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Court strikes down racial segregation ordinance

February 2016:– It was 100 years ago that the Supreme Court of the United States heard oral argument in Buchanan v. Warley, in which it struck down a Louisville, Kentucky, city ordinance that prohibited Black people from moving to city blocks where the majority of residents were White, and vice versa. The decision, written by Justice William R. Day, was unanimous. There was no dissent, not even from Chief Justice — and former Confederate officer — Edward Douglas White, who had voted with the majority in Plessy v. Ferguson. In observance of Black History Month, and in view of present-day calls for segregation on campus (strange but true), I offer a conspectus of Buchanan v. Warley, an important victory in the struggle for liberty and equality.

The case arose when Post Office employee and part-time newspaper publisher William Warley, who was Black and a leading member of the Louisville NAACP, entered a contract to buy a plot of land from real-estate agent Charles H. Buchanan, who was White. Both men opposed the city ordinance and went to court in order to test its constitutionality. To that end, their contract contained a clause that said the buyer (Warley) would only close the deal if he had the right under the laws of Kentucky and Louisville “to occupy said premises as a resident.” This condition, of course, was one that could not be met, and it provided Buchanan with a basis for asking the circuit court for specific performance, i.e. an order compelling Warley to pay for the property.

Neither the circuit court nor the Kentucky Court of Appeals would order Warley to pay for a property he could not lawfully occupy, reasoning that the ordinance gave Warley a complete defense. So the case went up to the Supreme Court of the United States, with Buchanan arguing that the ordinance could not provide Warley with a defense because it was unconstitutional. This was a situation the ordinance’s drafters had foreseen, and they had designed it with a constitutional challenge in mind.

The ordinance started out as a policy proposal from a Louisville resident by the name of W.D. Binford, who  worked as a manager at a local newspaper. He and his allies knew about the constitutional infirmities that had undone segregation ordinances in Baltimore and elsewhere, and planned a workaround.  For a detailed account of the campaign see Life Behind a Veil: Blacks in Louisville, Kentucky, 1865-1930, by George C. Wright; As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods, by Stephen Grant Meyer; and Race, Place, and the Law, 1836-1948, by David Delaney.

Binford pitched the enforced-segregation idea to a luncheon gathering of the city’s real-estate agents, a group called the Real Estate Exchange. He suggested a measure free of the flaws that had stymied other segregation ordinances. Perhaps because of the failure in Baltimore, Binford’s speech met with little enthusiasm. But he started organizing, and soon had enough White neighborhood associations on his side to make property-owners and politicians take notice.

So, although initially tepid, many real-estate agents came around to Binford’s suggestion. Not J.D. Wright, however, an officer of the Real Estate Exchange, who appeared alongside William Stewart of the NAACP to argue against the proposed ordinance at the city council hearing. But Wright and Stewart did not prevail. The force that they and other opponents of segregation were battling against was the political equivalent of rampant climate change.

Segregation was on the rise across much of the country, and one of its most ardent advocates, Woodrow Wilson, occupied the White House. In Louisville, Binford and his fellow activists were threatening to throw out any councilors who failed to back their proposal; they were well organized, vocal, and enjoyed the support of the local Democratic newspaper, the Times. Not surprisingly, in view of the grassroots activism, the city council voted 21:0 in favor, and on May 11, 1914, the mayor, a Democrat named John H. Bushemeyer, signed into law a measure titled,

“An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”

Banning Black people from living on the same block as White people was the way to “prevent ill-feeling,” the ordinance declared, so certain provisions were necessary. What sort of provisions? “Reasonable” ones. They did not appear all that reasonable to the members of the NAACP, who set in motion the test case.

When the case reached the Supreme Court, the plaintiff, Buchanan, was represented by three NAACP lawyers, including the organization’s president, Moorfield Storey. This article provides a concise description of Storey’s line of argument and the significance of the Court’s decision (scroll down to the section headed “civil rights and property rights”).

In addition to Storey’s, the NAACP filed an amicus brief written by William Ashbie Hawkins, a Black attorney with a practice in Maryland who “participated in almost every major civil rights case in Maryland during the first quarter of the Twentieth Century… [and] ran unsuccessfully as an independent candidate for the United States Senate [in 1920], a first for a black citizen of Maryland,” according to J. Clay Smith in Emancipation: The Making of the Black Lawyer, 1844-1944. It is worth remembering that Hawkins was born in 1862 in Lynchburg, Virginia — which at the time housed a prison camp for Union POWs — so, although the record is not clear, it is likely that he was born into slavery. Property rights and liberty of contract must have had a powerful import to someone the law had until recently considered to be property with no right to enter into contracts of his own.

The NAACP argued that the ordinance violated the Fourteenth Amendment’s guarantee of equal protection including “the right to acquire and possess property of every kind [and] to dispose of it and to live upon one’s own land.” In a phrase that the Court found persuasive, Storey argued that the ordinance “destroys, without due process of law, fundamental rights attached by law to the ownership of property.”

In response, the attorneys advocating for the validity of the ordinance (ironically, representing Warley) claimed that “the use of property and liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law.” Property rights are not absolute, they contended. After all, cities are free to limit the height of buildings and prohibit billboards in residential neighborhoods: The segregation ordinance was analogous to regulations of that sort, they claimed.

The Court came down on the side of the NAACP.  It acknowledged the government’s police power, noting that “legitimate business may… be regulated in the interest of the public.” But it concluded:

We think this attempt to prevent alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

This Black History Month, I tip my hat to the lawyers and litigants of the NAACP who brought about the decision in Buchanan v Warley.  In particular, I honor the memory of Attorney William Ashbie Hawkins, and William Warley, whose service to justice the Wilson administration saluted by firing from him from his job in the Post Office. May they rest in peace.

Peter Vickery July 2012

 

New regulations for ballot law commmission

The State Ballot Law Commission (of which I am a member) is proposing a new set of regulations that, if adopted, would govern the body’s adjudicatory proceedings. To read them click here.

To comment, you can either show up at the public hearing, which will be held in One Ashburton Place (17th floor), Boston, at 10:00 a.m., September 8, or file a written submission by noon that day.

For any of my Legislative Drafting students who happen to be reading, please note that this approach, called notice-and-comment rulemaking (for obvious reasons) is how agencies are supposed to operate: First, determine the extent of the agency’s constitutional and statutory authority; second, draft regulations consistent with that authority; third, publish them for public comment; fourth, meaningfully review the comments; and, finally, only then adopt the regulations.

SBLC_June 13 2014
State Ballot Law Commission

Sometimes agencies act in a more de haut en bas manner, unilaterally adopting polices and practices without the rigmarole of notice and comment. Keep an eye out for this sort of behavior. With a few informal guidelines here and a handful Dear Colleague letters there, an agency gradually becomes less and less accountable, we inch further away from the rule of law, and we lose a little more of the “self” part of self government. Efficiency is a virtue, but not the only one. Although time-consuming, the notice-and-comment process is worth the effort.

Money, money, money, etc.

Is it an appropriations bill or a money bill? That is the constitutional question currently before the Supreme Judicial Court (SJC) as the result of a disagreement between the two chambers of the Massachusetts Legislature. The dispute concerns the state budget and taxes.

The origination clause in the Massachusetts Constitution says that money bills have to originate in the House of Representatives, not in the Senate. But when the House passed the general appropriations bill for 2016, the Senate noticed two sections about tax expenditures that (in the Senate’s opinion) provided an opportunity to change the tax laws. Not so, said the House, and asked the SJC to provide an advisory opinion on whether the Senate’s action violated the origination clause.

When the SJC asked for amicus briefs, I filed one. This news story in The Republican/Masslive describes the issue and mentions my brief.

Peter Vickery, Esq.
Peter Vickery, Esq.

New Political Disclosure Law

A new report describes some of the changes that the Massachusetts Legislature made to our commonwealth’s campaign finance laws after the decisions in SpeechNow.org v. FEC and Citizens United v. FEC. Most of the changes will come into force next January, but some are already in effect.

The report highlights some of the “remedies,” as the Office of Campaign and Political Finance (OCPF) calls them,  including the new requirement that some people who help pay for certain political advertisements must reveal their names. By way of an Act Relative to Campaign Finance Disclosure and Transparency, the Legislature amended General Laws Chapter 55, Section 18G so that any entity that makes an independent expenditure* in a political campaign (including a ballot-question campaign) has to publicly list the people who contributed $5,000.00 or more. This is one of the changes that has immediate effect, so it applies to the current state election campaign.

Compulsory-disclosure advocates such as Common Cause say that the goal is to help voters make “informed decisions,” prevent wealthy individuals from “secretly influencing” elections, and “hold corporations accountable.” It is no secret that people like Tom Steyer, Michael Bloomberg, George Soros, and the Koch brothers, spend large amounts of money on political campaigns; nor is it a secret that these big-dollar interventions are themselves subject of political debate and non-profit advocacy.

Prior to the new law, Massachusetts voters could already learn which organizations were making independent expenditures. For example, OCPF’s winter 2013 newsletter (page 2) explained that in the 2012 state elections the biggest independent-spender was none of the afore-mentioned billionaires, but rather the Massachusetts Teachers Association, closely followed by another union, SEIU 1199. One result of revised compulsory-disclosure law is that Massachusetts voters will promptly know the identities of some of the individuals — the ones who spend ≥$5,000 — behind the independently-funded political ads that precede Election Day.

Voters may well find it helpful to know who is paying for a particular piece of political propaganda. After all, show me who a man’s friends are, and I will tell you who he is, as Ralph Waldo Emerson said (I think). But compulsory-disclosure laws have come in for criticism not only because they arguably favor incumbents but also because of the way some organizations use the information to target and intimidate individuals who disagree with them, individuals such as Scott Eckern and Marjorie Christoffersen. Indeed, as this article in The Nation makes clear, the very purpose of “outing” donors is to apply public pressure so as to “shame them and hurt business” until they “stay on the sidelines” at election time. Given this explicit objective of chilling speech, it seems likely that opponents will challenge the constitutionality of the latest version of the compulsory-disclosure law in court.

*An independent expenditure is where people promote or oppose a candidate or cause independently, i.e. not by making a campaign contribution to a candidate or ballot-question committee.

Justin Sargent 1
Peter Vickery, Esq.

This month in constitutional history

360th
Happy Birthday, Instrument of Government

My current successor as Governor’s Councilor for Western Massachusetts is one of three plaintiffs suing Governor Patrick over his refusal to appoint to the bench a would-be judge who, the complaint alleges, had obtained the consent of the Governor’s Council. Have you ever wondered why, when it comes to appointing judges, the Governor of Massachusetts needs the “advice and consent” of the Governor’s Council and the President of the United States needs the “advice and consent” of the Senate? Here is the reason.

Although there is little in the way of hoopla, this year marks an important point in constitutional history, namely the 360th anniversary of the adoption of Britain’s first (and shortlived) written constitution, the Instrument of Government. It is from the Instrument of Government that John Adams, the author of the Massachusetts Constitution, and the other framers of the U.S. Constitution drew some inspiration and at least one key phrase, namely “advice and consent.”

John Lambert and John Adams

The Instrument of Government was a product of the English Civil War, the overthrow of the monarchy, and the rise of Oliver Cromwell. In 1653 John Lambert, a general in Cromwell’s New Model Army, drafted the Instrument, article IV of which states that the “Lord Protector [i.e. Cromwell] with the advice and consent of the major part of the council shall dispose and order the militia for [the peace and good of the three kingdoms] in the intervals of Parliament.”  The phrase appeared again in the 1686 Massachusetts royal charter, which authorized the Governor to make judicial appointments with “the advice and consent of the council.” John Adams kept that proviso when he drafted Constitution of the Commonwealth of Massachusetts in 1780.

Adams’s fellow framers of the Constitution of the United States must have warmed to the phrase because it made its way into article II, section 2 in connection with the President’s power to make treaties and to appoint “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.” These are appointments the President can made only with the “advice and consent of the Senate.”

As if that were not excitement enough, this month we celebrate the brief term of Anthony Ashley Cooper who, in August 1653 (while John Lambert was busy drafting the Instrument) served as Lord President of the Council of State, the executive body that intermittently ran England, Wales, Scotland, and Ireland during the Commonwealth. His term of office lasted for all of two weeks. Cooper was a royalist-turned-parliamentarian who returned to the royalist fold after Cromwell’s death, wisely as it turned out. After the restoration of the monarchy, Cooper continued to hold high office, including another stint as Lord President of the Council, and became first Earl of Shaftesbury. Poor John Lambert, in contrast, the drafter of the Instrument of Government, stayed true to the parliamentary cause and died in prison.

Anthony Ashley Cooper and John Lambert both made career choices with long-term consequences.  For members of the Massachusetts Governor’s Council who sue the Governor, the stakes are not so high.