Reflections on the 100th Anniversary of Buchanan v. Warley: Recent Revisionist History and Unanswered Questions

Cumberland Law Review, Forthcoming

George Mason Law & Economics Research Paper No. 18-13

25 Pages Posted: 1 Jun 2018

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: June 1, 2018

Abstract

In 1917, in Buchanan v. Warley, the Supreme Court invalidated a Louisville residential segregation law, one of a wave of such laws spreading through the United States. Even though Buchanan v. Warley was a dramatic victory for racial equality at a time in American history when anti-black racism was at a post-Civil War peak, with an avowed segregationist occupying the White House, the opinion was largely ignored or misinterpreted until recently. The problem has been that Buchanan does not fit the dominant narrative about the so-called Lochner era Supreme Court. Part I of this article reviews scholarship that has challenged the traditional dismissive view of Buchanan v. Warley over the last twenty years.

Part II of this article suggests various research topics raised by Buchanan v. Warley that should receive more scholarly attention, including: (1) How did African Americans manage to migrate to formerly all-white neighborhoods despite restrictive covenants and other barriers?; (2) To what extent did Buchanan v. Warley reflect a viable alternative civil rights vision to the progressive vision that came to dominate legal discourse?; (3) Under what circumstances judicial intervention on behalf of minority groups is likely to occur, and when it is likely to be successful; and (4) To what extent can early twentieth-century progressivism, as opposed to societal racism more generally, can be blamed for the rise of residential segregation ordinances that led to Buchanan?

Keywords: Buchanan v. Warley, segregation, racial equality, restrictive covenants, progressivism, societal racism, Supreme Court, property

JEL Classification: K10, K11

Suggested Citation

Bernstein, David Eliot, Reflections on the 100th Anniversary of Buchanan v. Warley: Recent Revisionist History and Unanswered Questions (June 1, 2018). Cumberland Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 18-13. Available at SSRN: https://ssrn.com/abstract=3188975

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

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