Philip Sober Controlling Philip Drunk: Buchanan V. Warley in Historical Perspective

By Bernstein, David E. | Vanderbilt Law Review, May 1998 | Go to article overview

Philip Sober Controlling Philip Drunk: Buchanan V. Warley in Historical Perspective


Bernstein, David E., Vanderbilt Law Review


I. INTRODUCTION

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 AfricanAmericans 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 "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. …

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