Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective
David E. Bernstein*
I. Introduction....................................................................... 798
II. Traditional Jurisprudence vs. Sociological
Jurisprudence....................................................................... 804
A. Traditional Jurisprudence and Laissez-faire
Jurisprudence............................................................. 804
B. The Rise of Sociological Jurisprudence...................... 811
III. Race, the Supreme Court, and the Police Power
Before Buchanan.................................................................. 821
A. Plessy v. Ferguson: The Sociological
Jurisprudence of Race................................................ 821
B. Berea College v. Kentucky: Lochner vs. Plessy............ 829
IV. Residential Segregation Laws........................................... 834
V. Buchanan v. Warley............................................................... 839
A. The Plaintiff’s Briefs................................................... 842
B. Kentucky’s Brief......................................................... 844
C. The Briefs on Reargument.......................................... 845
1. The Storey and Blakely Brief............................ 846
2. Kentucky’s Brief.............................................. 847
D. The Supreme Court Opinion....................................... 850
E. The Reaction to Buchanan........................................... 856
VI. The Practical Significance of Buchanan........................... 858
A. Effects on Housing Opportunities for
African-Americans...................................................... 859
1. Facially-Neutral Zoning Laws........................... 862
2. Restrictive Covenants....................................... 864
B. Effects on Other Segregation Laws............................ 867
1. The Failure to Use Buchanan
to Invalidate Segregation................................... 867
2. The Road Not Taken........................................ 869
C. Effects on Civil Rights More Generally...................... 871
VII. Conclusion: Lessons from Buchanan................................. 872
In Buchanan v. Warley the Supreme Court found that a Louisville, Kentucky, residential segregation ordinance was unconstitutional because it interfered with the Fourteenth Amendment right to own and dispose of property and could not be justified as a police power measure.[1] The Buchanan decision came at a crucial juncture in the history of American race relations. Several cities in the southern and border states had recently passed residential segregation ordinances, and other cities were poised to follow suit if the Supreme Court ruled that such ordinances were constitutional.[2] Several northern cities were considering adopting residential segregation laws as well,[3] and there was considerable agitation in the rural South for de jure segregation.[4]
The spread of residential segregation laws reflected the antipathy the average white American felt toward African-Americans.[5] Most whites, including most white intellectuals, believed that African-Americans were culturally and biologically inferior.[6]
Progressive political and intellectual leaders generally shared the racism of the day,[7] and Progressive social scientists promoted pseudo-scientific theories of race differences.[8] Not surprisingly, the idea of coerced segregation resonated with Progressive reformers, who, consistent with their statist outlook,[9] believed in “public control” of the housing market. Some Progressives insisted that capitalism forced unwilling races to live together.[10] Others justified segregation laws as furthering the “public interest” by preventing miscegenation between “superior” whites and “inferior” African-Americans.[11] Progressives argued that segregation laws promoted public safety, protected property values, and helped maintain the public order.[12]
National political leaders supported segregation laws as well.[13] Despite protests from the NAACP and others, the Wilson Administration implemented segregation in the federal workforce for the first time since the Civil War.[14] The Wilson Administration was, in fact, consistently hostile to African-Americans,[15] and Congress was only marginally better.[16] For the first time since the Civil War, Congressmen seriously proposed a range of discriminatory bills, and some of those nearly passed.[17]
The judicial branch of government, meanwhile, hardly seemed to offer civil rights activists shelter from the rising tide of racism. The Supreme Court’s record on segregation issues was abysmal; it had upheld several race segregation statutes over the past few decades.[18] The precedent most obviously relevant to Buchanan, Plessy v. Ferguson, held that segregation was a valid police power function, and was infused with pseudo-scientific racist theories.[19]
To make matters worse, by the time Buchanan reached the Supreme Court, Progressives had launched a vigorous intellectual attack on the judiciary’s role in restraining government. Under the banner of supporting “sociological jurisprudence,” Progressive legal theorists sought to discourage courts from interfering with regulatory legislation. By the 1910s, Progressives so dominated mainstream legal thought that Charles Warren remarked that “any court which recognizes wide and liberal bounds to the State police power is to be deemed in touch with the temper of the times.”[20]
The rise of Progressive sentiment within the legal world seemed to bode particularly ill for challenges to racial zoning. In 1915, the Supreme Court, in one of its occasional bursts of Progressive sentiment, stated with regard to a general zoning ordinance that “[t]here must be progress, and if in its march private interests are in the way they must yield to the good of the community.”[21] Law review authors writing before Buchanan, influenced by the racism of the time and the statism and populism of sociological jurisprudence, unanimously agreed that residential segregation ordinances were constitutional.[22]
Despite the foreboding intellectual climate, the NAACP had no choice but to carry its fight against residential segregation laws to the Supreme Court. To do anything less would have allowed the laws to become entrenched without challenge. Fortunately, the Supreme Court refused to assimilate contemporary racism and jurisprudential theories into its decision in Buchanan. Rather, the Court assumed the role assigned to it by traditional jurisprudence and protected individual constitutional rights from the broad-based popular and intellectual movement supporting residential segregation ordinances.[23]
With this background in mind, Part II of this Article discusses the opposing philosophies of traditional jurisprudence and sociological jurisprudence. This Part argues that by the time the Supreme Court decided Lochner v. New York in 1905,[24] traditional jurisprudence had become associated with at least a mild form of laissez-faire jurisprudence. Of the Supreme Court Justices, only Justice Holmes opposed traditional jurisprudence and favored sociological jurisprudence.
Part III of this Article contends that the Court had previously implicitly adopted the principles of sociological jurisprudence in the context of race in Plessy v. Ferguson.[25] The conflict between Plessyism and Lochnerism, and thus between sociological and traditional jurisprudence, came before the Supreme Court in Berea College v. Kentucky.[26] Instead of resolving the conflict, the Court conspicuously evaded the issue.
Part IV discusses the spread of residential segregation laws in the South and border states during the 1910s, and the support these laws found in contemporary law reviews.
This Article next focuses on Buchanan v. Warley, a case in which the plaintiffs argued that residential segregation laws violated the Equal Protection Clause of the Fourteenth Amendment and also denied, without due process of law, the right to buy and sell property.[27] The State of Kentucky responded with briefs that relied on sociological jurisprudence and blatant appeals to racism. Ultimately, the Court held that the Louisville statute violated the rights to acquire, use, and dispose of property.[28] The Court rejected Kentucky’s contention that the various public policy rationales the State advanced in support of segregation laws justified these laws as valid uses of the police power.[29] Civil rights advocates were predictably pleased with the decision, while law review commentators expressed disappointment and anger at the Court’s “unscientific” opinion.
Part V of this Article discusses the practical significance of Buchanan. First, the Article concludes that Buchanan had little effect on segregation, but that it did ensure that whites bore far more of the burden of their discriminatory attitudes than they would have if Buchanan had been decided in Kentucky’s favor. Second, Buchanan prevented state governments from passing harsher anti-black measures than the one at issue in Buchanan. Finally, the Court’s decision in Buchanan spurred the growth of the NAACP and signaled a turning point in the Supreme Court’s jurisprudence on racial issues.
This Article concludes by drawing several lessons from Buchanan. First, legal scholars have underestimated the contribution of Lochner-era cases to the development of civil rights and civil liberties jurisprudence and have overestimated the novelty of the protection of individual rights announced in Footnote Four of Carolene Products.[30] Next, the history of Buchanan should give pause to those who advocate a return to the aggressive statism of the Progressive Era. The final lesson from Buchanan is that the vestigial influence of sociological jurisprudence on constitutional theory should be expunged.
In the late nineteenth century, two schools of constitutional jurisprudence began to emerge. The first school can be described as “traditional,” although that term does not capture the relevant nuances. This school believed that the Constitution had a fixed meaning and that the judiciary’s role was to serve as an elitist institution that limits popularly controlled legislatures from exceeding constitutional boundaries.[31]
The competing school of constitutional thought was the progenitor of sociological jurisprudence, which ultimately absorbed Progressive statism. This school believed that social science and public mores should be weighed heavily in constitutional adjudication and ultimately advocated extreme judicial deference to legislative enactments.[32]
Members of the traditional school believed that it was the role of the judiciary to enforce the limitations on governmental power intended by the Constitution’s Framers and ratifiers.[33] Justice David Brewer, an eloquent proponent of traditional constitutional theory, argued that it is better “to suffer the injuries which come from [the Supreme Court’s] occasional mistakes than the marvelous wrong which would flow from the attempt to settle all questions of right and wrong, of power or the lack of power, by mere numbers of the accumulation of majorities.”[34]
Traditional constitutional theorists believed that it was manifestly not the privilege of the judiciary to ignore constitutional mandates even when circumstances seemed to so dictate.[35] Justice George Sutherland, one of the traditional school’s last representatives to sit on the Supreme Court, wrote that “[a] provision of the Constitution . . . does not mean one thing at one time and an entirely different thing at another time.”[36] Traditionalists specifically rejected the notion that public opinion should affect constitutional jurisprudence.[37] As Justice Sutherland put it, “[t]he elucidation of [constitutional] question[s] cannot be aided by counting heads.”[38]
The very purpose of the Constitution, according to traditional theory, was to prevent short-lived enthusiasms from encroaching on American liberty.[39] Treatise writer Thomas Cooley wrote that bills of rights are necessary to guard against “the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments.”[40] Justice Brewer, meanwhile, argued that “[c]onstitutions . . . represent the deliberate judgment of the people as to the provisions and restraints which, firmly and fully enforced, will secure to each citizen the greatest liberty and utmost protection. They are rules proscribed by Philip sober to control Philip drunk.”[41]
While traditionalists may have agreed that courts must enforce constitutional limitations on government power, they did not necessarily agree on the scope of those limitations. The vague Fourteenth Amendment, which does not describe what is meant by “privileges or immunities,” “equal protection,” or “due process,” was particularly problematic. Many judges informed their readings of these provisions by invoking longstanding American intellectual traditions that heavily influenced American thought in the nineteenth century: the natural rights ideology, including the “free labor” tradition of the abolitionists;[42] and the traditional opposition to “class legislation” that benefited politically powerful interest groups at the expense of the general public.[43]
Incorporating these traditions into the Fourteenth Amendment after the Civil War would have required substantial new limitations on the states’ police power, and the Supreme Court initially refused to enforce such limitations. In the 1873 Slaughter-House Cases, a one-vote majority of the Supreme Court adopted a narrow reading of the Fourteenth Amendment and upheld an apparently monopolistic state statute.[44] The dissenters invoked the natural rights and anti-class legislation traditions to no avail.[45]
During the Fuller years, the Supreme Court was relatively vigilant in preventing state interference with interstate commerce,[46] but remained reluctant to rely on the Fourteenth Amendment to invalidate this state legislation.[47] By the late nineteenth century, however, state courts invalidated economic legislation on class legislation and natural rights grounds with some regularity.[48]
In 1905, in Lochner v. New York, the Supreme Court finally adopted a moderate laissez-faire jurisprudence under the Fourteenth Amendment.[49] The Court ruled that a maximum hours law for bakers exceeded the states’ police power and violated the right of liberty of contract protected under the Fourteenth Amendment’s Due Process Clause.[50]
Justice Peckham wrote for the majority that if the Court upheld the regulation of bakers’ hours, “it is not possible to say that an act, prohibiting lawyers’ or bank clerks, or others, from contracting to labor for their employers more than eight hours a day, would be invalid.”[51] If the New York law could be sustained, added Peckham, all workers would be “at the mercy of legislative majorities.”[52] Peckham added that, “it is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives.”[53] The court decided that because the law at issue in Lochner was not passed to protect the public health, or even the health of bakers, it was therefore a form of unconstitutional class legislation.[54]
Progressives such as Roscoe Pound, Ernst Freund, Learned Hand, and others accused the Lochner majority of engaging in “mechanical jurisprudence”[55] or abstract reasoning, instead of relying on modern scientific knowledge about the health effects of long hours on bakers.[56] In fact, however, the Lochner majority had some scientific evidence in its favor. The brief for Joseph Lochner contained in its appendix what Professor Stephen Siegel has called an “incipient ‘Brandeis brief’ compilation of medical, scientific, and statistical data,”[57] demonstrating that baking was not an especially unhealthful profession.[58]
Justice Harlan’s dissent, joined by two other Justices, agreed that class legislation was unconstitutional but argued that the Court should have given more deference to the New York legislature’s finding that the law was a public-spirited health measure.[59] Harlan cited several studies that supported this interpretation of the hours law.[60]
With the exception of Justice Holmes, who wrote a separate dissent, all of the Lochner Justices shared the traditional view that the judiciary must scrutinize legislation, including “Progressive” labor legislation, to ensure that it met constitutional norms.[61] Traditional jurisprudence thus became associated with support for at least the mild version of laissez-faire jurisprudence consistently favored by Harlan.[62]
Concomitantly with the rise of traditionalistic laissez-faire jurisprudence, jurisprudential theories that challenged the bases of traditional jurisprudence emerged as an intellectual force in constitutional law.[63] These theories eventually coalesced into what became known as sociological jurisprudence.[64] Sociological jurisprudence holds that the purpose of law is to achieve social aims, and that legal rules, including constitutional rules, cannot be deduced from first principles.[65] Accordingly, sociological jurisprudes believed abstract notions of rights should not bind judges.[66]
Sociological jurisprudes also believed that judges should not strictly rely on traditional analytical tools such as analysis of the Framers’ intent, natural rights, or precedent when deciding constitutional cases with social import.[67] Instead, judges should consider the public interest and modern social conditions or “social facts” when interpreting the Constitution.[68] Advocates of sociological jurisprudence also argued that the rule of law itself would sometimes need to be sacrificed to extralegal concerns.[69]
One advocate of sociological jurisprudence defined it as “a square recognition by the courts that the constitutionality of social and economic legislation depended in the last analysis upon the actual existence or nonexistence of social or economic conditions justifying such legislation.”[70] Traditionalists mocked this approach. Faced with an extensive “Brandeis Brief” supporting the constitutionality of minimum wage laws for women, Supreme Court Chief Justice Edward D. White remarked, “ ‘[w]hy, I could compile a brief twice as thick to prove that the legal profession ought to be abolished.’ ”[71]
In stark contrast to traditional theories that relied on immutable principles such as natural rights, sociological jurisprudence depended on the theory that law was tied to the evolving nature of society because society determined people’s rights.[72] Sociological jurisprudes believed that courts should consider public opinion when interpreting the Constitution because such opinion represented the evolving social mores of the community.[73] Justice Holmes, for example, wrote that the police power “may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”[74]
While sociological jurisprudence ultimately came to be associated with legal Progressivism, its underlying rationale did not inherently require judicial deference to the legislature. Christopher G. Tiedeman, considered the most pro-laissez-faire of all nineteenth-century constitutional treatise writers, shared many intellectual influences and philosophical positions with the proponents of sociological jurisprudence.[75] Perhaps most surprisingly, Tiedeman eschewed the notion that the Constituiton had a fixed meaning. Instead, he shared the sociological view that constitutional law could and should evolve by judicial decisionmaking based on public opinion.[76] Nevertheless, Tiedeman vigorously argued that the Fourteenth Amendment required courts to invalidate all manner of class legislation, from labor legislation favoring trade unions to anti-miscegenation laws.[77]
Tiedeman’s pro-laissez-faire views were perfectly consistent with the methodology of sociological jurisprudence. He examined social conditions and public opinion and determined that enforcement of laissez-faire and the sic utero principle[78] would be in the public interest. Tiedeman sought to encourage courts to invalidate “class legislation” so that special interests would not use the political process to benefit themselves at the expense of the general public.[79] In the long-run, as the American political center shifted from the laissez-faire outlook of the two Cleveland administrations to the aggressive statism of Progressives Theodore Roosevelt and Woodrow Wilson, the statist version of sociological jurisprudence emerged dominant.[80]
The influence of the Progressive movement solidified the statist bent of the emerging sociological school of jurisprudence among legal scholars.[81] Progressivism emphasized collective action through government action,[82] and promoted the belief that efficient social engineering could lead to societal improvement.[83]
By the turn of the century, Progressivism dominated American intellectual and political life.[84] Maximum hours laws, regulation of public utilities, pro-union legislation, and residential segregation laws were among the plethora of purportedly public-spirited legislation championed by mainstream Progressives. In the South, the racist and segregationist agenda was a crucial element of Progressivism.[85]
In the legal world, Progressive social thought combined with the emerging sociological school to form a powerful school of constitutional jurisprudence that challenged the foundations of traditional jurisprudence. Legal Progressives were sometimes overtly hostile to the Constitution because they believed that it represented the dead hand of the distant past. They argued that the Constitution should be amended, or, if that were not possible, ignored.[86] Other legal Progressives argued that legislatures, rather than courts, were in the best position to balance constitutional rights against the needs of the community. Legislatures, they argued, could fully take into account “social facts,” whereas courts did not have the proper resources to do so, or, if they did, they were not so inclined.[87]
Either way, legal Progressives were inclined to argue in favor of judicial deference to the legislature. They argued that traditional notions of natural rights and opposition to class legislation should not bind the states’ police power. Rather, they contended, the scope of the police power should change with the perceived needs of society. Modern, industrialized society necessitated increased government regulation, and the police power, therefore, needed to be expanded to accommodate this need.[88] As Progressives came to dominate sociological jurisprudence, they expunged the influence of those who, like Tiedeman, believed that courts should strictly enforce constitutional limitations on government power.[89] Ultimately, Progressive sociological jurisprudence, while purporting to be scientific, in effect stood for statism in the form of judicial acquiescence to the whims of the legislature.
Justice Holmes’s radical dissent in Lochner exemplifies the statism of sociological jurisprudence. In contrast to the traditional view that the Constitution was intended to limit government,[90] Holmes argued that “a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.”[91] Holmes, in contrast to his eight Supreme Court colleagues, simply did not believe that liberty of contract was a constitutionally protected value.[92] The Fourteenth Amendment, Holmes famously wrote, “does not enact Mr. Herbert Spencer’s Social Statics.”[93]
Holmes also eschewed traditional principles of American jurisprudence by consciously refusing to consider the issue of whether the statute at issue in Lochner was class legislation. Holmes acknowledged that if the law was justified as an appropriate first step toward regulating the hours of all workers, it may “be open to the charge of inequality.”[94] Nevertheless, he thought it “unnecessary to discuss” this issue.[95]
Holmes’s opinion became a statist shrine for Progressive legal theorists. Roscoe Pound glorified Holmes’s opinion as the best exposition of sociological jurisprudence he had seen.[96] Pound and other Progressives reserved their praise for Holmes and largely ignored Harlan’s dissent, even though Harlan’s dissent was far more “scientific,” than Holmes’s. What Pound chose to celebrate was not a truly sociological opinion that grappled with the question of whether the maximum hours law in question was an appropriate health measure rather than class legislation, but a statist opinion which ignored constitutional protections entirely in favor of extreme deference to the legislature.
Meanwhile, Pound vigorously attacked the anti-statism of the majority opinion in Lochner. Not only did the Court misinterpret the relevant facts, according to Pound,[97] but it had a warped conception of liberty. Pound had the intellectual’s contempt for the ability of the layman to pursue his own ends appropriately. Freedom of contract in the hands of “weak and necessitous” bakers, wrote Pound, “defeats the very end of liberty.”[98]
Traditionalists, by contrast, criticized Holmes’s opinion. One author wrote that if Holmes’s views were to prevail, “constitutional government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.”[99]
Most Justices on the Supreme Court apparently agreed. Despite Holmes’s Lochner dissent, the incipient rise of Progressivism, and the publication of a major treatise on the police power adopting the sociological view,[100] the Supreme Court mostly adhered to traditional constitutional jurisprudence and generally ignored the emerging sociological school and its emphasis on deference to the legislature. Only Holmes continued to insist that the Constitution was sufficiently malleable that the Court could and should almost always defer to the policy judgments of the legislature.[101]
After Lochner, opponents of segregation hoped that Jim Crow laws, at least as applied to the private sector, could be successfully challenged on liberty of contract grounds.[102] Civil rights advocates hoped that the traditionalism and anti-statism of Lochner would counteract the statism and the sociological reliance on racism of Plessy v. Ferguson.[103]
Plessy involved a Louisiana statute that required railroads to enforce racial segregation.[104] When the Plessy segregation ordinance was passed, segregation, by law or custom, was common throughout the South.[105] On the other hand, segregation was far from universal,[106] and it was under pressure from increased black assertiveness, urbanization, and the anti-caste influence of the market economy.[107]
By the 1890s, there was growing African-American resistance to de facto segregation. The common law required either integration or separate but equal accommodations, and African-Americans became increasingly aggressive about enforcing their rights in the courts.[108] Streetcar companies, train companies, and other enterprises sometimes found it more profitable to have integration than to maintain separate but equal accommodations.[109] Streetcar systems, therefore, were often integrated, as were some trains.[110]
In an attempt to win support from their white constituents, politicians began to propose laws requiring separate public accommodations.[111] The Louisiana segregation law at issue in Plessy was one of the first fruits of this flurry of legislative activity. The American Citizens’ Equal Rights Association of Louisiana vigorously opposed the segregation statute while it was pending.[112] The Association denounced the bill as “class legislation.”[113] When it became law anyway, the Association set out to challenge its constitutionality. With the cooperation of the local train company, which also opposed the statute, the Association arranged Homer Plessy’s arrest for violating the law to create a test case.[114]
The Plessy majority argued that the Louisiana statute did not violate Plessy’s rights under the Equal Protection Clause.[115] The Court reasoned that segregation, while creating a distinction between the races, was not discriminatory.[116] The statute restricted whites to the same degree as African-Americans; African-Americans could not choose to sit with whites, and whites could not choose to sit with African-Americans. If African-Americans believed this arrangement to be subordinating, that was no concern of the Court.[117]
Plessy’s counsel, Albion Tourgée, apparently anticipated that the Court might find that “mere” segregation did not violate African-American rights. Tourgée therefore seized upon Plessy’s legal status as a “Negro” with mostly Caucasian ancestry, and argued that the statute violated Plessy’s property right in his reputation as a white man.[118] The Court rejected this argument. The Court reasoned that if Plessy was in fact white, and was assigned to the “colored coach,” he would have a cause of action against the company. If, on the other hand, he was “a colored man,” there was no property deprivation “since he [was] not lawfully entitled to the reputation of being a white man.”[119]
The holding that mere segregation did not create a cause of action under the Fourteenth Amendment is unremarkable. The Court’s distinction between social rights, which were not protected by the Fourteenth Amendment, and civil rights, which were protected, was arguably consistent with the intent of the Framers of the Fourteenth Amendment.[120] Moreover, given the Court’s general reluctance to overturn state legislation under the Fourteenth Amendment at this time, it would have been surprising, though hardly illogical, if the Court had followed dissenting Justice Harlan’s lead and found that railroad segregation laws inherently amounted to illicit class legislation.[121]
The Court, however, also gratuituously implied that segregation laws were always constitutional if reasonable[122] and seemingly endorsed such laws on policy grounds. Even if segregation laws did go beyond “mere” legal distinction and violated the rights of African-Americans, the Court found they were well within the police power.[123] In reaching this conclusion, the Court relied less on traditional legal analysis and more on its perception of social reality. The Court had apparently assimilated the contemporary social science notion that blacks and whites, as members of distinct races, were instinctively hostile to one another.[124] Justice Henry Billings Brown wrote for the majority: “Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.”[125]
The Court also argued, contrary to traditional theory, that courts should consult public opinion and public mores when determining the constitutionality of legislation. “In determining the question of reasonableness,” Justice Brown wrote, “[the legislature] is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”[126] The Court contended, no doubt correctly, that white public opinion was hostile to integration. Justice Brown stated that the plaintiff’s argument assumed “that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races.”[127] Focusing again on public opinion, the Court found that laws enacted contrary to public opinion could not achieve or promote “social equality.”[128]
One can easily forget when reading Justice Brown’s opinion in Plessy that the plaintiff was not asking for state-“enforced commingling of the races,” but for a ban on government compelled segregation.[129] Apparently, Louisiana whites were not sufficiently hostile to mingling with African-Americans to engage in voluntary non-statist collective action to persuade train companies to voluntarily enforce segregation.[130] If whites, for example, had boycotted integrated trains, or demonstrated a willingness to pay higher prices for tickets in whites-only cars, train companies would likely have enforced segregation because the losses from integration would have been greater than the expenses of enforcing segregation.[131]
Faced with the problem that most whites favored segregation, but not strongly enough to overcome market pressures that sometimes led to integration, the Court chose to ignore the distinction between state action and private action.[132] The Plessy Court implicitly reasoned that allowing train companies to maintain integrated trains by failing to require segregation, would be the equivalent of legislation forcing whites and blacks to commingle.[133] By requiring segregation, Louisiana simply restored the natural social order in defiance of the unnatural interference of the free market and the profit motive.[134]
Given its reliance on social science and public opinion and its disavowal of the state action distinction, the majority opinion in Plessy is at least in part an example of sociological jurisprudence run amok, of drunk Philip getting his way.[135] In contrast, Justice Harlan’s famous dissent relied on traditional jurisprudential reasoning.[136] Harlan argued that public opinion and public policy considerations should not affect the constitutionality of legislation;[137] and, once one ignored public policy considerations, the segregation statute was clearly invalid as a gross example of illicit class legislation.[138]
Harlan was on particularly firm ground in arguing that the majority opinion endorsed class legislation because that opinion was based entirely on an endorsement of separation with no concern for equality. Although the statute at issue required equal accommodations for each race, the majority opinion never mentioned this requirement, and it appears to have played little role in the majority’s reasoning.[139]
Thus, contrary to the opinions of some commentators,[140] Plessy did not represent traditional jurisprudence of the type that carried the day in Lochner, particularly when the Court discussed why segregation statutes come within the police power.[141] Instead, the opinion’s reliance on social science and public opinion was an example of an early triumph of the emerging sociological school of jurisprudence.[142] In fact, Lochner served as the springboard for the next major challenge to a segregation ordinance.
In 1904, Kentucky State Representative Carl Day introduced a bill into the legislature that prohibited African-American and white students from attending the same school, public or private.[143] The bill was clearly aimed at Berea College, a small, private, racially integrated school[144] and the only institution of higher learning in Kentucky that accepted blacks other than the all-black Kentucky State Industrial College.[145]
Day’s bill was a politically entrepreneurial venture; few if any of his constituents had any contact with distant Berea College.[146] The bill was nevertheless a politically savvy ploy, as opposition to racial equality had become a popular political platform throughout the South.[147] Dominant white opinion opposing integration was reflected in the Louisville Courier-Journal, which complained that at Berea “white and colored girls and boys associate together in class-rooms, dining halls, in dormitories and on playgrounds, as well as in social entertainment.”[148] Day may have decided to capitalize on the growing Southern opposition to racial integration by introducing the bill after President Theodore Roosevelt shocked and appalled Southern whites by dining with Booker T. Washington at the White House.[149]
The Day bill was unstoppable in the election year of 1904. The New York Evening Post stated that “any man who voted in opposition would have the ‘n----r question’ brought up against him in all his future career.”[150] Even legislators personally opposed to the law felt obligated by political considerations to vote for it.[151] Some legislators expressed concern that the law violated Berea’s property rights, but political expediency overcame that concern.[152]
Berea College first challenged the law unsuccessfully in the Circuit Court of Madison County.[153] On appeal, the Kentucky Court of Appeals upheld the law as a valid police power measure.[154] The court reasoned that the law was a valid exercise of the state’s well established power to prohibit miscegenation. Even a prejudicial motivation would not make a law invalid because prejudice was deemed “nature’s guard to prevent the amalgamation of the races.”[155] The court also argued that the law was valid because it would prevent the violence that integration of the races would inevitably produce.[156]
The Kentucky court added that the rights of private property and private association could not overcome the state’s right to exercise its police power to enforce segregation. True to the Progressive spirit of the times, the court gave short shrift to autonomy claims by private institutions against the force of the state.[157]
Despite the incredibly poor racial climate,[158] the college decided to take its case to the Supreme Court. In its brief, Berea focused on the College’s right and the right of its employees to be free from unreasonable interference by the state in pursuing their business and occupations.[159] Berea noted that the Supreme Court recognized such a right in Lochner and other cases.[160] Specifically, Berea argued that “a private school stands upon exactly the same footing as any other private business [and that the] statute is . . . an arbitrary interference with the rights of the people in the conduct of their private business and in the pursuit of their ordinary occupations.”[161]
The college then turned to the argument that the statute constituted illicit class legislation. Berea claimed that “[t]he Constitution makes no distinction between the different races or different classes of the people” and that any such distinction “must be done by the legislature in the exercise of the police power.”[162] Although Berea acknowledged that certain segregation laws had been held to be within the police power, the college distinguished Plessy and other segregation cases on the ground that the laws in question in those cases had the purpose of preventing whites from involuntarily associating with African-Americans in trains and other places of public accommodation.[163] No whites, however, needed to come in contact with African-Americans at Berea College, since white students could easily attend another college that was not integrated.[164] Once the Court recognized that any association between whites and African-Americans at Berea College was voluntary, the statute could not be justified under the police power.[165]
Overall, Berea’s brief is an excellent example of legal argument relying on traditional jurisprudential notions. By contrast, Kentucky’s brief manifested the statist influence of Progressivism and sociological jurisprudence: “The welfare of the State and community is paramount to any right or privilege of the individual citizen. The rights of the citizen are guaranteed, subject to the welfare of the State.”[166]
Kentucky spent significant effort attempting to persuade the Court to take judicial notice that African-Americans are mentally inferior to whites. “This is not the result of education,” Kentucky argued, “but is innate and God-given; and therein lies the supremacy of the Anglo-Saxon-Caucasian race.”[167] To uphold liberty of contract in the context of education, the state suggested, would be to ignore obvious social facts.[168]
The Court was faced with a stark choice between the principles of Lochner and the principles of Plessy, and, more broadly, between traditional jurisprudence and sociological jurisprudence. In the end, the Court chose to evade the dilemma by upholding the Day law on the narrowest possible grounds.[169] It sidestepped the contradictions between forced segregation and freedom of contract by ruling that because Berea College was established under state charter, the state could regulate it in any way it chose as long as it did not violate the original wording of the charter—“the education of all persons who may attend.”[170] Justice Brewer, writing for the Court, pointed out that the college could still educate all persons if African-Americans and whites were separated.[171]
Justice Harlan, joined by Justice Day, dissented. Harlan argued that the statute violated the college’s and its employees’ rights to freedom of contract and occupational liberty. He wrote:
The right to impart instruction . . . . is, beyond question, part of one’s liberty as guaranteed against hostile state action by the Constitution of the United States. This court has more than once said that the liberty guaranteed by the Fourteenth Amendment embraces “the right of the citizen to be free in the enjoyment of all his faculties,” and “to be free to use them in all lawful ways.”[172]
Unlike Justices Harlan and Day, the legal academy applauded the decision.[173] The law review commentary on Berea College reflected the strong influences racism and Progressivism exerted on the legal academy by this time. Several authors praised the Court for allowing states the authority to prohibit integration and avoid its perceived negative consequences.[174] Commentators also praised the Court for affirming that states had broad regulatory authority. Law Notes, for example, applauded the Berea College Court for reigning in “corporate aggression.”[175]
Fortunately for opponents of segregation, the opinion in Berea College was not a complete disaster. It did not endorse the racism of the Kentucky Supreme Court’s opinion or that of Plessy. Nor did the Court hold that under Plessy the Day law came within the police power. Moreover, although the opinion upheld the segregation ordinance at issue, the holding only applied to regulations aimed at corporations. The Court hinted that the segregation law would have been unconstitutional as beyond the police power had it been applied to an individual or to an unincorporated business.[176] The narrowness of the Court’s holding perhaps explains why Justice Holmes, always eager to expand the scope of the police power, concurred in the judgment without opinion rather than joining Justice Brewer’s opinion.[177]
Brewer’s opinion, while disheartening to civil rights advocates, practically invited legal attacks on state enforcement of segregation laws against private parties.[178] Such attacks soon arose against residential segregation laws.
By the 1910s, tens of thousands of African-Americans were migrating from rural areas to southern cities.[179] Many of these African-Americans took up residence in or near areas which were primarily occupied by whites.[180] Whites, meanwhile, feared their property values would decline if African-Americans moved into their neighborhoods, or worse, onto their streets.[181] In some cities, whites used violence to keep African-Americans out of their neighborhoods.[182] However, “white terrorism” could not defeat the combined purchasing power of blacks in their pursuit of housing.[183] Whites, therefore turned to the government for assistance. Politicians, in turn, recognized that residential segregation ordinances would be popular with their constituents.[184]
In 1910, Baltimore promulgated the first ordinance requiring African-Americans and whites to live in separate areas. According to a contemporary article by W.E.B. DuBois, successful Baltimore African-Americans had been moving out of the back alleys of the city and on to major streets.[185] When African-Americans began to buy homes on McCulloh Street, the white residents of that street “rose in indignation” and demanded that the City Council pass an ordinance prohibiting African-Americans from “ ‘invading’ ” white neighborhoods.[186] Mayor J. Barry Mahool, a leading member of the “social justice” wing of the Progressive movement, strongly supported the ordinance.[187]
In December, the City Solicitor issued an opinion that the ordinance was within the state’s police power and therefore constitutional. The Solicitor relied on Progressive arguments in favor of racial zoning. He stated that
because of irrefutable facts, well-known conditions, inherent personal characteristics and ineradicable traits of character perculiar [sic] to the races, close association on a footing of absolute equality is utterly impossible between them, where negroes exist in large numbers in a white community, and invariably leads to irritation, friction, disorder and strife.[188]
Segregation was constitutional because “the failure to separate the[m] injuriously affects the good order and welfare of the community.”[189]
The Baltimore ordinance was imitated throughout the South. Between 1911 and 1913, Richmond, Norfolk, Ashland, Roanoke, and Portsmouth, Virginia, Winston-Salem, North Carolina, Greenville, South Carolina, and Atlanta, Georgia, all passed residential segregation ordinances.[190] These ordinances either: (1) prohibited whites from moving to all-Negro blocks and Negroes from moving to all-white blocks; (2) divided the city into segregated districts and designated a district for each race; or (3) restricted new residences in mixed blocks to the racial group which had established most of the residences on the block.[191]
When challenged in state courts, residential segregation laws met with some initial resistance, but on very narrow grounds.[192] The laws, meanwhile, continued to spread. By 1916, Louisville, St. Louis, Oklahoma City, and New Orleans all had residential segregation laws.[193] These ordinances were extremely popular among whites; St. Louis’s ordinance, for example, passed in a referendum by a margin of approximately three to one.[194]
Legal commentators were nearly unanimous in their belief that such laws were constitutional,[195] just as they had unanimously supported the constitutionality of the statute at issue in Berea.[196] The first and most detailed consideration of the constitutionality of residential segregation ordinances appeared in the Columbia Law Review in 1911.[197] The author, Warren B. Hunting, cited Gilbert Stephenson,[198] an expert in American race law, in distinguishing between a legal “distinction” and a “discrimination.” “A race distinction connotes a difference and nothing more,” Stephenson wrote.[199] Whereas “a discrimination necessarily implies partiality and favoritism.”[200] According to Hunting, segregation statutes were a distinction, not a discrimination, if they restricted both races equally.[201] Because the Baltimore ordinance restricted both whites and African-Americans from moving to blocks where the other race predominated, there was no discrimination.[202] Although white blocks may be generally more desirable places to live than negro blocks, “[t]here is nothing to prevent the improvements in the negro sections from being made the finest in the city.”[203]
Hunting acknowledged that exercises of the police power, including segregation laws, had to be reasonable and could not be enacted for the oppression of a particular class.[204] Hunting concluded that given the Plessy precedent, Baltimore’s ordinance could hardly be said to be unreasonable as a matter of law.[205] Moreover, while the right to live where one wanted could be deemed fundamental, under the Baltimore ordinance “neither the whites’ nor the negroes’ right to live where they [wanted was] curtailed any more than [was] absolutely necessary to secure the desired separation.”[206]
Other authors also rejected the idea that residential segregation laws were illicit, discriminatory class legislation. An Ohio Law Reporter author observed that the laws applied equally to whites and blacks. “Could anything [have been] fairer, or more impartial, in its operation than this?,” he asked rhetorically.[207] An article in the Virginia Law Review stated that segregation ordinances were both reasonable and nondiscriminatory, because “[t]he liberty of both races were restricted to the same extent.”[208] A note in the University of Pennsylvania Law Review rejected the argument that the Louisville ordinance violated the Constitution because it restricted blacks to the less-desirable sections of the city. After all, stated the author, “they could render those portions more desirable through their own efforts as the white race has done.”[209] The note criticized anti-segregation dicta in a North Carolina Supreme Court opinion invalidating a residential segregation ordinance on narrow grounds.[210] The author complained that “the court seems to have been impressed by the time-worn sophistry that, if the power exist[ed] to segregate whites and blacks, then the power must likewise exist to segregate Republican and Democrat, persons of Irish descent and those of German descent, Protestant and Catholic.”[211] The author added that this argument was “conclusively disposed of” in Plessy.[212]
Commentators also disputed the notion that residential segregation laws unconstitutionally interfered with property rights. A Virginia Law Register author concluded that residential segregation ordinances were well within the police power, despite their effects on property rights.[213] An article in the Virginia Law Review stated that the “object of race segregation statutes is to preserve the peace and prevent conflict and ill-feeling, which experience has often shown to result from too close contact of the races.”[214] The author admitted that such statutes take property without due process “to a certain extent,” but “no more so than countless other police regulations.”[215]
A student note in the Michigan Law Review examined the Maryland case that overturned a segregation ordinance because it interfered with vested rights.[216] The author noted that the court stated in dicta that residential segregation ordinances would generally be lawful, a statement that the author found to be “thoroughly sound.”[217] The author added that there seemed to be a clear trend in courts favoring an increase in the scope of the police power.[218] The author wondered whether “[w]ith racial conditions in our large cities becoming more and more acute” the Maryland opinion might eventually be “denounced as ultra-conservative” for putting any restrictions on segregation ordinances.[219] In other words, this student thought that forbidding a city from uprooting existing homeowners who lived on racially-mixed blocks imposed irresponsibly conservative limitations on progressive policy goals.
The residential segregation case that eventually reached the Supreme Court originated in Louisville, Kentucky. Beginning in 1908, wealthy black businessmen and professionals in Louisville began to buy houses in white residential neighborhoods.[220] Apparently, this caused a great deal of alarm and consternation among whites. Many whites began to rent homes to avoid the possibility of being “trapped” next to black neighbors.[221]
Public agitation for a segregation ordinance began in November 1913. W.D. Binford of the Louisville Courier-Journal and Times advocated a segregation ordinance in a speech to the Louisville Real Estate Exchange.[222] He argued that such an ordinance would protect “the property owners of Louisville who have sacrificed so much in the past from the effects of the negro’s presence.”[223] The Courier-Journal was neutral on the ordinance, but the Times supported it. An editorial in the Times reported that property values in many sections of the city declined by half after blacks had moved in.[224]
Binford’s speech encouraged whites who lived near black neighborhoods to lobby their councilmen for a segregation ordinance.[225] In January of 1914, a councilman introduced such a bill.[226] A group of prominent blacks, meanwhile, formed a branch of the NAACP to fight the proposed ordinance.[227]
Despite the best efforts of the NAACP, the City Council voted 21-0 in favor of the ordinance in March.[228] The ordinance then went before the Board of Alderman, which also passed the ordinance unanimously. On May 11, 1914, Mayor John Bushmeyer signed the ordinance into law.[229]
According to its preamble, the ordinance was passed
to prevent conflict and ill-feeling between the white and colored races in the city of Louisville, and to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored respectively.[230]
The body of the ordinance forbade “any colored person to move into and occupy as a residence . . . any house upon any block upon which a greater number of houses are occupied . . . by white people than are occupied . . . by colored people.”[231] The opposite restriction applied to whites. Anyone violating the ordinance was subject to a fine of no less than five nor more than fifty dollars per day of violation.[232]
The national NAACP helped the local branch plan a challenge to the ordinance.[233] Backed by local real estate operators,[234] they soon organized a test case.
William Warley, an active African-American member of the Louisville NAACP, signed an agreement to purchase a lot on a majority-white block from Charles Buchanan, a white real estate agent who opposed the segregation ordinance.[235] The contract between the two parties specified that the transaction would not be consummated unless Warley had “the right under the laws of the state of Kentucky and the city of Louisville to occupy said Property as residence.”[236] Warley refused to complete the transaction when he “discovered” that the Louisville segregation law would prohibit his residing in a house on the lot he was to purchase.[237] Buchanan, represented by NAACP lawyer Clayton Blakley, then sued Warley in local court.[238]
Blakley argued that the law illicitly reduced the value of a white man’s property by preventing him from selling his property to blacks. The law therefore violated his client’s Fourteenth Am