Is there a limiting principle to Shelly v. Kramer.

Great Debates
1

As background for those unfamiliar with the case, we will start with the first proposition. Since 1883, the Supreme has held that the 14th amendment does not apply to private acts of discrimination but only to those that involve the state or state action. So, if I am a racist and forbid all blacks as guests in my home, that presents no constitutional bar. Further, before the 1964 Civil Rights Act I could bar blacks from my business otherwise open to the public.

The skinny on the rule that there must be state involvement before the 14th amendment was triggered. Then along came Shelley.

The facts are undisputed. In the early 1900s residents of a community inserted restrictive covenants into deeds prohibiting a sale between the white owners and any black or Asian purchaser. In the 1940s an owner violated that clause by selling his home to a black couple. Other residents in the neighborhood sued and the state Supreme Court enforced the racial covenant.

The U.S. Supreme Court heard the appeal and found that since the state by its judicial and executive department had enforced the covenant, the 14th amendment protections were triggered because state involvement was required to enforce the covenants.

Now, I have no problem with the result. I am not a racist and despise such covenants. But was the Court right to find state involvement? And what limits its holding?

Any and every right or freedom must result in state involvement to enforce it. The basic proscription against murder or rape requires that a police force respond to a telephone call and come to the rescue if an attempted murder or rape is in progress. If the state refuses, we descend into anarchy.

So where is this private discrimination allowed if not for the ultimate state protection? As I said above, excluding blacks from my home is a legal purpose (although not laudable) . To enforce that prohibition, I must call for help from the local police force if a black person is refusing to leave upon request and physically getting the best of me. Shelley would seem to state that since agents of the government, the police force, are enforcing my personal prejudices, the local force is violating the 14th amendment. That can’t be the case or else all private acts of discrimination are ultimately unenforceable.

That seems to swallow the entire public/private distinction previously made. All rights or freedoms, for their enforcement, require state intervention. Has any limiting principle been applied to Shelley?

2

I’m no lawyer or otherwise expert, but my first thought about your example of ejecting a black person from your home is that the police do not have to be enforcing your racist preference, they are just enforcing your right as a homeowner to tell someone to leave your house.

A better example would be if you lived in a development where all of the homeowners have signed an agreement as part of their purchase contracts that they would never have black persons as guests in their homes. Such a contract would require government involvement to enforce, in a way that just kicking someone out of your home (for any reason whatever) would not require. To get government involvement, you or one of the other homeowners would have to break the contract, and someone would have to sue to enforce it.

So, in short, it seems like you can’t have a contract to enforce racist restrictions because such a contract requires government involvement to enforce, and that’s what Shelley is stating.

Lawyers? Anyone?

3

Have you actually read the decision? The Court clearly said that the state had interfered in a private transaction between two willing parties, and that the state had done so for an unconstitutional reason (racial discrimination.) That’s about 180 degrees off from your example of calling the police when someone refuses to leave your house.

I’m not even a lawyer and I can see the difference there.

4

If any person refused to leaves your home and physically attacks you, you can call the police. The reason the police will come and remove the person will not be because they are black, but because they are breaking the law. (trespassing) I assume you never wanted them in there in the first place but even if you did invite them in, once you tell them to leave, they have to leave. It’s your house.

5

I don’t see a difference. Yes, the state had interfered in a private transaction. But it did so because the prior owners had an enforceable contractual right to void that transaction. Any racial discrimination was a private act by the authors of the covenant.

If the holding is that enforcing a private act of racial discrimination is unconstitutional, then how is the same enforcement of ejecting a black man from my home, another private act of racial discrimination not the same?

6

I’m going to move this to Great Debates, it seems to fit in a bit better there.

7

I think you’re stretching things, OP.

8

I’d like to bring the 4th to last paragraph of the judgment to your attention:

In other words, per the 14th amendment the contract was not enforceable as you can’t compel the government or its agents to do something that is unconstitutional (eg seize someone’s property because they are black).

This is different from calling the police to remove someone from your property for a constitutional reason (because it’s your property and you don’t want them there) that has nothing to do with the colour of their skin (even if that is the reason they aren’t welcome on your property).

9

If that’s the gist of the case, I agree with the OP. Obvious disclaimer: such a covenant is repugnant. But the question is whether or not it’s constitutional. If the premise of the decision is that the covenant was constitutional by virtue of it involving only private entities, right up to the moment that a particular transgression required the courts to enforce it, that seems an absurdity that blows up any notion of “private act.” Nothing is private by that definition, or at least nothing remains private if an individual requires the authorities to protect their right to act in that manner.

I think the analogy of barring blacks from your home to fit the same logic. I hold a backyard barbecue for everyone in the neighborhood–except the black guys. Can I do that? One of the black guys shows up and refuses to leave. Can I have the cops remove him? Does that request make my right to bar the black guys evaporate? Should the cops let him back in then, once they’ve acted? If the basics of the case are as represented, that seems circular, an absurdity. (To repeat my sincere disclaimer: Such practices are repugnant. But that’s not the question.)

10

I’m interested, why is that a distinction? What makes property rights (enforced for racist reasons) different than contract rights (enforced for racist reasons)? What’s the constitutional subtlety?

11

They aren’t contract rights being enforced for racist reasons. It is a racist contract that is being enforced.

If the contract was against some other thing, like people making under a certain amount of money, but was not being enforced against white people, but only black people, then it would be contract rights being enforced for racist reasons. That would be comparable to the trespass issue.

Of course, that’s just the distinction I see, and I agree it’s a rather weak one. I could easily see it have being decided the other way, along jtgain’s argument: the state is necessarily involved in enforcing peoples rights. But I can at least see how a distinction could be made.

12

The difference is that the court cannot compel someone to do something illegal and does not enforce illegal or unconstitutional clauses in contracts.

It is illegal to refuse to sell to someone based on their membership in a protected class. In other words, everyone has a right to buy the property once it is up for sale (assuming that they can agree on a price with the current owner). If the courts void the sale of the home on the basis that that person was black, they would be violating that right.

In contrast, unless a property is accessible to the general public (and a few other exceptions), no one has the right to be there without consent of the owner.

13

As others have said, the government enforcing your right to expel people you don’t want is independent of the motivation you have for excluding them. Now if you made everyone attending the party sign a contract agreeing that they wouldn’t bring a black friend, and then when one of your friends did bring a black person, you tried to sue them for breach of contract, you would have a problem.

14

The Supreme Court has held that failure to provide police protection is not unconstitutional:

15

Maybe, but I’m still struggling to see the distinction. In the case in question, I thought the premise was not that the covenant was illegal per se, it was only rendered so because it required the courts to enforce it. I get that courts can’t compel someone to do something illegal, but if the covenant were illegal per se, I don’t think this would have required a SC ruling. That would have been handled pretty quickly.

From this cite:

That seems consistent with jtgain’s interpretation. It also goes on to say:

…which makes sense to me. The state can’t impose such a restriction legislatively. But this:

…seems to be the crux of the decision, and that’s where it jumps the rails, ISTM. If that’s so, there need be no reference to:

That doesn’t square with:

…except to the extent that it blows up any notion of private acts being singular, since any private act can be disrupted to an extent that it would require the intervention of the state. They seem to be hanging their hat on this non sequitur by also categorizing the purchase of property as having special EP properties. Seems illogical to me.

16

Seems logical to me. You’re not prevented from signing such agreements (that is, you won’t be arrested for doing so, it’s not unconstitutional to let people signing such contracts, you can be a racist) but the state won’t enforce them (it would be unconstitutional to, the state won’t partake in your racism). I don’t know from a legal point of view, but from a practical point of view, it seems to make complete sense.

17

The first principle was that private deprivation of rights or privileges are a-okay under the fourteenth amendment. I can (pre-1964) refuse to serve blacks at my restaurant, with contractual agreements with my employees and landlords.

But the signing of such agreements would be, at best, a masturbatory exercise unless someone, anyone, objected and state action was required to enforce the agreements, in violation of the fourteenth amendment, per Shelley.

However, state involvement is ultimately required to enforce ANY type of agreement or other right or privilege I have. That includes my racist policy of excluding all black guests from my home.

Allow me to reword your post: Seems logical to me. You’re not prevented from excluding blacks from your home (that is, you won’t be arrested for doing so, it’s not unconstitutional to let people exclude blacks from their homes, you can be a racist) but the state won’t enforce it (it would be unconstitutional to, the state won’t partake in your racism). I don’t know from a legal point of view, but from a practical point of view, it seems to make complete sense.

Under your view, I AM ACTUALLY then prevented from excluding blacks from my home.

18

I simply don’t see the difference. Can the government enforce my tort or statutory rights influenced by racism, but not my contractual ones? I received my home because of a contractual right.

Why couldn’t we say that the signers of the covenant in Shelley had the government enforcing their rights to be “independent of the motivation” they had for excluding subsequent purchasers?

19

I think the trouble is that there is no limiting factor - the government just decided that discrimination against certain groups is bad enough that they won’t enforce contracts in some circumstances. There’s nothing to stop them in principle from doing the same to other enforcements - they could simply refuse to act if you wanted to exclude someone from your house if the exclusion was racially motivated.

A libertarian would say that the government should enforce any legal contract. These kinds of contracts were legal when they were signed. A liberal says the Constitution is a living document, and one shouldn’t expect the equal protection of the laws if the Supreme Court doesn’t like your motivations.

Regards,
Shodan

20

The difference is that by default a person has no right to be on your property if you tell them to leave (unless they are a tenant, emergency responder, etc). The police aren’t violating that person’s rights because they have no right to be there in the first place.

On the other hand, everyone has the same right to have the same opportunities to participate in society as anyone else and the courts don’t have the ability to take that away from them just because of their skin colour. The courts allow you to hold racist beliefs, but cannot enforce them to the detriment of others’ rights.