing Act of 1968, whiuch outlawed such discrimination, was opposed by most southern members of Congress, suggesting – accurately – that it was widespread in the south at the time.

        The Fair Housing Act did not need to outlaw such discrimination, since Shelley had already banned it. The Fair Housing Act did something else; it outlawed purely private discrimination. Shelley ‘outlawed’ the situation in which I want to sell my house to a black person and a third party goes to court to prevent it. The FHA outlawed the situation in which I refuse to sell my house to a black person.

        1. I don’t know what you mean by “in place.” If they existed, they didn’t evaporate when Shelly was handed down; they just ceased to have any legal force.

          Whatever legal force they had, they both existed and were complied with. Social pressures and attitudes matter.

          The Fair Housing Act did not need to outlaw such discrimination, since Shelley had already banned it. The Fair Housing Act did something else; it outlawed purely private discrimination.

          That is what I meant. By “such discrimination” I intended to refer to the private covenants, even though they were legally unenforceable.

      2. And widespread in certain suburbs of DC at the time too.

    3. “Sooner or later, someone will sell or rent to a black person, seeking to maximize their own individual utility.”

      Deed restrictions can be enforced by your neighbors.

  3. Agreements to hold the color line are like price fixing agreements, they never hold. In price fixing cases, it is because someone always cheats by looking out for their own self interest ahead of everybody else. Sooner or later, someone will sell or rent to a black person, seeking to maximize their own individual utility. And without violence to bring them back in line, then once the line is broken, there is no fixing it.

  4. I find it very amusing — and quite instructive — that I live here near Charleston, South Carolina (the location of the start of the Civil War!!!!) and live in the most integrated area that I have ever been (and I have been around!!!!)

    It’s almost like people, without interference from government violence, sort things out.

    Funny that …

    1. Somewhat persuasive, if you keep short enough the interval for, “without interference from government violence.”

      It’s funny, I grew up amid Civil War battlefields, during the 1950s and 1960s, and at the time always thought of the Civil War as long-gone, ancient history. Today, the Civil War seems more recent to me than it did then.

    2. We should all just move to the post-racial paradise that is Charleston. Do you live on Kiawah Island?

  5. Uh, the violence of the Civil War WAS government violence.

    No one ever passed a law — promising violence to violators — forcing what folks already do themselves naturally.

    Segregation is unnatural and abnormal — nature will out.

    Perfect don’t exist.

    1. “Segregation is unnatural and abnormal — nature will out.”

      That’s what we should have told slaves: You just need to wait 50,000 years and nature will sort this out. Can’t wait.

      1. Segregation is NOT slavery — try again.

Please to post comments

Comments are closed.