(1947), 9-2 Tannenbaum, Slave and Citizen (1947), I N

222
Chapter IX
THE NEGRO AND THE LAW
An American travelling outside the United States cannot help but be struck
by the vast interest displayed in the position of the Negro in his country.
The reason for that interest is not hard to find. ' Our American heritage
of freedom and equality has given us prestige among the nations of the
world, and a strong feeling of national pride at home. There is much
reason for that pride. But pride is no substitute for steady and honest per-
formance, and the record shows that at varying times in American history
the gulf between ideals and practice has been wide.' x To the foreigner, the
position of the Negro in the United States indicates that the American
ideal of freedom and equality for all men is still far from complete
realization.
For this gap between ideal and reality, American law must take a portion
of the blame. It is true that discrimination against the Negro in the United
States has roots deeper than the actions of legislatures and courts. Historical
causes reaching far back into North American origins have placed the
Negro race in the position of'second-class' citizens. 'The Civil War gave
the Negro legal equality with his former masters, but it could not and did
not give him either the experience in the exercise of freedom or the moral
status in the sight of his white fellow citizens to make the freedom of the
Negro an acceptable and workable relationship for them.' 2 Discrimina-
tion against the Negro is still embedded in the customs of a large part of
the United States.
It is, however, inevitable that the law should play a pivotal role in a
country whose political and legal institutions are British in origin. This is
especially true under the American constitutional system, where the work
of the courts is of such significance. Discrimination against the Negro
could not have as great an effect without the condonation of the legal order.
The consent of the courts has been necessary for the subordinate status of
the Negro to become of more than extra-legal consequence.
That the American courts have condoned, if not encouraged, discrimi-
natory practices should not be a source of surprise. It is not unusual for
law courts, like other organs of government, to mirror the dominant pre-
1 'To secure these Rights' The Report of the President's Committee on Civil Rights
(1947), 9-
2 Tannenbaum, Slave and Citizen (1947), i n .
Downloaded from https://www.cambridge.org/core. Instituto de matematica Estatistica, on 22 May 2020 at 19:04:46, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.
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The Negro and the Law 223
judices of their time. Even a tribunal as far removed from political pressure
as the United States Supreme Court cannot help but be swayed by popular
sentiment. As was aptly pointed out by Lord Bryce,' The Supreme court
feels the touch of public opinion.... Of course, whenever the law is clear,
because the words of the Constitution are plain or the cases interpreting
them decisive on the point raised, the court must look solely to those words
and cases, and cannot permit any other consideration to affect its mind.
But when the terms of the Constitution admit of more than one construc-
tion, and when previous decisions have left the true construction so far
open that the point in question may be deemed new, is a court to be blamed
if it prefers the construction which the bulk of the people deem suited to
the needs of the time?' 1
In so far as the legal position of the American Negro is concerned, the
attitude of the federal Supreme Court has been of cardinal importance.
Under the American constitutional system, it has been the court that has
determined whether particular discriminatory practices have violated the
Thirteenth, Fourteenth and Fifteenth Amendments to the Federal Con-
stitution. Those amendments were adopted after the Civil War to guarantee
to the emancipated Negro a full and equal status in American society. The
Thirteenth Amendment prohibited slavery and involuntary servitude,
except as a punishment for crime. 'But that amendment having been
found inadequate to the protection of the rights of those who had been in
slavery, it was followed by the Fourteenth Amendment, which added
greatly to the dignity and glory of American citizenship, and to the security
of personal liberty, by declaring that "all persons born or naturalized in
the United States and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside", and that "no State
shall make or enforce any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall any State deprive any
person of life, liberty or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the laws".' 2 Nor,
under the Fifteenth Amendment, could the right of United States citizens
to vote be denied or abridged on account of race, colour or previous con-
dition of servitude.
These amendments, said Mr Justice Harlan, ' if enforced according to
their true intent and meaning, will protect all the civil rights that pertain
to freedom and citizenship.... Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens'.3 Yet, as interpreted by
1 Bryce, The American Commonwealth (1917 ed.), vol. 1, 274.
2 Harlan, J., dissenting, in Plessy v. Ferguson, 163 U.S. 537, 555 (1896).
3 Ibid, at 555, 559.
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224 Modern Developments
the Supreme Court, it is clear that these amendments have not till now
been adequate to place the American Negro on a footing of full legal
equality with other citizens. The gulf between the letter of the amendments
and their practical effect was well expressed by a dissenting member of
the Supreme Court, in a case where the validity of a State segregation
Statute was at issue:' We boast of the freedom enjoyed by our people above
all other peoples. But it is difficult to reconcile that boast with a state of
the law which, practically, puts the brand of servitude and degradation
upon a large class of our fellow-citizens, our equals before the law.' 1
A student of the work of the Supreme Court cannot, however, but
observe that there has been a profound change in recent years in the
attitude of that tribunal toward racial discrimination. 'Distinctions based
on color and ancestry', asserted a member of the court during the last war,
' are utterly inconsistent with our traditions and ideals. They are at variance
with the principles for which we are now waging war. We cannot close
our eyes to the fact that for centuries the Old World has been torn by
racial and religious conflicts and has suffered the worst kind of anguish
because of inequality of treatment for different groups.' 2 It is, indeed,
mostly in its positive approach to the problem of safeguarding the rights
of minority groups that the Supreme Court today differs from its pre-
decessors. The fundamental changes in the jurisprudence of the Supreme
Court during the past decade and a half,3 which were discussed in the last
chapter, have profoundly affected the attitude of the court in cases in-
volving racial discrimination. The approach of the present court in such
cases was well stated by Mr Justice Black in 1944. 'It should be noted, to
begin with, that all legal restrictions which curtail the civil rights of a
single group are immediately suspect. That is not to say that all such re-
strictions are unconstitutional. It is to say that courts must subject them
to the most rigid scrutiny. Pressing public necessity may sometimes
justify the existences of such restrictions; racial antagonism never can.' 4
The change in attitude of the Supreme Court toward the problem of
racial discrimination has been reflected in an improvement of the legal
position of the American Negro. That such improvement has in fact
occurred will be seen from the remainder of this chapter, which will be
devoted to a discussion of the present legal position, derived from recent
Supreme Court decisions, with regard to three of the most important
manifestations of discrimination against the Negro, i.e. restrictions upon
1 163 U.S. at 562.

2 Murphy, J., concurring, in Hirabayashi v. United States, 320 U.S. 81, n o (1943).
3 See Friedmann, Book Review, 64 L.Q.R. (1948), 545, 547.
4 Korematsu v. United States, 323 U.S. 214, 216 (1944).
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the right to vote, restrictions upon the use of land, and enforced
segregation.
That legally condoned discrimination against the Negro exists in the
United States is evident to most observers. What is, perhaps, not so
apparent even to the informed British observer is the extent to which the
legal position has been improving in recent years. It may be that one
should not overemphasize the immediate practical consequences of
Supreme Court decisions in a field such as this. At the same time, one
should beware of minimizing their effect, especially from the prospective
point of view. One of the things which has made anti-Negro discrimina-
tion in the United States of such moment is the fact that it has been sanc-
tioned by the law. With the legal prop removed, the discrimination itself
can more easily be eliminated.
SUFFRAGE
1
Ever since Ashby v. White, it has been assumed that the right to vote is one
of the primary attributes of citizenship. 'The right of voting...', asserted
Lord ChiefJustice Holt in that case, 'is a thing of the highest importance,
and so great a privilege that it is a great injury to deprive the plaintiff of it.
. . . It is denying him his English right, and if this action be not allowed, a
man may be for ever deprived of it. It is a great privilege to choose such
persons, as are to bind a man's life and property by the laws they make.' 2
As far as the American Negro is concerned, the suffrage question has
been a key one, for, as a disfranchised minority, the Negro would have
little hope of exerting political pressure to bring about an end to dis-
criminatory practices. It was in recognition of the importance of the vote
to the emancipated Negro that the Fifteenth Amendment to the Federal
Constitution was adopted after the Civil War, prohibiting interferences
with the right of United States citizens to vote because of their race, colour
or previous condition of servitude. The constitutional amendment has not,
however, of itself, automatically given the Negro the ballot.' The Southern
white people have always viewed the Fifteenth Amendment in much the
same way in which patriotic Germans after the [First World War] regarded
the harsher provisions of the Versailles Treaty. It was a form of compul-
sion imposed by victors upon the defeated.'3 Accordingly, they have
resorted to many devices to defeat the intent of the amendment. The
Southern attitude is well illustrated in a remark made to Lord Bryce by a
1 (1703), 2 Ld. Raym. 938.
2 Ibid, at 953, 958.
3 Cushman, "The Texas "white primary" case', 30 Cornell L.Q. (1944), 66.
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leading Southern politician in 1881: "We like the Negro, and we treat him
well. We mean to continue doing so. But we vote him.'*
It seems clear that the Fifteenth Amendment automatically put an end
to all State constitutional and statutory provisions expressly limiting the
franchise at general elections to persons of the white race. 'Beyond
question', declared the Supreme Court in 1880, 'the adoption of the
Fifteenth Amendment had the effect, in law, to remove from the State
Constitution, or render inoperative, that provision which restricts the
right of suffrage to the white race.' 2 But the Southern States have sought
to use methods other than those of such express constitutional or statutory
discrimination to disfranchise the Negro. A typical case is Guinn v. United
States? where the validity of the so-called 'grandfather clause' of the
Oklahoma Constitution was at issue. That portion of the State's organic law
provided that anyone who could vote on 1 January 1866, or a descendant
of such person, would be able to qualify as a permanent voter without sub-
mitting to certain educational tests. Since the date specified was at a time
when the Negro could not legally vote, the effect of the provision was
clearly to discriminate against the Negro. It was because of this that it was
held invalid by the federal Supreme Court. 'It is true', said the court, 'it
contains no express words of an exclusion from the standard which it estab-
lishes of any person on account of race, color, or previous condition of
servitude prohibited by the Fifteenth Amendment, but the standard itself
inherently brings that result into existence since it is based purely upon a
period of time before the enactment of the Fifteenth Amendment and makes
that period the controlling and dominant test of the right of suffrage.'4 As
explained by Mr Justice Frankfurter in a more recent decision, in so far as
voting in a general election is concerned the' Amendment nullifies sophisti-
cated as well as simple-minded modes of discrimination. It hits onerous
procedural requirements which effectively handicap exercise of the fran-
chise by the colored race although the abstract right to vote may remain
unrestricted as to race.' 5
The prohibition of discrimination in voting in general elections has not,
however, of itself, been enough to ensure the effective participation of the
American Negro in the electoral process. As Lord Bryce pointed out, in
discussing American elections, 'There are two stages in an election cam-
paign. The first is to nominate the candidates you desire; the second to
carry them at the polls. The first of these is often the more important,
1 Bryce, The American Commonwealth (1889 ed.), vol. 2, 279.

2 Neal v. Delaware, 103 U.S. 370, 389 (1880).
3 238 U.S. 347 (1915)- 4 Ibid, at 364.
5 Lane v. Wilson, 307 U.S. 268, 275 (1939).
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because in many [areas] the party majority inclines so decidedly one w a y . . . ,
that nomination is in the case of the dominant party equivalent to election.' *
The best example of an area such as that referred to is the American South,
which in the main has been a solid supporter of the Democratic party. In
the South, for all practical purposes, to bar the Negro from participation
in the nomination of Democratic candidates is effectively to preclude his
participation in the electoral process.
Since the time when Lord Bryce wrote his study of American govern-
ment, the so-called primary election has become the general method
employed by political parties in the United States to nominate candidates
for office. The primary election is held before the holding of a general
election to enable the voters who are registered as members of a particular
party to choose the candidates of that party whose names are to find a place
on the ballot at the general election. A primary is thus a 'nominating' as
distinguished from an 'electing' election.2
In recent years, efforts aimed at disfranchising the Southern Negro have
made use of the so-called 'white primary', by which participation in the
primary election of the Democratic party is limited to white citizens. Since
the Democratic primary has been the only election of real significance in
the Southern States, the device of the white primary has resulted in effec-
tive exclusion of the Negro from the process of government in those States.
As expressed by the Federal Supreme Court, with regard to a primary
election for a congressman in Louisiana, 'Interference with the right to
vote in the Congressional primary in the Second Congressional District
for the choice of Democratic candidate for Congress is thus, as a matter of
law and in fact, an interference with the effective choice of the voters at the
only stage of the election procedure when their choice is of significance,
since it is at the only stage when such interference could have any practical
effect on the ultimate result, the choice of the Congressman to represent
the district.'3
Does discrimination against the Negro in primary elections come within
the prohibition of the Fifteenth Amendment? The answer to this question
depends upon whether State action is involved in such discrimination, for
it is only such State action which is affected by the Fifteenth Amendment
and that portion of the Fourteenth Amendment which guarantees to all
persons the 'equal protection of the laws'.
In Nixon v. Herndon,^ the court dealt with a Texas statute which pro-
vided that 'in no event shall a Negro be eligible to participate in a Demo-
1 Bryce, op. cit. 105.
2 Strecker v. Smith, 164 P. 2d 192, 193 (Idaho 1945).
3 United States v. Classic, 313 U.S. 299, 314 (1941). 4 273 U.S. 536 (1927).
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cratic party primary election held in the State'. The discrimination against
the Negro in this case was clearly caused by the action of the State legisla-
ture, and the statute was consequently held to violate the constitutional
prohibition. 'The statute of Texas', reads the court's opinion, 'in the teeth
of the prohibitions referred to assumes to forbid negroes to take part in
a primary election the importance of which we have indicated, dis-
criminating against them by the distinction of color alone.' J
Nothing daunted, the Texas legislature enacted a new statute which
gave the State executive committee of a political party the power to pre-
scribe the qualification of its members for voting or other participation.
The State executive committee of the Democratic party then adopted a
resolution that white Democrats and no others might participate in the
primaries of that party. The Supreme Court held that this, too, transgressed
the constitutional command, for whatever power of exclusion had been ex-
ercised by the members of the Democratic executive committee had come
to them, 'not as the delegates of the party, but as the delegates of the State'.2
The decision in this case was based upon the theory that the Texas
statute vested in the executive committee an authority independent of the
will of the party as a whole, and that, therefore, its discriminatory acts
amounted to State action within the constitutional prohibition. Three
weeks after the decision of the court, a State convention of the Democratic
party in Texas adopted a resolution to the effect that in the future only
white citizens might vote in the party primaries. A Negro who had been
refused a ballot in the Democratic primary brought an action for damages,
and the case having been carried to the Supreme Court, that tribunal held
in Grouey v. Townsend^ that the convention resolution was not State action
within the meaning of the Fourteenth and Fifteenth Amendments but was
only the action of the political party in exercising its inherent right to
determine its own policies and membership. The court thus held that the
Democratic party was in a position similar to that of any ordinary volun-
tary association, with power to determine the qualifications of its own
membership 'and that qualifications thus established are as far aloof from
the impact of constitutional restraint as those for membership in a golf
club or for admission to a Masonic lodge' .4 Here the matter seemed to rest,
and the Southern States appeared to have found a legally condoned method
of precluding the Negro from effectively exercising his right to vote.
Yet it soon became clear that the constitutional guarantee of suffrage
was an empty form if it did not extend to participation in primary elections.
i 273 U.S. at 541. 2 Nixon v. Condon, 286 U.S. 73, 85 (1932).
3 295 U.S. 45 (1935)-
4 Cardozo, J., in Nixon v. Condon, 286 U.S. 73, 83 (1932).
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'There is not the slightest doubt that the purpose of the "white primary"
rule was to disfranchise the Negro.... There was something strangely
anomalous and unrealistic about a result which, in spite of the Fourteenth
and Fifteenth Amendments, left the one agency in the State of Texas which
completely dominates the choice of State and federal officials just as free to
bar Negroes from participation in that choice as though it were a Greek
letter fraternity or an association of private business men.' 1
The Federal Supreme Court itself recognized this in 1944, when it over-
ruled Grovey v. Townsend in Smith v. Allwright,2 which arose on similar facts.
The court said in the Smith Case that, while the privilege of membership
in a political party may be no concern of the State in certain circumstances,
when that privilege is made a necessary qualification for voting in a primary
to select candidates for a general election, the State makes the action of the
party the action of the State. 'The United States', stated Mr Justice Reed,
'is a constitutional democracy. Its organic law grants to all citizens a right
to participate in the choice of elected officials without restriction by any
State because of race. This grant to the people of the opportunity for choice
is not to be nullified by a State through casting its electoral process in a
form which permits a private organization to practice racial discrimination
in the election. Constitutional rights would be of little value if they could
be thus indirectly denied.'3 The Supreme Court has thus come over to the
view that a primary election is a vital part of the machinery of government.
'It may now be taken as a postulate that the right to vote in such a primary
for the nomination of candidates without discrimination by the State, like
the right to vote in a general election, is a right secured by the Constitution.'4
Smith v. Allwright did not, of itself, definitively put an end to attempts
on the part of the Southern States to disfranchise the Negro. But it seems
clear that, ever since the Supreme Court in that case decided that the action
of a State convention of the Democratic party in excluding Negroes from
the primary election was State action within the constitutional prohibition
against discrimination, the handwriting has been on the wall. The present
situation in the American South has been described as follows: 'A few
States continue to tinker with their primary systems with the forlorn hope
of producing a sophisticated rather than simple-minded mode of discri-
mination; 5 others are relying on new forms of registration;6 and an
1 Cushman, he. tit. 67, 71. 2 321 U.S. 649 (1944).

3 Ibid, at 664. 4 Ibid, at 661.
5 That their hope is, indeed, a 'forlorn' one is shown by Terry v. Adams, 345 U.S.
461 (1953); Perry v. Cyphers, 186 F. 2d 608 (6th Cir. 1951); Baskin v. Brown, 174 F.
2d 391 (4th Cir. 1949); and Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947).
6 See Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), affirmed 336 U.S. 933
(1949).
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increasing number, recognizing the essentials of democracy, are doing all in
their power to follow the rules of the game.' x This does not mean that the
full franchise for the Negro has become a complete practical reality through-
out the South. In the past, as 'legal devices for disfranchising the Negro
have been held unconstitutional, new methods have been improvised to
take their places. Intimidation and the threat of intimidation have always
loomed behind these legal devices to make sure that the desired result is
achieved.'2 Attempts at continuing disfranchisement are, as has been in-
dicated, still being made. But Smith v. Allwright has at least forced abandon-
ment of group disfranchisement of the Negro through the 'white primary'
and has opened the door to gradual improvement of the political status of
the Southern Negro by ensuring that attempts at disfranchisement will no
longer be legally condoned.
RESTRICTIVE COVENANTS
The doctrine laid down by Lord Cottenham in Tulk v. Moxhay^ has in

America been employed as a means of restricting the use of real property by
the Negro. 'That this court has jurisdiction to enforce a contract between
the owner of land and his neighbour purchasing a part of it, that the latter
shall either use or abstain from using the land purchased in a particular way,
is what I never knew disputed', asserted the Lord Chancellor in the Tulk
Case.4 And he went on to hold that such covenant between vendor and
purchaser, on the sale of land, that the purchaser and his assigns should use
or abstain from using the land in a particular way, would be enforced in
equity against all subsequent purchasers with notice, independently of the
question whether it was one which ran with the land so as to be binding
upon subsequent purchasers at law. ' That the question does not depend
upon whether the covenant runs with the land is evident from this, that if
there was a mere agreement and no covenant, this court would enforce it
against a party purchasing with notice of it; for if an equity is attached to
the property by the owner, no one purchasing with notice of that equity
can stand in a different situation from the party from whom he purchased.'5
Under Lord Cottenham's doctrine, a court exercising equitable powers
will enforce a restriction upon the use of land contained in a contract of
sale both against the original covenantor and any subsequent holder of the
land taking with notice of the restriction. There is nothing in the doctrine
to prevent its employment as a means of restricting the use of real property
1 Bischoff, 'Civil rights', Annual Survey of American Law (1949), 148.

2 Report of the President's Committee on Civil Rights, 35.
3 (1848), 2 Ph. 774.
4 Ibid, at 777. 5 Ibid, at 778.
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to members of a specific race, and, in the United States, restrictive cove-
nants which have as their purpose the exclusion of persons of the Negro
race from the occupancy of real property have been widely used.
Attempts at restricting the use of land have, indeed, gone even further
in the Southern States. Thus, in Buchanan v. Warley,1 there was in issue the
provisions of a municipal ordinance which denied to coloured persons the
right to occupy houses in blocks in which the greater number of houses
were occupied by white persons, and imposed similar restrictions on white
persons with respect to blocks in which the greater number of houses were
occupied by coloured persons. This type of direct restriction by State
authorities—which amounted to governmentally enforced segregation of
the races—was struck down by the Federal Supreme Court as violating
the equal protection clause of the Fourteenth Amendment.' The Fourteenth
Amendment and these statutes enacted in furtherance of its purpose operate
to qualify and entitle a colored man to acquire property without state
legislation discriminating against him solely because of color.' J
But this did not dispose of the question of the use of restrictive covenants,
which under the doctrine of Tulk v. Moxhay create an equity in the land in
favour of the covenantee and his successors which will be enforced by the
courts against the covenantor and his successors. For, as the Supreme
Court has stated, 'the principle has become firmly embedded in our con-
stitutional law that the action inhibited by the first section of the Fourteenth
Amendment is only such action as may fairly be said to be that of the
States. That Amendment erects no shield against merely private conduct,
however discriminatory or wrongful.' 3
If restrictions against the use of real property by Negroes could be con-
sidered as involving merely the action of the individuals concerned, the
constitutional prohibition would not be violated. This was the approach
of the Supreme Court in Corrigan v. Buckley* which was decided in 1926.
The constitutional prohibitions, said the court there, 'have reference to
State action exclusively, and not to any action of private individuals....
It is State action of a particular character that is prohibited. Individual
invasion of individual rights is not the subject-matter of the Amendment.
. . . It is obvious that none of these Amendments prohibited private indi-
viduals from entering into contracts respecting the control and disposition
of their own property.' 5
There is, however, an obvious weakness in the Supreme Court's holding
that such restrictions upon the use of land involve merely individual, not
1 245 U.S. 60 (1917). 2 Ibid, at 79.
3 Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
4 271 U.S. 323 (1926). 5 Ibid, at 330.
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State, action. It is true that the restrictive covenants themselves come into
being through the voluntary action of private individuals. Yet they derive
their force and effect primarily through the application of the doctrine of
Tulk v. Moxhay, and that doctrine is applied and enforced by organs of the
State—by the courts. The sanction behind restrictive covenants is the
possibility of legal or injunctive relief if they are violated. The holding of
the court in Corrigan v. Buckley ignores the fact that such covenants are
enforced through State action.
This was seen by the American Supreme Court itself, in 1948, in Shelley
v. Kraemer,1 where the court held that the Fourteenth Amendment forbids
the enforcement by State courts of restrictive covenants which have as
their purpose the exclusion of persons of designated race or colour from
the ownership or occupancy of real property. The petitioners there, who
were Negroes, had acquired property in a tract subject to a covenant
restricting use or occupancy to persons of the Caucasian race, and respon-
dents, as owners of property subject to the terms of the restrictive agree-
ments, brought suit for injunctive relief in the appropriate State courts.
The opinion of the court in the Shelley Case differs from that which had
been rendered in Corrigan v. Buckley, in the court's recognition that these
cases involve more than the action of merely private individuals. The
action of a State court of equity in enforcing a restrictive covenant, said
Mr Chief Justice Vinson, is clearly to be regarded as action of the State
within the meaning of the Fourteenth Amendment. 'It has been the con-
sistent ruling of this court that the action of the States to which the Amend-
ment has reference includes action of state courts and state judicial
officials.'2 Under Buchanan v. Warley, which has been discussed above,
restrictions of the sort involved here' could not be squared with the require-
ments of the Fourteenth Amendment if imposed by state statute or local
ordinance.'3 Since enforcement by the courts is treated as State action in
the same sense in which a statute is,' We hold that in granting judicial en-
forcement of the restrictive agreements in these cases, the States have
denied petitioners the equal protection of the laws and that, therefore, the
action of the state courts cannot stand'.4
Shelley v. Kraemer has dealt a death blow to the application of the doc-
trine of Tulk v. Moxhay by American courts in cases involving racial re-
strictive covenants. It is true that Chief Justice Vinson was careful not to
rule upon the validity of the restrictive covenants themselves. The
American court did not go as far as did the Ontario High Court in holding
such covenants void as against public policy. 'If the common law of
1 334. U.S. 1 (1948). 2 Ibid, at 18.
3 Ibid, at 11. 4 Ibid, at 20.
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treason encompasses the stirring up of hatred between different classes of
His Majesty's subjects', asserted Mackay, J., speaking for that court, 'the
common law of public policy is surely adequate to void the restrictive
covenant which is here attacked.'' ChiefJustice Vinson, on the contrary,
implied that the covenants themselves were not invalid. ' So long as the
purposes of those agreements are effectuated by voluntary adherence to
their terms, it would appear clear that there has been no action by the State
and the provisions of the Amendment have not been violated.'2
But, in denying the possibility of judicial enforcement, the court has
surely removed the 'teeth' from such restrictive covenants and has taken
a most important step toward a breakdown of racial restrictions upon the
use of property. At least in so far as the use of land is concerned, Shelley v.
Kraemer indicates that equal protection of the laws will be more than a
mere slogan for the American Negro.
Today, indeed, there is more even than the constitutional guaranty
which is violated by the enforcement of restrictive covenants. Such en-
forcement would seem to be an obstacle to the free accomplishment of
American policy in the international field. For, as a member of the
Supreme Court has expressed it, 'we have recently pledged ourselves to
co-operate with the United Nations to "promote.. .universal respect for,
and observance of, human rights and fundamental freedoms for all with-
out distinction as to race, sex, language, or religion". How can this nation
be faithful to this international pledge if [covenants] which bar land owner-
ship and occupancy... on account of race are permitted to be enforced ?' 3
SEGREGATION
'Legally enforced segregation has been followed throughout the South
since the close of the Reconstruction era. In these States it is generally illegal
for Negroes to attend the same schools as whites; attend theatres patronized
by whites; visit parks where whites relax; eat, sleep or meet in hotels,
restaurants or public halls frequented by whites. This is only a partial
enumeration—legally imposed separation of races has become highly
refined. In the eyes of the law, it is also an offence for whites to attend
"Negro " schools and similar places. The result has been the familiar system
1 Re Drummond Wren, [1945] 4 D.L.R. 674, 679. But compare Re Noble and
Wolfe, [1948] 4D.L.R. 123, 139.
2 334 U.S. at 13. Under the more recent case of Barrows v. Jackson, 346 U.S. 249
(!953). a court may not award damages for breach of a racial restrictive covenant,
such judicial action also being treated as State action forbidden by the Fourteenth
Amendment.
3 Black, J., concurring, in Oyama v. California, 332 U.S. 633, 649 (1948).
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of racial segregation in both public and private institutions which cuts
across the daily lives of Southern citizens from the cradle to the grave.' I
Perhaps the best-known examples of laws providing for such segrega-
tion have been the so-called 'Jim Crow' laws, which have made it un-
lawful for any common carrier to transport white and coloured passengers
in the same vehicle or the same portion thereof. The result of these laws
has been the enforced separation of the races in public conveyances which
has become prevalent in the Southern States.
The Fourteenth Amendment to the United States Constitution, as we
have seen, forbids a State to deny to any person within its jurisdiction 'the
equal protection of the laws'. How can these 'Jim Crow' laws be con-
sidered consistent with the constitutional guaranty of equality of legal
status ?
Before 1954, the American Supreme Court answered this question by
asserting that segregation, as such, was not discriminatory. The leading
case was Plessy v. Ferguson,2 where it was claimed that a Louisiana statute
requiring separate railroad accommodations for Negro and white pas-
sengers denied equal protection of the laws. Mr Justice Brown, speaking
for the court, in upholding the Act, rejected 'the assumption that the en-
forced separation of the two races stamps the colored race with a badge of
inferiority. If this be so, it is not by reason of anything found in the act,
but solely because the colored race chooses to put that construction upon
it.' 3 Or, to express it another way, 'Laws permitting, and even requiring,
their separation in places where they are liable to be brought into contact
do not necessarily imply the inferiority of either race to the other'. 4 So
long as laws requiring segregation did not establish unequal facilities for
the Negro, the court's doctrine held, there was no unreasonable discrimina-
tion and therefore no denial of equal protection under the law.
There was a vigorous dissent by Mr Justice Harlan, which has been
characterized as 'one of the most vigorous and forthright dissenting
opinions in Supreme Court history'.5 In his opinion, he attacked the very
basis of the court's decision, i.e. that segregation alone was not discrimina-
tory. 'It was said in argument that the statute of Louisiana does not dis-
criminate against either race, but prescribes a rule applicable alike to white
and colored citizens. But this argument does not meet the difficulty.
Everyone knows that the statute in question had its origin in the purpose,
not so much to exclude white persons from railroad cars occupied by

2 163 U.S. 537 (1896).
3 Ibid, at 551. 4 Ibid, at 544.
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blacks, as to exclude colored people from coaches occupied by, or assigned
to, white persons.... The arbitrary separation of citizens, on the basis of
race, while they are on the public highway, is a badge of servitude, wholly
inconsistent with the civil freedom and the equality before the law estab-
lished by the Constitution.... The thin disguise of "equal" accommoda-
tions for passengers in railroad coaches will not mislead anyone, nor atone
for the wrong this day done.''
To the present-day observer, who has, of course, the advantages of
half a century of retrospect, it would seem that the merits of the case are
all with Justice Harlan's dissent. Segregation, such as was legally condoned
by the Supreme Court in the Plessy Case, has been the cornerstone of the
structure of discrimination against the American Negro. 2 And the court's
assertion that segregation of itself does not mean discrimination appears
manifestly unsound. ' The core of Mr Justice Brown's argument is in his
assumption that segregation is not a white judgment of colored inferiority.
This would be so palpably preposterous as a statement of fact that we must
assume Mr Justice Brown intended it as a legal fiction. The device of
holding a despised people separate, whether by confinement of the Jew to
the ghetto; by exclusion of the lowest caste in India from the temple; or by
the slightly more refined separate [accommodations], is clearly expression
of a judgment of inferiority.'3
From 1896, when it was first enunciated, to 1954, the doctrine of Plessy
v. Ferguson was consistently adhered to by the highest American court.
The fact that the federal Supreme Court did not during that period go so
far as to overrule the Plessy decision did not, however, mean that it was
not able to take important steps toward improving the legal position of
the Negro within the limits of that case. It will be recalled that, in Plessy
v. Ferguson, the court held that segregation of the races did not violate any
constitutional prohibition where the laws requiring segregation did not
establish unequal facilities. But implicit in this holding was the rule that
legally enforced segregation was valid only if the separate facilities pro-
vided for the Negro were substantially equal to those provided for mem-
bers of the white race. In actual practice, the American Negro has received
far from equal treatment so far as the separate facilities provided for him
have been concerned. Strict enforcement of the requirement of equality in
facilities could consequently make for a substantial improvement in the
status of the Negro even if segregation as such were still constitutionally
condoned.
1 163 U.S. at 556, 562. 2 Report of the President's Committee on Civil Rights, 81.
3 'Segregation and the equal protection clause', 34 Minnesota L. Rev. (1950),
289, 305-
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The American Supreme Court in recent years has placed ever-increasing
emphasis upon judicial implementation of the requirement of equality in
facilities. Its decisions have been aimed at ensuring that the separate
facilities provided for Negroes have in fact been substantially equal to those
afforded to the white race. Perhaps the best cases to illustrate this are those
dealing with educational opportunities, where the inferior position of the
Negro in the past has been clearly manifest. The status of the Negro with
regard to education—especially in the field of higher education—has been
of cardinal significance. This has been recognized by the Supreme Court in
cases involving claims of inequality in educational facilities. ' Our society
grows increasingly complex,' stated the court in 1950, 'and our need for
trained leaders increases correspondingly. Appellant's case represents,
perhaps, the epitome of that need, for he is attempting to obtain an
advanced degree in education, to become, by definition, a leader and
trainer of others. Those who will come under his guidance and influence
must be directly affected by the education he receives. Their own educa-
tion and development will necessarily suffer to the extent that his training
is unequal to that of his classmates.'1
Nor has the Supreme Court, in dealing with assertions of inequality in
educational facilities, been bound by formal attempts to comply with the
requirement of equality. In a case decided in 1948, the court had held that
Negro applicants for a course in legal education must be admitted to the
law schools which had heretofore been reserved to the white race unless
equivalent facilities were provided for them.* In the State of Texas, a
separate law school for Negroes was, indeed, opened. A first-rate law
school cannot, however, come into being full-grown, like Minerva from
the head of Jove. The facilities afforded by the newly opened law school
for Negroes could not, in actual fact, equal those which were available to
white students at the University of Texas.
That the Negro seeking a legal education in Texas was still in reality in
a position of inequality, despite the compliance in form with the constitu-
tional requirement, was the basis of the 1950 decision of the Supreme
Court in Sweatt v. Painter? Comparing the facilities offered by the new
law school for Negroes with those available to white students at the
University of Texas, Chief Justice Vinson asserted that 'we cannot find
substantial equality in the educational opportunities offered white and
Negro law students by the State. In terms of number of the faculty,
variety of courses and opportunity for specialization, size of the student
1 McLaurin v. Oklahoma State Regents, 339 U.S. 637, 641 (1950).

2 Sipuel v. Board of Regents, 332 U.S. 631 (1948).
3 339 U.S. 629 (1950).
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body, scope of the library, availability of law review and similar activities,
the University of Texas Law School is superior. What is more important,
the University of Texas Law School possesses to a far greater degree those
qualities which are incapable of objective measurement but which make
for greatness in a law school. Such qualities, to name but a few, include
reputation of the faculty, experience of the administration, position and
influence of the alumni, standing in the community, traditions and prestige.
It is difficult to believe that one who had a free choice between these law
schools would consider the question close.'1 Under these circumstances,
petitioner in the Sweatt Case had been denied a legal education equivalent
to that offered to students of other races. 'We hold that the Equal Protec-
tion Clause of the Fourteenth Amendment requires that petitioner be
admitted to the University of Texas Law School.'2
In the Sweatt Case, the Supreme Court was able to hold for petitioner
without reaching his 'contention that Plessy v. Ferguson should be re-
examined in the light of contemporary knowledge respecting the purposes
of the Fourteenth Amendment and the effects of racial segregation'.3 The
court's decision did, however, come very close to holding that segregation
as such, at least in the field of higher education, was contrary to the Con-
stitution. In view of the court's reasoning, it is difficult to see how, in that
field, segregated facilities for the Negro can ever come up to the demands
of equality. What was said in the Sweatt Case of the University of Texas
Law School applies with equal force to all long-established white educa-
tional institutions. Though the doctrine of Plessy v. Ferguson* has per-
mitted segregation, provided the requirement of equality in facilities was
met, the court's approach in Sweatt v. Painter means, in practice, that that
requirement can never be met in the field of higher education.
But what is true of segregation in higher education is, in reality, also
true of segregation as such. There can never be real equality in separated
facilities, for the mere fact of segregation makes for discrimination. The
arbitrary separation of the Negro, solely on the basis of race, is a 'badge of
servitude'5 and must generate in him a feeling of inferior social status,
regardless of the formal equality of the facilities provided for him.
That the American Supreme Court itself has come to realize that segre-
gation as such is discriminatory and hence a denial of the equal protection
of the laws demanded by the Constitution is shown by its 1954 decision in
Brown v. Board of Education.6 Petitioners there, minors of the Negro race,
1 Ibid, at 633. 2 Ibid, at 636.

3 Ibid. 4 Supra, p. 234.
5 The term used by Harlan, J., dissenting, in Plessy v. Ferguson, 163 U.S. at 562.
6 347 U.S. 483 (1954)-
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through their legal representatives, sought the aid of the federal courts in
obtaining admission to the public schoolsr of their community on a non-
segregated basis. They had been denied admission to schools attended by
white children under laws requiring segregation according to race. What
made this case of such importance was the fact that the lower courts had
found expressly that the Negro and white schools involved were equalized,
or were being equalized, with respect to buildings, curricula, qualifications
and salaries of teachers, and other 'tangible' factors. Because of these
findings, the lower courts had denied relief on the doctrine of Plessy v.
Ferguson. ' Under that doctrine, equality of treatment is accorded when
the races are provided substantially equal facilities even though these
facilities be separate.'2 In the Supreme Court, petitioners argued that, even
if the findings below were correct, they should be given judgment, con-
tending that '"segregated" public schools are not "equal" and cannot be
made "equal" and that, hence, they are deprived of the equal protection
of the laws'. 3 Petitioners' argument was based upon the claim that segrega-
tion as such was inherently discriminatory and consequently contrary to
the constitutional command of equality. In effect, they were asking the
court to overrule Plessy v. Ferguson, which, as we have seen, had held the
other way.
Few cases decided by it have been more carefully considered by the
highest American court than Brown v. Board of Education. The case was
first argued before the court in December 1952. Desiring further clarifica-
tion before reaching a decision, the court ordered rearguments in 1953,
and the case was argued for the second time in December of that year. It
was not until May 1954, almost two years after the case first came to it, that
the Supreme Bench announced its decision.
For a unanimous court, Mr Chief Justice Warren proclaimed that the
segregation of petitioners violated the constitutional guaranty of equality.
'Does segregation of children in public schools solely on the basis of race,
even though the physical facilities and other "tangible" factors may be
equal, deprive the children of the minority group of equal educational
opportunities ? We believe that it does.' 4 The mere fact of segregation,
according to the opinion, discriminates against petitioners. 'To separate
them from others of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in the community
that may affect their hearts and minds in a way unlikely ever to be undone.''
1 It should be borne in mind that, in the United States, the term 'public schools'
is used to designate the free elementary and secondary schools maintained by local
governmental authorities.
2 Brown v. Board of Education, 347 U.S. at 488.
3 Ibid. 4 Ibid, at 493. 5 Ibid, at 494.
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The finding of the court that segregation as such is discriminatory is, as
its opinion recognizes, contrary to Plessy v. Ferguson.' Whatever may have
been the extent of psychological knowledge at the time of Plessy v.
Ferguson, this finding is amply supported by modern authority. Any
language in Plessy v. Ferguson contrary to this finding is rejected.'1 The
doctrine of the Plessy Case, under which separate but equal facilities were
held valid, was thus overruled. ' W e conclude that in the field of public
education the doctrine of "separate but equal" has no place. Separate
educational facilities are inherently unequal.' J
It is true that the decision in the Brown Case applies directly only to cases
involving public education. It is, however, difficult to see why it should
be limited to that field. On the contrary, the court's reasoning and its
unequivocal rejection of the doctrine of Plessy v. Ferguson should directly
apply to all forms of segregation. If that is true, Brown v. Board of Educa-
tion is indeed a landmark decision. It will mean the end of legally enforced
segregation in the United States—an institution which, more than any-
thing else, has prevented the American Negro from attaining a status of
full equality.
It can, of course, be asserted that decisions such as that in Brown v.
Board of Education are in reality of little practical effect, for they do not
reach the heart of the problem, the feelings of racial prejudice which still
exist in the Southern American States. 'It may be argued that appellant
will be in no better position when these restrictions are removed, for he
may still be set apart by his fellow students.'3 Yet, though the removal of
the legal condonation of segregation will not necessarily abate individual
and group predilections and prejudices, it cannot be denied that there is a
vast difference between restrictions imposed by the State which prohibit
the commingling of Negroes and members of the white race and the
refusal of individuals to commingle where the State presents no bar.4 It
has been the fact that segregation has had behind it the force of the law
that has made it of such moment to the American Negro. It is because it
eliminates the legal sanction that the decision of the Supreme Court in the
Brown Case is so important. Without the support of the law, segregation
itself can hardly continue to be of such widespread consequence in the
United States.
1 Ibid. . 2 Ibid, at 495.
3 McLaurin v. Oklahoma State Regents, 339 U.S. 637, 641 (1950).
4 Paraphrasing ibid.
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222

THE NEGRO AND THE LAW

1 163 U.S. at 562.

1 Bryce, The American Commonwealth (1889 ed.), vol. 2, 279.

1 Cushman, he. tit. 67, 71. 2 321 U.S. 649 (1944).

The doctrine laid down by Lord Cottenham in Tulk v. Moxhay^ has in

1 Bischoff, 'Civil rights', Annual Survey of American Law (1949), 148.

1 Report of the President's Committee on Civil Rights, 79.

1 McLaurin v. Oklahoma State Regents, 339 U.S. 637, 641 (1950).

1 Ibid, at 633. 2 Ibid, at 636.

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