The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.