In the court of original jurisdiction in Kentucky, and in the Court of Appeals of that state, the case was made to turn upon the constitutional validity of the ordinance. 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. That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted.

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.
/O 34 127. 323. 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. 64 0 obj

We think these limitations are exceeded in laws and ordinances of the character now before us. Restored to Docket, April 17, 1916, for Reargument. /N 2 Property is more than the mere thing which a person owns. Furthermore the exercise of this power, embracing nearly all legislation of a local character is not to be interfered with by the courts where it is within the scope of legislative authority and the means adopted reasonably tend to accomplish a lawful purpose. Libertarianism existed as an ideology long before it was organized. Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era. © 2020 Reason Foundation | Privacy Policy | Accessibility | Terms Of Use, I have a new article in the Cumberland Law Review, Richard Rothstein's well-received The Color of Law: A Forgotten History of How Our Government Segregated America. “Segregation is unnatural and abnormal — nature will out.”. The Fair Housing Act did not need to outlaw such discrimination, since Shelley had already banned it. 0000000989 00000 n Why Are American Taxpayers Propping Up Mexico's Insolvent, Government-Owned Oil Company? 256, is controlling in principle in favor of the judgment of the court below. The statute of 1866, originally passed under sanction of the Thirteenth Amendment, 14 Stat. 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.

547. I have a new article in the Cumberland Law Review, for a colloquium on the one hundredth anniversary of Buchanan v. Warley. 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. 0 The Fair Housing Act did something else; it outlawed purely private discrimination. 0000001429 00000 n /Root 33 0 R 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. 0000010806 00000 n The effect of these amendments was first dealt with by this court in Slaughter House Cases, 16 Wall. This drastic measure is sought to be justified under the authority of the state in the exercise of the police power.

Since 8 of 10 houses were occupied by whites, Warley was not allowed to live on the block. Buchanan was a white individual who sold a house to Warley, a black individual in Louisville, Kentucky. /Parent 30 0 R The Fair Housing Act did something else; it outlawed purely private discrimination. Certain uses of property may be confined to portions of the municipality other than the resident district, such as livery stables, brickyards and the like, because of the impairment of the health and comfort of the occupants of neighboring property. Part I of this article reviews scholarship that has challenged the traditional dismissive view of Buchanan v. Warley over the last twenty years. 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. 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. 1917B, 283. True it is that dominion over property springing from ownership is not absolute and unqualified. 35 0 obj The assignments of error in this court attack the ordinance upon the ground that it violates the Fourteenth Amendment of the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States to acquire and enjoy property, takes property without due process of law, and denies equal protection of the laws. /L 108877 To the action for specific performance the defendant by way of answer set up the condition above set forth, that he is a colored person, and that on the block of which the lot in controversy is a part, there are ten residences, eight of which at the time of the making of the contract were occupied by white people, and only two (those nearest the lot in question) were occupied by colored people, and that under and by virtue of the ordinance of the city of Louisville, approved May 11, 1914, he would not be allowed to occupy the lot as a place of residence.

0000020562 00000 n 0000028588 00000 n Uh, the violence of the Civil War WAS government violence. BUCHANAN v. WARLEY. 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.

The right of the plaintiff in error to sell his property was directly involved and necessarily impaired because it was held in effect that he could not sell the lot to a person of color who was willing and ready to acquire the property, and had obligated himself to take it. The problem has been that Buchanan does not fit the dominant narrative about the so-called Lochner era Supreme Court. xref The authority of the state to pass laws in the exercise of the police power, having for their object the promotion of the public health, safety and welfare is very broad as has been affirmed in numerous and recent decisions of this court.

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