Bernstein on Buchanan v. Warley

David Bernstein, George Mason University School of Law, has posted an important article from his backlist, Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective, which first appeared in the Vanderbilt Law Review 51 (1998).  Here is the abstract:

Racial zoning laws spread rapidly through the United States starting in 1910. The new NAACP was determined to challenge these laws. In addition to facing well-entrenched racism, the rise of Progressive sentiment within the legal world in the early twentieth century, with its strong emphasis on judicial deference local regulation of contract and property rights, seemed to bode particularly ill for these challenges.

Fortunately, the Supreme Court refused to assimilate contemporary racism and jurisprudential theories into its decision in Buchanan v. Warley. Rather, the Court protected individual constitutional rights from the broad-based popular and intellectual movement supporting residential segregation ordinances.

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, traditional jurisprudence had become associated with at least a mild form of so-called 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. The conflict between Plessyism and Lochnerism, and thus between sociological and traditional jurisprudence, came before the Supreme Court in Berea College v. Kentucky. 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 plain-tiffs 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. 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. 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. Civil rights advocates were predictably pleased with the decision, while law review commentators expressed disappointment and anger at the Court’s “unscientific” opinion.