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The Neglected Case of Buchanan v. Warley

Below, David E. Bernstein, professor at George Mason University School of Law and frequent blogger at the Volokh Conspiracy, writes for our Race and the Supreme Court program.  This post is adapted from a chapter in his book, Rehabilitating Lochner, forthcoming in 2011 from University of Chicago Press.

Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era.  Starting in 1910, many cities in the South, border states, and lower Midwest, responded to a wave of African-American in-migration from rural areas by passing laws mandating residential segregation in housing. More cities were ready to follow suit if the laws survived constitutional challenges.  Several southern state supreme courts upheld the laws against constitutional challenges.  In 1917, however, the Buchanan Court unanimously invalidated a Louisville residential segregation law as a deprivation of liberty and property without due process of law.

Although some scholars have portrayed Buchanan as only vindicating white people’s right to alienate property, the opinion’s text belies that understanding.  The right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.” “Colored persons,” Justice Day wrote for the Court, “are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”

The Court rejected each of Kentucky’s asserted police power rationales for upholding the law. Day dismissed the argument that existing “race hostility” was an appropriate rationale for narrowing the scope of citizens’ constitutional rights.  Justice Day added that the legitimate goal of promoting the public peace could not be accomplished “by laws or ordinances which deny rights created or protected by the Federal Constitution.” Nor could the law be justified as promoting the “maintenance of the purity of the races.”  The Court noted that the law did not even prohibit African Americans from working in white households, showing that the law’s target was not race-mixing, per se.

Finally, the Court spurned the claim that the law was necessary to prevent the depreciation in the value of property owned by white people when African Americans became their neighbors.  Day noted that property owned by “undesirable white neighbors” or “put to disagreeable though lawful uses” could cause similar depreciation.

While Buchanan clearly did not lead to a general rollback of de jure segregation, the decision inhibited state and local governments from passing more pervasive and brutal segregation laws, akin to those enacted in South Africa.  Buchanan also did not lead to integration of residential neighborhoods, but it did impede the efforts of urban whites to prevent African Americans from migrating to white neighborhoods and ultimately replacing the white residents. The African-American urban population in the United States almost doubled between 1910 and 1929, and continued to grow in later years.  Individual cities had far more dramatic growth in their African-American population.  For example, the number of African Americans living in Detroit increased from roughly six thousand in 1910 to approximately one hundred and twenty thousand in 1930.

Whites tried to use restrictive covenants to prevent the in-migration of African Americans, but these covenants generally failed to prevent such in-migration.  In some cities, whites lobbied for segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement.  Not only did cities provide African Americans with more economic opportunity, but the migration of blacks to cities, North and South, was a crucial element in the civil rights movement’s ultimate victory. Among other advantages, it enabled African Americans to increase their political power by moving to areas where they could vote.

Buchanan was also important as a matter of legal doctrine, but it has been unjustly neglected by historians and legal scholars because it doesn’t fit the standard narrative of constitutional development in which equalitarian civil rights jurisprudence is said to have developed entirely apart from, and indeed, in opposition to, liberty of contract and property rights.  Generations of legal scholars and historians have treated Buchanan as a “property rights case” that rested on “laissez-faire” ideology, of little if any relevance to the later civil rights revolution.  Undoubtedly, the fact that Buchanan involved property rights and liberty of contract played an important role in the decision, as it allowed the Court to distinguish Buchanan from Plessy, which involved “mere social rights.”

But focusing myopically on the economic rights element of Buchanan misses the fact that even property rights and liberty of contract were subject to the police power. Plessy had suggested that any “reasonable” segregation law would come within the police power, and the Plessy Court applied a lax–and racism-infused—standard of reasonableness.

In contrast, after noting that property rights are subject to the police power, the Buchanan opinion cited anti-discrimination statutes and court precedents dating back to Reconstruction.  The Court for the first time held that discriminatory animus, even when supported by popular opinion and expert opinion backed by contemporary social science evidence, and justified by fear of miscegenation and racial violence, was not a proper police power justification for laws violating recognized individual rights.  This was hardly a foregone conclusion.

Pre-Buchanan legal commentary universally argued that residential segregation laws were constitutional, and the Buchanan opinion changed few if any minds.  With the exception of a student comment in the Columbia Law Review, all law review commentary was hostile.  A Columbia professor even accused the Court of destroying whites’ right to live in a segregated neighborhood.

Despite this outpouring of criticism, Buchanan marked a favorable turning point in the Court’s attitude toward the rights of African Americans.  According to one tally, the Supreme Court heard twenty-eight cases involving African Americans and the Fourteenth Amendment between 1868 and 1910. Of these, African Americans lost twenty-two. However, between 1920 and 1943, African Americans won twenty-five of twenty-seven Fourteenth Amendment cases before the Supreme Court.

After the Supreme Court confirmed the constitutionality of general residential zoning in 1926 in Euclid v. Ambler Realty, various southern and border-state jurisdictions once again passed residential segregation ordinances, hoping that Euclid signaled a more sympathetic Court attitude to all types of regulation of property.  The Court, however, summarily invalidated these laws in 1927 and 1930.  If the NAACP had had the resources and inclination to pursue the matter, Buchanan could have been used to broader effect to combat de jure segregation in the private sector.

Arguably, Buchanan also shows the potential for a racially egalitarian jurisprudence to have emerged in a political environment far closer to America’s libertarian tradition than what had emerged by the 1950s, when the Supreme Court began to protect the rights of African Americans in earnest.  Indeed, Buchanan, by rejecting the standard police power arguments used to justify segregation, had the potential to be used as a weapon in school desegregation litigation.  This required only that the Court shift its view from segregation in public education as involving a “social right” not implicating the Equal Protection or Due Process Clause, to it infringing an important liberty or property right.  And, in fact, the Court issued a Buchanan-like due process opinion in 1954 in Bolling v. Sharpe, invalidating racial segregation in District of Columbia public schools.  But that is the subject for another blog post.