The party of Jefferson: what the Democrats can learn from a dead libertarian lawyer

Reason, Dec, 2007 by Damon W. Root

In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law "prevents the plaintiff from selling his property for the only use to which it can be put," they wrote. "It thus destroys, without due process of law, fundamental rights attached by law to ownership of property. "Furthermore, the law's true purpose was not "to prevent conflict and ill-feeling," as it claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter." Were such a restriction upheld, they argued, "an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable"

Among the legal authorities the brief cites is Lochner v. New York (1905), perhaps the Court's most famous--some would say infamous--decision regarding economic liberty. In Lochner, the Court struck down a New York law setting maximum working hours for bakery employees as a violation of the Fourteenth Amendment right to liberty of contract. Writing for the 5-4 majority, Justice Rufus Peckham held that New York's "real object and purpose were simply to regulate the hours of labor ... in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee." Therefore, the right to liberty of contract "cannot be prohibited or interfered with, without violating the Federal Constitution."

In its Buchanan brief, the state of Kentucky took a dimmer view of economic liberty. Advocating the approach known as "judicial restraint" the state argued that the Court should defer to local judgment. "Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object," the brief argued, "is a legislative and not a judicial question" Furthermore, "the injury [to property rights] is merely incidental to the city's right to segregate, and does not warrant the overthrow of police regulations. "As for Storey and Blakely's contention that the law forced blacks to inhabit the city's worst neighborhoods, "the improvement of the negro's condition is limited only by his own character and efforts."

The Court disagreed. "Property is more than the mere thing which a person owns," Justice William Day held for the unanimous body. "It is elementary that it includes the right to acquire, use, and dispose of it." Accepting the Storey-Blakely argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment "operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."

Storey was justifiably thrilled at the victory. "I cannot help thinking it is the most important decision that has been made since the Dred Scott case" he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard, "and happily this time it is the right way." W.E.B. Dubois, the editor of the NAACP newsletter, The Crisis, heartily agreed, crediting Buchanan with "the breaking of the backbone of segregation"