Brent M. Rubin

92 Texas L. Rev. 477

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In Buchanan v. Warley, the Supreme Court struck down a Louisville, Kentucky ordinance mandating residential segregation in the heart of the Lochner era.  Rather than rely on the Equal Protection Clause, as our modern antidiscrimination jurisprudence most often does, the Court employed substantive due process and found that the ordinance violated both African-Americans’ and whites’ right to own, use, and dispose of property.

Mr. Rubin begins by briefly reviewing the relevant libertarian and segregationist jurisprudence that came into conflict in Buchanan and outlining the history of residential segregation ordinances from their inception in Baltimore to the Supreme Court’s decision in Buchanan.  Mr. Rubin continues by examining several scholars’ perspectives on Buchanan.  Next, he presents his criticism on substantive due process as antidiscrimination law by arguing that while the libertarian thrust of the theory proved helpful in combatting discrimination via statute, its emphasis on contractual freedom advanced the restrictive covenants that perpetuated residential segregation.  Further, doctrinal weaknesses in substantive due process aided cities that enacted segregation ordinances after Buchanan.  Finally, Mr. Rubin attempts to sketch the foundations of a social history of Buchanan that examines its impact on and the role of socioeconomic class within the contemporary African-American community.  He argues that Buchanan and its emphasis on property rights dovetailed with certain African-American social institutions and forces, such that all but the direst legal needs of working-class blacks were left unattended.  In contrast, the legal and economic needs of middle- and upper-class blacks received a relatively greater deal of attention during this era.  Thus, Mr. Rubin concludes that the events following Buchanan show that while substantive due process can, in some cases, provide relief from discriminatory legislation, the doctrine as a whole has significant weaknesses as antidiscrimination law.