Buchanan v. Warley eText - Primary Source

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The Supreme Court's decision in Buchanan v. Warley was a minor step in housing rights for African Americans. GETTY IMAGES. REPRODUCED BY PERMISSION. The Supreme Court's decision in Buchanan v. Warley was a minor step in housing rights for African Americans. GETTY IMAGES. REPRODUCED BY PERMISSION. Published by Gale Cengage GETTY IMAGES. REPRODUCED BY PERMISSION.

Supreme Court decision

By: William R. Day

Date: November 5, 1917

Source: Day, William R. Buchanan v. Warley, 245 U.S. 60 (1917). Available online at http://caselaw.lp.findlaw.com/us/245/60.html; website home page: http://caselaw.lp.findlaw.com (accessed January 23, 2003).

About the Author: William R. Day (1849–1923), born in Ravenna, Ohio, served briefly (and unwillingly) as U.S. attorney general in 1898. In 1899, he was appointed to the U.S. Court of Appeals for the Sixth Circuit. In 1903, President Theodore Roosevelt (served 1901–1909) appointed him to the Supreme Court, where he served as an associate justice until his resignation in 1922.


After the Civil War, much of the South failed to extend civil rights to freed slaves. Most southern governments enacted "Black Codes" to maintain African Americans' status as second-class citizens. After a brief period of relief in the 1870s, many southern states again adopted discriminatory laws in the 1880s and 1890s. The U.S. Supreme Court sanctioned these laws in the landmark case Plessy v. Ferguson (1896), which upheld "separate but equal" railroad cars in Louisiana. The South followed this up with separate facilities of many types, but they were never equal. In particular, many cities forced segregation in housing with municipal ordinances that prohibited African Americans from moving into white neighborhoods. Louisville, Kentucky, was no exception, and it was this segregation that was challenged in Buchanan v. Warley.

African Americans organized to protest this segregation and to protect themselves. One of the leading organizations was the National Association for the Advancement of Colored People (NAACP), founded in 1909 by W.E.B. Du Bois and others after a race riot in Springfield, Illinois, the hometown of Abraham Lincoln. The NAACP filed lawsuits in the federal courts to challenge discrimination. One of its first victories was in Guinn v. U.S., which challenged Oklahoma's "grandfather clause" granting the right to vote to anyone descended from a voter qualified to vote in 1866 (the year before Reconstruction governments began to register African American voters), even if he could not pass the literacy test required of all others. However, the NAACP only filed amicus curae (friend of the court) briefs in Guinn, so Buchanan v. Warley represented the first NAACP appearance before the Supreme Court to argue a case. The Kentucky Court of Appeals had ruled that the state could use its police power to prevent intermingling of the races, arguing that if all African Americans were kept together, then the more well-educated and able among them could, in the words of the court, help "their less fortunate fellows" improve their living conditions. The NAACP's chief argument in its appeal to the Supreme Court was that the Fourteenth Amendment granted African Americans the same right to own property as whites.


The Supreme Court overturned the Kentucky Court of Appeals decision, holding that a city could not prohibit people from buying houses wherever they chose. The forces of segregation were not finished, though. Instead of cities passing municipal ordinances, property owners frequently placed restrictive covenants into their housing deeds, which stated that they would sell or lease their property only to other whites. Today, such covenants would violate the Fourteenth Amendment, but the Supreme Court in Corrigan v. Buckley (1926) ruled that these covenants, because they were made by private individuals and were not state action, were not illegal. It was not until 1948 that the Supreme Court, in Shelley v. Kraemer, ruled that restrictive covenants could not be enforced in courts of law, finally resulting in some semblance of equality. It took even longer, until the 1960s, for the federal government to pass equal housing laws and end discrimination in federal housing programs. Thus, Buchanan v. Warley was a first step toward the ending of housing discrimination.

This decision also illustrates the ways attitudes and vocabularies have changed since 1910. Note, for instance, the Court's use of the term "colored," now considered offensive. Note also that Louisville justified its housing law because it was designed to maintain "racial purity." But rather than questioning such a goal, the Supreme Court simply notes that the same city allows white households to employ African American servants and that the ordinance does not prohibit African Americans from buying land on nearby blocks. It evades the larger issue of segregation by stating that the current case does not deal with an attempt to prevent racial amalgamation. However, its acceptance of the "separate but equal" doctrine indicates that this Court still reflected the attitudes of the pre–civil rights era. The doctrine would not be overruled until 1954 in the landmark case Brown v. Board of Education of Topeka.

Primary Source: Buchanan v. Warley [excerpt]

SYNOPSIS: Justice Day establishes that property rights include the right to buy, own, and sell property. Louisville claimed that housing segregation was needed to minimize racial hostilities. However, Day emphasizes twice that peace between the races cannot be kept by depriving people of their constitutional right to property. Since the Thirteenth and Fourteenth Amendments to the Constitution guarantee property rights to all citizens, the Court overturned the Kentucky Court of Appeals and ruled in favor of Buchanan.

Mr. Justice Day delivered the opinion of the Court.

… This drastic [ordinance] is sought to be justified under the authority of the state in the exercise of the police power. It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people, which deterioration, it is contended, is sure to follow the occupancy of adjacent premises by persons of color.

The authority of the state to pass laws in the exercise of the police power, having for their object the promotion of the public health, safety and welfare is very broad as has been affirmed in numerous and recent decisions of this court. Furthermore the exercise of this power, embracing nearly all legislation of a local character is not to be interfered with by the courts where it is within the scope of legislative authority and the means adopted reasonably tend to accomplish a lawful purpose. But it is equally well established that the police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the federal Constitution; that principle has been so frequently affirmed in this court that we need not stop to cite the cases.

The Federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the states without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land.

True it is that dominion over property springing from ownership is not absolute and unqualified. The disposition and use of property may be controlled in the exercise of the police power in the interest of the public health, convenience, or welfare.…

The concrete question here is: May the occupancy, and, necessarily, the purchase and sale of

property of which occupancy is an incident, be inhibited by the states, or by one of its municipalities, solely because of the color of the proposed occupant of the premises? That one may dispose of his property, subject only to the control of lawful enactments curtailing that right in the public interest, must be conceded. The question now presented makes it pertinent to inquire into the constitutional right of the white man to sell his property to a colored man, having in view the legal status of the purchaser and occupant.…

The statute of 1866, originally passed under sanction of the Thirteenth Amendment, 14 Stat. 27, and practically re-enacted after the adoption of the Fourteenth Amendment, 16 Stat. 144, expressly provided that all citizens of the United States in any state shall have the same right to purchase property as is enjoyed by white citizens. Colored persons are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color. These enactments did not deal with the social rights of men, but with those fundamental rights in property which it was intended to secure upon the same terms [to citizens of every race and color].…

That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.

As we have seen, this court has held laws valid which separated the races on the basis of equal accommodations in public conveyances, and courts of high authority have held enactments lawful which provide for separation in the public schools of white and colored pupils where equal privileges are given. But in view of the rights secured by the Fourteenth Amendment to the federal Constitution such legislation must have its limitations, and cannot be sustained where the exercise of authority exceeds the restraints of the Constitution. We think these limitations are exceeded in laws and ordinances of the character now before us.

It is the purpose of such enactments, and, it is frankly avowed it will be their ultimate effect, to require by law, at least in residential districts, the compulsory separation of the races on account of color. Such action is said to be essential to the maintenance of the purity of the races, although it is to be noted in the ordinance under consideration that the employment of colored servants in white families is permitted, and nearby residences of colored persons not coming within the blocks, as defined in the ordinance, are not prohibited.

The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.

It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.

It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors or put to disagreeable though lawful uses with like results.

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case, the ordinance cannot stand.…

[I]t follows that the judgment of the Kentucky Court of Appeals must be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

Further Resources


Hill, Herbert, and James E. Jones. Race in America: The Struggle for Equality. Madison, Wis.: University of Wisconsin Press, 1993.

Nieman, Donald G. Black Southerners and the Law: 1865–1900. New York: Garland, 1994.


Bernstein, David E. "Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective." Vanderbilt Law Review 51, no. 4, 1998, 797–879.

Ely, James W., Jr. "Reflections on Buchanan v. Warley, Property Rights, and Race." Vanderbilt Law Review 51, no. 4, 1998, 953–75

Tushnet, Mark V. "Progressive Era Race Relations Cases in Their 'Traditional' Context." Vanderbilt Law Review 51, no. 4, 1998, 993–1003.


Kentucky Educational Television. "Kentucky Civil Rights Timeline." Living the Story: The Civil Rights Movement in Kentucky. Available online at http://www.ket.org/civilrights/timeline.htm; website home page: http://www.ket.org (accessed January 23, 2002).