Property and (Not “vs.”) the State

Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard University Press, 2013).

One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.

Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it.

While not the central theme of Saving the Neighborhood, Brooks and Rose’s history of racially restrictive covenants in the early twentieth century exposes a relationship between law and the state not easily captured by classical legal thought, which continues to frame our understanding of the period. One strand of this interpretation posits law (and property) as antagonistic to the state. Thus, in the so-called “Lochner era” we find courts striking down statutes on a regular basis in order to protect property rights.  In fact, in 1917, the U.S. Supreme Court struck down a racial zoning ordinance in Buchanan v. Warley, which eventually led to the rise of racial covenants (pp. 35-46).

Brooks and Rose’s account, though, offers a different view of property rights and their legal status. Their history of these ostensibly private agreements destabilizes the very idea of private property rights. Racial covenants were unstable legal devices that highlighted, as Shelley would demonstrate, that property law is centrally concerned with policing through the allocation of property rights. As Brooks and Rose demonstrate, the rise and fall of the enforcement of race covenants was the result of policy considerations.

The history of race covenants began with white real estate developers and neighborhood homeowner associations seeking to “save their neighborhoods.” The more legally vulnerable covenants were those created by neighborhood associations, as they lacked a key formal element required for creating a covenant: privity (pp. 78-87). Horizontal privity of estate required the covenant to be created at the time of the lease or sale of land, which was lacking when homeowner associations created covenants.

But covenant law also posed problems for developer-imposed covenants. For example, a covenant must “touch and concern” the property restricted (pp. 87-93). Traditionally, this element required a restriction on the physical use of property. But who could own property involved ownership, not the use of property. Early attempts to enforce developer covenants often floundered on this element. However, as “touch and concern” was broadened to include “value” (the protection of which is the chief purpose behind a covenant), courts began to recognize and enforce race covenants.

Changes in how courts approached the formal elements were tied to courts’ shifting policy concerns. For instance, in early cases courts invoked the proscription of unreasonable restraints on alienation to invalidate racial covenants (pp. 56-62). Apparently, a race-neutral market system was preferable to race covenants. But as judges began to work their way through the reasonableness of the restraint on alienation, they came to countervailing policy considerations: maintaining property values and alleviating social tensions (ch. 5). In redefining “reasonableness” courts reversed course to uphold race covenants, promoting both racial purity and a racialized market system in the process.

It is here where we can begin to see the line between state and courts begin to dissolve. Racial zoning ordinances, which were struck down by the Court in Buchanan, were exercises of the state’s police power to “protect the public health, safety, welfare, and morals” of the community. Maintaining property values and protecting the public peace was simply a judicial form of policing. It is this similarity between “policy” and “police” that points the way toward understanding courts as state actors, and property law as the delimitation of property rights by the state in its judicial mode.

Brooks and Rose’s history of race covenant law illustrates how dependent property rights are. Any dispute over property rights ultimately raises the question of whose rights are to be protected. Courts must choose. In doing so, they must identify interests beyond the parties to be protected; and this is a policy question. Even the decision to rely on formal elements of the law is ultimately a policy decision. It is thus policy that connects the state, courts, and property.

Saving the Neighborhood, like Shelley v. Kraemer, wonderfully disturbs our notions of legal liberalism and its artificial separation of public from private, state from law, and law from violence (which ultimately lay behind race covenants). Their book is a model that can help us to redraw the connections between law and the state during an important period in American legal history, especially in areas of ostensibly “private” law.