A 1914 Louisville, Kentucky city ordinance prohibited blacks from buying houses on blocks where the majority of the residents where white, and at the same time, prohibited whites from buying houses on blocks where the majority of the residents were black. No one was forced to move under the law. In order to challenge the law, Warley, who was black, agreed to buy Buchanan’s house. The contract for purchase provided that ‘‘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.’’ After signing the contract, Warley then refused to pay for the house, asserting that the law prohibited him from doing so. This allowed Buchanan, the white seller, to sue Warley, for breach of contract. The Kentucky Supreme Court upheld the ordinance and declared that Warley did not have to pay for the house. This allowed the case to go to the U.S. Supreme Court.
This was the first case brought to the Supreme Court by the newly organized civil rights organization, the National Association for the Advancement of Colored People (NAACP). Moorfield Storey, one of the leaders of the American bar, argued the case for Buchanan. The posture of the case was of course odd. Buchanan, a white man, was suing Warley, a black, to force him to buy a house in a predominately white neighborhood. If Buchanan won, then all blacks would win.
The Supreme Court framed the question in simple terms: ‘‘May the occupancy, and, necessarily, the purchase and sale of property of which occupancy is an incident, be inhibited by the States, or by one of its municipalities, solely because of the color of the proposed occupant of the premises?’’ The Court refused to limit the Fourteenth Amendment to the rights of blacks or other minorities, noting that ‘‘while a principal purpose of the [Fourteenth] Amendment was to protect persons of color, the broad language used was deemed sufficient to protect all persons, white or black, against discriminatory legislation by the States.’’ Thus, under the Fourteenth Amendment, Buchanan had just as much of a right to sell his house as Warley did to buy a house.
In upholding Buchanan’s right to sell his house, and Warley’s right to buy it, the Court quoted from Strauder v. West Virginia (1880), which had struck down a West Virginia law that prohibited blacks from serving on juries. In Strauder, the Court had said that the Fourteenth Amendment was ‘‘designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.’’ If this was so, then surely blacks could buy houses wherever they wanted. The Court also quoted the federal Civil Rights Act of 1866, which had specifically guaranteed that blacks would have the same right as whites to ‘‘inherit, purchase, lease, sell, hold, and convey real and personal property.’’ Justice William Day then asked, ‘‘In the face of these constitutional and statutory provisions, can a white man be denied, consistently with due process of law, the right to dispose of his property to a purchaser by prohibiting the occupation of it for the sole reason that the purchaser is a person of color intending to occupy the premises as a place of residence?’’ The answer was obviously that a law could not prevent the sale of property solely on the basis of the race of the buyer or seller.
While properly understood as a civil rights case, Buchanan must also be seen as civil liberties case protecting the right to own and convey property. The founders saw private property as a fundamental institution in society and key to a democratic state. Many of the early states had predicated voting on property ownership because they believed that only those with a financial stake in society should be able to vote. While this theory of political participation has long been discredited, the right to own—and to buy and sell—property has been seen as a fundamental civil liberty. Here the Court accepted this notion and applied it to race discrimination.
In reaching this result, the Court rejected the idea that racial segregation, which it had approved in Plessy v. Ferguson (1896), applied to the sale of real estate. The Court had no difficulty distinguishing between separating the races on trains, or in schools, and the real estate transaction in this case. Here there was no attempt to mix the races in a social setting. The Court declared that it lacked any power to influence racial relations and acknowledged that the ‘‘the law is powerless to control’’ racial views and feelings of white superiority to blacks or white hostility to blacks. But, in upholding the right of people to buy and sell property, the Court did not see itself doing any of these things. It was merely allowing citizens to exercise ‘‘their constitutional rights and privileges’’ to own land.
This case did not lead to housing integration. White landowners avoided integration through restrictive covenants which the Court approved on the same theory that approved Buchanan’s right to sell his land: that private individuals have a right to engage in contracts for their property. Thus, in Corrigan v. Buckley (1926), the Court undermined the value of Buchanan v. Warley by demonstrating that residential segregation could be achieved by private action— with court enforcement—even if it could not be achieved by actions of the state. Corrigan involved a private agreement among thirty-one landowners in Washington, DC, who all signed a restrictive covenant that prevented them from selling law their houses or land for twenty-one years. The Court unanimously upheld the covenant, thus preventing Irene Corrigan from selling her land to a black woman. In Shelly v. Kraemer (1948), the Court would finally hold that restrictive covenants could not be enforced by courts because that would force the courts to violate the equal protection of citizens. Thus, after 1948 people were free to sign restrictive covenants, but they could not be enforced by courts and thus anyone would break the covenant without fear of being sued.
References and Further Reading