Richard A. Epstein*
The two principal papers in this collection are devoted to an analysis of one of the Supreme Court's landmark decisions of the Progressive era, Buchanan v. Warley.1 Both David Bernstein2 and Michael Klarman3 reveal ambitions that go beyond a single case, as each discusses in detail a large part of the Progressive era jurisprudence on race relations that set the stage for Buchanan v. Warley. A short introduction is hardly the place to quibble with these papers on points of detail. But it is the place to raise one neglected theme that requires fresh emphasis. The constitutional jurisprudence that led to the disgraceful judicial performance on race relations in the Progressive era has-in its critical theoretical structure-much in common with our current constitutional jurisprudence on property rights and the police power. As the one notable exception to that sorry assessment, Buchanan represents a sharp and welcome departure from the dominant temper of its time.
Buchanan was a staged litigation challenge to a Louisville racial zoning ordinance. The ordinance prohibited blacks from living in neighborhoods designated as predominantly white, and likewise prohibited whites from living in neighborhoods designated as predominantly black.4 The purpose of the reciprocal prohibition was to bring the case within the scope of the Supreme Court's separate-butequal doctrine; the Court had demonstrated a willingness to invalidate laws that did not satisfy this minimal requirement.5 But the power imbalances and intended disparate impact that led to the ordinance's adoption were clear, notwithstanding its facial neutrality. The prohibitions on blacks moving into white neighborhoods cut much more deeply than those in the opposite direction. It was the white power structure that passed the ordinance. Its members were not interested in moving into black neighborhoods; they were concerned with keeping blacks out of their neighborhoods.
To challenge this ordinance, a white seller and black buyer entered into a contract for the sale of land in a white-designated neighborhood. The contract's key clause read:
It is understood that I am purchasing the above property for the purpose of having erected thereon a house which I propose to make my residence, and it is a distinct part of this agreement that I shall not be required to accept a deed to the above property or to pay for said property unless I have the right under the laws of the State of Kentucky and the City of Louisville to occupy said property as a residence.6
The black buyer refused to take title on the ground that the local zoning ordinance made it impossible for him to live on the premises. Buchanan, the white seller, then sought specific performance of the contract. The occupancy clause was added for litigation purposes, for without the clause the buyer could not have resisted specific performance because he would have been free to resell or lease the property to whites. After all, the ordinance did not deny the black buyer the right to own property in the white neighborhood; it just denied him, and all other blacks, the right to live there. Not surprisingly, the Kentucky Court of Appeals upheld the Louisville ordinance as within the state police power.7 The Supreme Court then struck it down under the Fourteenth Amendment. What accounts for the difference?
To modern sensibilities, this constitutional challenge sounds like a harbinger of the Equal Protection Clause arguments that some thirty-six years later persuaded the Court to strike down school segregation in Brown v. Board of Education.8 But those developments still lay far in the future and rested on a range of sociological assumptions that had not found expression in an earlier age. Instructively, Buchanan was decided on grounds that had far more to do with the protection of property than with the guarantee of equal protection. Its property-based outcome rested on two key premises. …