McGhee v. Sipes Brief for Petitioners

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Brief Collection, LDF Court Filings. McGhee v. Sipes Brief for Petitioners, 1947. 032e9590-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4d8d6001-4e15-4c87-b6c7-6007d925ee0e/mcghee-v-sipes-brief-for-petitioners. Accessed December 04, 2025.

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TABLE OF CONTENTS

Opinion Below ______________________________________ 1
Jurisdiction ------------ 1
Summary Statement of Matter Involved------------------ 2

1. Statement of the Case —--------------------- ----- ------- 2
2. Statement of F a cts ------------------ ----- ■------------------- 2

Question Presented ------- ----- ---------------------------- ------- 4
Errors Belied U p on ------- -------------------- ----- ---------------- 4
Outline of Argument ------------------------------------------------ 5
Summary of Argument --------------------------------------- --— 7
Argument:
Preliminary Statement --------------------------------------------- 10

I— Racial Covenants Restrictive of Occupancy Have
Developed Through an Uncritical Distortion of
Doctrines Concerning Restrictions on Use of
Property ______________________________________ 11
A . Historical Development of Devices Restric

tive of the Use of Real Property------------------- 11
B. The Distinction Between Restrictions Upon

the Use of Property and Restrictions Upon
the Occupancy of Property by Members of
Unpopular Minority Groups ________________ 15

II— The Right to Use and Occupy Real Estate as a
Home is a Civil Right Guaranteed and Protected
by the Constitution and Laws of the United States 19

III—Under the Fourteenth Amendment, No State May
Deny This Civil Right to Any Person Solely Be
cause of His Race, Color, Religion, or National
Origin

PAGE

2 2

A. It is Well Settled That Legislation Condition
ing the Eight to Use and Occupy Property
Solely Upon the Basis of Eace, Color, Eeligion,
or National Origin Violates the Fourteenth
Amendment__________________________ _______ 22

B. Civil Eights Are Guaranteed by the Fourteenth
Amendment Against Invasion by the Judiciary 27

IV—Judicial Enforcement of the Eacial Eestrictive
Covenant Here Involved is a Denial by the State
of Michigan of the Petitioners’ Eights Under the
Fourteenth Amendment_______________ _______ 32
A. The Decree of the State Court Was Based

Solely on the Eace of Petitioners___________ : 32
B. It is the Decree of the State Court Which De

nies Petitioners the Use and Occupancy of
their Home _____________________ ________ ___ 33

C. Neither the Existence of the Eestrictive
Agreement Nor the Fact That the State’s Ac
tion Was Taken in Eeference Thereto Alters
in Any Way the State’s Eesponsibility Under
the Fourteenth Amendment for Infringing a
Civil Eight _________________________________ 36

The Fact That Neither Petitioners Nor
Their Grantors Were Parties to the Cove
nant Further Emphasizes the State’s Ee-
sponsible and Predominant Eole in the Ac
tion Taken Against Them _________________ 40

D. Petitioners’ Eight to Eelief in This Case Is
Not Affected by the Decision in Corrigan v.
Buckley ___1________________________________ 42

V—While No State-Sanctioned Discrimination Can
Be Consistent With the Fourteenth Amendment,
the Nation-Wide Destruction of Human and
Economic Values Which Eesults From Eacial
Eesidential Segregation Makes This Form of
Discrimination Peculiarly Eepugnant __________ 47

I l l
PAGE

A. Judicial Enforcement of Restrictive Cove
nants Has Created a Uniform Pattern of Un
precedented Overcrowding and Congestion in
the Housing of Negroes and an Appalling
Deterioration of Their Dwelling Conditions.
The Extension and Aggravation of Slum Con
ditions Have in Turn Resulted in a Serious
Rise in Disease, Crime, Vice, Racial Tension
and Mob Violence --------------------------- ------------
1. The Immediate Effects of the Enforcement

of Covenants Against Negroes ----------------
2. The Results of Slum Conditions in Negro

Housing _________________________________
a. The Effect of Residential Segregation

on Health ---------- ------------------- -- -------
b. Cost of Residential Segregation to the

Community as a Whole ----------------------
c. Racial Residential Segregation Causes

Segregation in All Aspects of Life and
Increases Group Tensions and Mob
Violence_______________________ _____

B. There Are No Economic Justifications for Re
strictive Covenants Against Negroes. Real
Property Is Not Destroyed or Depreciated
Solely by Reason of Negro Occupancy and
Large Segments of the Negro Population Can
Afford to Live in Areas From Which They
Are Barred Solely by Such Covenants. The
Sole Reason for the Enforcement of Cove
nants Are Racial Prejudice and the Desire on
the Part of Certain Operators to Exploit
Financially the Artificial Barriers Created by
Covenants __________________________________
1. The Effect of Negro Occupancy Upon Real

Property ________________________________
2. The Ability of Negroes to Pay for Better

Housing _________________________________

V I—Judicial Enforcement of This Restrictive Cove
nant Violates the Treaty Entered Into Between
the United States and Members of the United
Nations Under Which the Agreement Here

PAGE

Sought to Be Enforced Is V o id _________________ 84
Conclusion____________________________ 90
Appendix____________________________________________ 92

Table of Cases

American Federation of Labor v. Swing, 312 U. S.
321 _______________________________ _____________30,38

Austerberry v. Oldham, 29 Ch. D. 750 _______________ 14
Bacon v. Walker, 204 U. S. 311 ____________________ 17
Bakery Drivers Local v. Wohl, 315 U. S. 769 ________ 31
Bridges v. State of California, 314 U. S. 252______i___ 31
Brinkerhoff Faris Co. v. Hill, 281 U. S. 673__________ 28
Brown, Ellington & Shields v. Mississippi, 297 U. S.

278 __________________ 28
Buchanan v. Warley, 245 U. S. 60______ 10,17,18, 20, 21. 22,

23, 24, 25, 26, 27, 35
Cafeteria Employees Union, Local 302 v. Angelos, 320

U. S. 293__________ 31
Cantwell v. Connecticut, 310 U. S. 296______________ 29, 38
Carter v. Texas, 177 U. S. 442_______________________ 28
Crist v. Henshaw, 196 Okla. 168____________________ 17
City of Dallas v. Liberty Annex Corp., 295 S. W. 591 __ 35
City of Richmond v. Deans, 281 U. S. 704________17, 22, 25
City of Richmond v. Deans (C. C. A.—4th), 37 F. (2d)

712 ______________________________________________ 26
Civil Rights Cases, 109 U. S. 3___________ ____________ 21
Clark v. Allen, 67 Sup. Ct. 1431 (Advance Sheets) __ 86
Corrigan v. Buckley, 271 U. S. 323 _______ __ 10, 43, 45, 46
Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899

(1924)
Drummond Wren, In Re, 4 D, L. R. (1945) 674

44
90

Erie v. Tompkins, 304 U. S. 64 — ------------------------------ 32
Euclid v. Ambler Realty Co., 272 U. S. 365------------------- 17
Ex Parte Virginia, 100 U. S. 339_____________________ 27
Fisher v. St. Louis, 194 TJ. S. 361-------------------------------- 17
Gandolfo v. Hartman, 49 Fed. 181----------------------------- 89
Geoffroy v. Riggs, 133 U. S. 258-,-.--------- -------------------- - 86
Gorieb v. Fox, 274 U. S. 603—— ------------------------------- - 17
Hadacheck v. Sabastian, 239 IT. S. 394--------------------- -— 17
Harmon v. Tyler, 273 U. S. 668----------------------- 17, 22, 26, 27
Hauenstein v. Lynham, 100 U. S. 483------------------------- 86
Holden v. Hardy, 169 TJ. S. 366------ ---------------------------- 24
Home Telegraph v. Los Angeles, 227 IT. S. 278________ 36
Hurd v. Hodge, No. 290 Nov. Term 1947- _________ 52
Hysler v. Florida, 315 U. S. 411____ — ___,_______a_____ 28
Kennett v. Chambers, 55 TJ. S. 38—---- -------- ---------------- 88
Laurel Hill Cemetery v. San Francisco, 216 TJ. S. 358 — 17
Lord Grey v. Saxon, 6 Ves. 106------------------------------ — 14
Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186

P. 596 (1919)____ ___________ -_____________ ___ _ _ 16
Marsh v. Alabama, 326 IT. S. 501--- ---------------------------- 39
Martin v. Nutkin, 2 P. Wms. 266---------------------------------- 14
Mayer v. White, 65 U. S. 317________________________ 88
Mays v. Burgess, 147 F. (2d) 869 (Dist. of Columbia

1944) ....... ................. ...... -___- ______ — _______ 10
Milk Wagon Drivers Union of Chicago, Local 753 v.

Meadowmoor Dairies, Inc., 312 U. S. 287__________ 30
Moore v. Dempsey, 261 IT. S. 86______________ ___— 28
Norris v. Alabama, 294 TJ. S. 587_____________________ 28
Northwestern Laundry Co. v. .Des Moines, 239 U. S.

486 _____________________ 1_______________________ 17
Phillips v. Wearn, 226 N. C. 290 (1946)______________ 10
Pierce Oil Co. v. Hope, 248 IT. S. 498...—__________ — 17
Powell v. Alabama, 287 U. S. 45______ ___:____-_________ 28
Purvis v. Shuman, 273 111. 286, 112 N. E. 679 (1916)-. 13
Reinman v. Little Rock, 237 IT. S. 171_____________ _■___ 17
Republic Aviation Corp. v. N. L. R. B., 324 IT. S. 793__ 39

V
PAGE

Spencers’s Case, 5 Coke 16___________________________ 13
St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.

269 ______________________________________________ 17
Standard Oil Co. v. Marysville, 279 U. S. 582___ _______ 17
Strauder v. West Virginia, 100 U. S. 303____________ 20
The Bello Corrunes, 19 U. S. 152..__-__________________ 89
The Schooner Peggy, 5 U. S. 103_____________________ 86
Thomas Cusack Co. v. Chicago, 242 IT. S. 526__________ 17
Tulk v. Moxhay, 2 Phil. 774, 41 Eng. Rep. 1143________ 14
Trustees of the Monroe Ave. Church of Christ, et al. v.

Perkins, No. 153, Oct. Term, 1947___ -____________ 10
Twining v. New Jersey, 211 IT. S. 78_________________ 28
IT. S. v. Belmont, 301 IT. S. 324_____________________ .... 86
ITrciola v. Hodge, No. 291, Nov. Term, 1947__________ 52
Ware v. Hylton, 3 Hall. 199__________________________ 86
Welch v. Swasey, 214 U. S. 91_________________________ 17
Yick Wo v. Hopkins, 118 U. S. 356_____________________ 36
Zahn v. Board of Public Works, 274 U. S. 325__________ 17

Statutes Cited

Civil Rights Acts------------------------------------------------ 19, 20, 27
32 Hen. VIII, c. 34 (1540)___________________________ 13
51 Stat. 1031________________________________________ 85
8 H. S. C. 42_____________________________________ 19, 20, 44
28 U. S. C. 344 (b )______ 1___________________________ 1
United States Constitution:

Article IV, Section 2
V Amendment ---------- ------------------------------------------- 44
X III Amendment ____________________ ___________19, 44
X IV Amendment ---------------------2,4,19, 20, 21, 23, 27, 28,

29, 31, 33, 34, 35, 36, 37, 39, 44

PAGE

V l l

Treaties

PAGE

Potsdam Declaration ----- 88
United Nations Charter:

Article 2, paragraph 2------------,-------- -------------------- 84
Article 6, Section 2________________________________ 85
Article 55 _______________________ 1------------------------ 84
Article 56 ______ -________________________________ 84

Authorities Cited

Abrams, Charles, Discriminatory Restrictive Cove
nants—A Challenge to the American Bar, address
before Association of the Bar of the City of New
York, Feb. 1947_______ __________ .________________ 47

Acheson, Dean, Letter of F. E. P. C., F inal Report or
FEPC (1945) ____________________________________ 87

A nnals op the A merican A cademy of Political and
Social S cience, Yol. 243 (1946)__________________84,85

A rchitectural F orum, October, 1947___________________ 58

Beebler, Color Occupancy Raises Values, R eview oe
the Society of Residential A ppraisers (Sept.
1945) _____________ s____________________________ 75,78

Blackstone’s Commentaries ___—------ 19
Blandford, J. B., Jr.,

The Need for Low Cost Housing, Speech before An
nual Conference, National Urban League, Colum
bus, Ohio (Oct. 1, 1944)___________________ ....... 80

Testimony before Subcommittee on Housing and
Urban Redevelopment, Senate, 79th Congress,
H earings, Part 6 --------- 63

Britton, New Light on the Relation of Housing to
Health, 32 A merican Journal of Public H ealth
193 (1942) ____________________ ____ _______ ______ 59

V l l l

Britton & Altman, Illness and Accidents among Per
sons Living under Different Housing Conditions, 56
Public H ealth Reports 609 (1941)______ ._________ 59, 60

B uilding Reporter & Realty News, The Urban Negro,
Focus of the Rousing Crisis (Nov. 1945)_____li__ 75, 76

Bureau of Census

H ousing Supplement—

Bloch Statistics, Detroit, March, 1940...________ 57, 76

General Characteristics, Michigan, 16th Census,
1940 ____________________________________ :____ 51,54

Negroes in the U nited States, 1920-1932 (1935)___ 48

Population Reports

Sixteenth Census, 1940 ___________________________ 48

Current Population Reports, Detroit, April,
1947 _________________________________________ 48, 55

Special Census, Race, Sex, by Census T racts

August, 1945 ______________________________________ 49

January, 1946 1____________________________________ 49

Burgess, Residential Segregation in American Cities,
A nnals of A merican A cademy of Social and Po
litical Science (N ov. 1928)_________________________ 50

Cardozo, The Judge as A Legislator, T he Nature of
the Judicial Process__________________________ ._____ 32

Cayton, Housing for Negroes, Chicago Sun , Bee. 13,
*1943 ____ 52

Negro Housing in Chicago, Social A ction (April
15, 1940)_______________________...________ ______ 78

Chicago, Cook County, H ealth Survey: Report on
H ousing _____________ 59

Chicago Park District, T he P olice and M inority
Groups (1947)________ — ....______________ 67, 70

PAGE

Corbin, 29 Y ale L. Journal, 771—Note---------------------- 32
Clark, Covenants and I nterest Running with Land

12,13,14

Cobb, Medical Care and the Plight of the Negro, Crisis,
July, 1947______________________ _________________ 69

Committee on Hygiene of Housing of American Public
Health Association, Basic Principles of Healthful
Housing _____________________________________ _—59, 63

Cooper, The Frustration of Being a Member of a Minor
ity Group, 29 Mental Hygiene 189 (1945)_________ 62

Congressional Globe, 39th Congress, 1st Session,
Part 1 ________________________I_________________ 19, 20

Cressey, T he Succession oe Cultural Groups in the
City oe Chicago (1930)___________________________ 76

Detroit F ree Press, March 20, 1945--------------------------- 80
3 E lliots Debates, 515___________________________________ 85

Farris & Dunham, Mental Disorders in Urban A reas :
An Ecological Study of Schizophrenia and Other
Psychoses (1939)__________________________________ 62

Federal Works Agency, Postwar Urban Development
(1944) ____________________________________________ 63

Flack, A doption oe the F ourteenth A mendment (1908) 19

Frazier, N egro Y outh at the Crossway (1940)________ 70
Gover, Negro Mortality II, The Birth Rale and Infant

and Maternal Mortality, 61 Public Health Reports
43 (1946)_____________________ _____________________ 61

Hadley, Medical Psychiatry; an Ecological Note, 7
Psychiatry 379 (1944)____________ |j_____________ 61

H ealth Data Book for the City oe Chicago ---------------- 59

Hyde & Chisholm, Relation of Mental Disorders to
Race and Nationality, 77 N. E. Journal oe M edicine
612 (1944)

PAGE

Hyde & Kingley, Studies in Medical Sociology; The Re
lation of Mental Disorders to Population Density,
77 N. E. Journal of Medicine 571 (1944)___________

Johnson, Patterns of Negro Segregation (1943) __ .1_„
Kiser, Sea Island to City (1932) ____________________
Lemkin, Genocide as a Crime Under International Law,

41 A merican Journal of International Law 145
(1947) _________________________________________ 86,

McDiarmid, The Charter and the Promotion of Human
Welfare, 14 State Department Bulletin 210 (1946)

Making the Peace Treaties 1941-1947, Department of
State Publications 2774, European Series 2 4 ______

Miller, Covenants for Exclusion, Survey Graphic (Oct.
1947) ____________________________________________

Moran, Where Shall They Live, T he A merican City
(April 1942)_____________________________________

Mummy and Phillips, Negroes as Neighbors, Common
Sense, April 1944 __________________ _____________

Myrdal, A n A merican Dilemma (1944) ______________
National A ssociation of Real E state Boards, Press

Release No. 78, Nov. 15, 1944_____________________
National H ousing A gency

Housing Facts, 1940 ______________________________

McGraw, Wartime Employment, Migration and
Housing of Negroes in U. S. 1941-1944, Race Re
lations Service Documents Series A, No. 1,
1946 _________________________________ _______ 71,

National P ublic H ousing Conference, Race Relations
in Housing Policy (1946) __________________ _____

National Urban L eague, Economic and Cultural Prob
lems in Evanston, Illinois, as They Relate to the
Colored Population, Feb. 1945___ . ... , ......

X I

Newcomb & Kyle. The Housing Crisis in a Free Econ
omy, Law and Contemporary Problems (Winter,
1947) __________________________________ * ..—_ 77

Oakland Kenwood Property Owners Association of
Chicago, President’s Annual Report for 1944_____ 67

Park, Burgess & McKenzie, T he City (1925)-------------- 50
Paul, The Epidemeology of Rheumatic Fever and some

of Its Public Health Aspects, Metropolitan Life In
surance Co. (1943)________________________________ 60

People oe Detroit, Master Plan Reports, Detroit City
Planning Commission (1946)______________ 51, 66, 68, 69

President’s Conference on H ome B uilding and H ome
Ownership, Report of Committee on Negro Housing
(1932) ___________________________________________ 50

Robinson, Relation between Conditions of Dwellings
and Rentals by Race, Journal of Land and Public
U tility E conomics (Oct. 1946)__________________53,56

Rumney & Shuman, The Cost of Slums in Newark,
Newark Housing Authority, 1946_________________ 64

1 Sm ith ’s L eading Cases (8th Ed.) 150_______________ 13
Smillie, Preventive Medicine and Public H ealth

(1946) _________________________________________ 59,62
Stern, Long Range Effect of Colored Occupancy, Re

view of Society of Residential A ppraisers Jan.
1945 _________ 76

Stettinius, 13 State Department Bulletin, 928 (1945) 87
Stone, Equitable Rights and Liabilities of Strangers to

a Contract, 18 Col. L. Rev. 291 (1918)________ 12,40,41
Ibid, Part II, 19 Col. L. Rev. 177 (1919)___________ 41

The F ederation of Neighborhood A ssociations (Chi
cago), Restrictive Covenants (1944)______________ 67

T he Slum— Is Rehabilitation Possible? (Chicago Hous
ing Authority 1946)_____________________________ 52, 80

PAGE

Tiffany, Landlord and Tenant, I____________________ 13,14

Real Property (3rd ed.)___________________ '___ ___ 14

U nited Nations, Resolution of General Assembly, Dec.
11, 1946 ______________________________________________ 87

xii
PAGE

Urban H ousing, Federal Emergency Adm. of Public
Works ___________________________________________ 63

U nited States Childrens Bureau, Our Nations Chil
dren, No. 8 (August 1947)_______________________ 60

United States Department op Commerce

Survey of World War II Veterans and Dwelling
Unit Vacancy and Occupancy in the Detroit
Area, Oct. 31, 1946 _____________ ______________ 82

Survey of World War II Veterans and Dwelling
Unit Vacancy and Occupancy in the St. Louis
Area, Missouri, Nov. 26, 1946_______________ ____ 82

U nited States Department oe Labor

Survey of Negro World War II Veterans and Va
cancy and Occupancy of Dwelling Units Avail
able to Negroes in the Detroit Area, Michigan,
Jan. 1947 ____________________________________ 81, 82

Survey of Negro World War II Veterans and Va
cancy and Occupancy of Dwelling Units Avail
able to Negroes in St. Louis Area, Missouri and
Illinois, November-December, 1946____________ 82

Velie, Housing: Detroit’s Time Bomb, Collier’s Maga
zine, Nov. 23, 1946_______________________ ____ 55, 65, 78

X l l l

Walker, Urban Blight and Slums, 1938_____________ 63

Weaver, Chicago, A City of Covenants, Crisis Maga
zine, March, 1946____________________________ 70, 71, 83

Negro Labor, A National Problem (1946)________ 64, 79

PAGE

Planning for More Flexible Land Use, Journal of
Land and Public Utility E conomics, Feb., 1947 65

Race Restrictive Housing Covenants, Journal op
Land and P ublic Utility E conomics, Aug.,
1944 ________ 49,73,74

Wedum & Wedum, Rheumatic Fever in Cincinnati in
Relation to Rentals, Crowding, Density of Popula
tion, and Negroes, 34 A merican Journal op Public
H ealth 1065 (1945) _________________________________ 60

What Caused the Detroit Riot, NAACP Publication
(July, 1943) __ 71

1 W m . Saunders (1st Am. ed.) 240a__________________ 13

Winslow, H ousing por H ealth (The Milbank Founda
tion, 1941) _______________________________________59, 63

Wood, Introduction to H ousing (1939)____________ 51

Slums and Blighted A reas in U nited States (1935) 63

Woofter, N egro P roblems in C ities (1928) ________ __ 78

IN THE

(Hour! of % TUnxtvb
October Term, 1947

No. 87

Obsel M cGhee and M in n ie S. M cGhee, M s wife,
Petitioners,

Benjamin J. Sipes, and A nna C. Sipes, James A. Coon and
A ddie A. Coon, et al.,

Respondents.

BRIEF FOR PETITIONERS

Opinion Below
The opinion of the Supreme Court of the State of Michi

gan appears in the Record (E. 60-69) and is reported at 316
Mich. 614.

Jurisdiction
The jurisdiction of this Court is invoked under section

237b of the Judicial Code (28 U. S. C. 344b).

The date of judgment of the Supreme Court of the State
of Michigan is January 7, 1947 (R. 70), and petitioners’ mo
tion for a rehearing was denied on March 3, 1947 (R. 80).
A Petition for Certiorari was duly presented to this Court
on May 10, 1947 and was granted by this Court on June 23,
1947 (R. 81).

Summary Statement of Matter Involved

1. Statement of the Case

In the Circuit Court of Wayne County, Michigan, in
Chancery, the respondents herein sought and obtained a de
cree requiring the petitioners to move from property which
they owned and which they were occupying as their home,
and thereafter restraining them from using or occupying
the premises, and further restraining petitioners from vio
lating a race restrictive covenant upon such land, set forth
more fully below (R. 52-53).

In their amended answer to the bill of complaint peti
tioners duly raised the defense that the enforcement by the
court of such restrictive covenant would contravene the
Fourteenth Amendment of the United States Constitution
and that the restrictive covenant relied upon by the respon
dents was void as against public policy (R. 16-17). On ap
peal to the Supreme Court of the State of Michigan the
petitioners’ Reasons and Grounds of Appeal specifically as
signed as errors of the lower court the holding that the
enforcement of such restrictive covenant by a court of
equity was not violative of the Fourteenth Amendment of
the Constitution of the United States and that the race re
strictive covenant was not void as against public policy
(R. 5-6).

The Supreme Court of Michigan affirmed the decree
entered by the trial court and in its opinion considered
and adjudicated, in favor of the respondents, the issues
raised (R. 60-69).

2. Statement of Facts

Petitioners are citizens of the United States and are
Negroes (R. 48, 53). They own and occupy as a residence

Lot 52 in Seebaldt’s Subdivision of the City of Detroit,
Michigan, commonly known as 4626 Seebaldt Avenue (R. 7).
■Respondents are the owners of lots in the same subdivision
and an adjoining subdivision (E. 7). At various times dur
ing the year 1934 the predecessors in title of the petitioners
and respondents had executed and recorded an instrument
relating to their respective lots in such subdivisions, pro
viding in its essential parts as follows:

“ We, the undersigned, owners of the following
described property:

Lot No. 52 Seebaldt’s Sub. of Part of Joseph Tire-
man’s Est. % Sec. 51 & 52 10 000 A T and Fr ’l Sec.
3, T. 2S, E 11 E.

for the purpose of defining, recording, and carrying
out the general plan of developing the subdivision
which has been uniformly recognized and followed,
do hereby agree that the following restriction be im
posed on our property above described, to remain in
force until January 1, 1960—to run with the land,
and to be binding on our heirs, executors, and as
signs :

“ This property shall not be used or occupied by
any person or persons except those of the Caucasian
race.

“ It is further agreed that this restriction shall
not be effective unless at least eighty percent of the
property fronting on both sides of the street in the
block where our land is located is subjected to this
or a similar restriction” (R. 42).

Such restriction was sought to be imposed upon 53 lots
in the two subdivisions in which respondents reside (R. 34).
Petitioners purchased their property from persons who did
not sign the restrictive agreement (R. 13).

Question Presented

Does the enforcement by state courts of an agreement
restricting the disposition of land by prohibiting its use and
occupancy by members of unpopular minority groups, where
neither the willing seller nor the willing purchaser was a
party to the agreement imposing the restriction, violate the
Fourteenth Amendment and treaty obligations under the
United Nations Charter?

Errors Relied Upon

The Supreme Court of Michigan erred in holding:

1. That the due process clause of the 14th Amendment
afforded petitioners no rights other than notice, a
day in court and reasonable opportunity to appear
and defend, and was not violated by the issuance of
the injunction enforcing the race restrictive agree
ment (R. 65-66).

2. That court enforcement of the restriction in question
does not violate the equal protection clause of the
14th Amendment, because “ we have never applied
the constitutional prohibition to private relations and
private contracts ’ ’ and that on the contrary to refuse
to enforce the agreement would deny equal protection
to the plaintiffs below (R. 66).

3. That the human rights provisions of United Nations
Charter are “ merely indicative of a desirable social
trend and an objective devoutly to be desired by all
well-thinking peoples.” It is not “ a principle of law
that a treaty between sovereign nations is applicable
to the contractual rights between citizens of the
United States when a determination of these rights
is sought in State courts” (R. 67).

OUTLINE OF ARGUMENT

I. Racial covenants restrictive of occupancy have
developed through an uncritical distortion of
doctrines concerning restrictions on use of prop
erty.
A. Historical development of devices restrictive of use

of real property.

B. The distinction between restrictions upon the use
of property and restrictions upon the occupancy of
property by members of unpopular minority groups.

II. The right to use and occupy real estate as a home
is a civil right guaranteed and protected by the
Constitution and laws of the United States.

A. Originating in ancient common law, this civil right
is expressly protected by the Fourteenth Amend
ment and the Civil Rights Act.

B. This civil right includes the right to own, use and
occupy real estate as a home.

III. Under the Fourteenth Amendment no state may
deny this civil right to any person solely because
of his race, color, religion or national origin.
A. It is well settled that legislation conditioning the

right to use and occupy property solely upon the
basis of race, color, religion or national origin vio
lates the Fourteenth Amendment.

B. A civil right guaranteed by the Fourteenth Amend
ment against invasion by a legislature is also pro
tected against invasion by the judiciary.

IV. Judicial enforcement of the racial restrictive cove
nant here involved is a denial by the State of
Michigan of the petitioners’ civil rights.

A. The decree below was based solely upon race.

B. It is the decree of the state court which denies
petitioners the use and occupancy of their home.

C. Neither the existence of the restrictive agreement
nor the fact that the state’s action was taken in
reference thereto alters in any way the state’s re
sponsibility under the Fourteenth Amendment for
infringing a civil right.

The fact that neither petitioners nor their
grantors were parties to the covenant further
emphasizes the state’s responsible and predom
inant role in the action taken against them.

D. Petitioners’ right to relief in this case is not affected
by the decision in Corrigan v. Buckley.

V. While no state-sanctioned discrimination can be
consistent with the Fourteenth Amendment, the
nation-wide destruction of human and economic
values which results from racial residential segre
gation makes this form of discrimination pecu
liarly repugnant.

A. Judicial enforcement of restrictive covenants has
created a uniform pattern of unprecedented over
crowding and congestion in the housing of Negroes
and an appalling deterioration of their dwelling
conditions. This extension and aggravation of slum
conditions have in turn resulted in a serious rise in
disease, crime, vice, racial tension and mob violence.

B. There are no economic justifications for restrictive
covenants against Negroes. Real property is not
destroyed or depreciated solely by reason of Negro
occupancy and large segments of the Negro popu
lation can afford to live in areas from which they are
barred solely by such covenants. The sole reason
for the enforcement of covenants are racial prej
udice and the desire on the part of certain operators
to exploit financially the artificial barriers created
by covenants.

VI. Judicial enforcement of this restrictive covenant
violates the treaty entered into between the United
States and other members of the United Nations
under which the agreement here sought to be
enforced is void.

Summary of Argument
Eacial restrictive covenants of the type involved in this

case have developed through the uncritical distortion of
doctrines concerning restrictions on the use of property.
Equitable enforcement of covenants restricting the use of
land was an innovation introduced into the law of England
to accomplish socially desirable delimitations of the func
tions which might be carried on in particular areas. Such
restrictions affected all persons equally and in the same way.
During this century, however, equitably enforced restrictive
covenants have been used in America for the new and en
tirely unrelated purpose of preventing the ownership and
occupancy of homes by unpopular minority groups. The
discriminatory effect of these latter day covenants and the
absence of any resulting advantage to society prevent the
earlier use covenants from affording any analogy justify
ing the enforcement of racial covenants restricting occu
pancy.

Beyond their lack of historical or analogical justification
in the common law, the judicial enforcement of racial restric
tive covenants infringes the civil right to use and occupy
real property as a home without legally sanctioned racial
impediments. The right freely to acquire and occupy land,
early declared by Blackstone and other common law writers,
survives today under protection of the Constitution and laws
of the United States. After discussion in Congress, this
right was expressly protected in the Civil Bights Act against
all restrictions based on race. From the Civil Rights Cases
to Buchanan v. Warley, this Court has protected the right
of a willing buyer to acquire property from a walling seller
and to use it freely as his own, without state imposed im
pediment based upon race, as a fundamental civil right pro
tected by the Fourteenth Amendment.

While Buchanan v. Warley protected the right in ques
tion against infringement by statute and Harmon v. Tyler
protected it against infringement by a combination of pri
vate action and statutory sanction, the rationale of these
cases leaves no room for a different conclusion where ju
dicial action in the absence of statute has accomplished the
same result. In a growing body of analogous situations this
Court has protected fundamental civil rights against judicial
infringement.

The sole argument against applying a doctrine which
struck down racial zoning statutes to the case at bar is based
upon the fact that the court’s action here is founded upon
a private agreement. But the private agreement is not self
executing. The determination of the state to enforce the
agreement involves the subordination of a fundamental civil
right to considerations of public interest promoted by giving
covenantors the benefit of their bargain. The obligations
of the Fourteenth Amendment may not thus be diminished

or evaded. This Court has consistently so ruled in a variety
of cases involving conflicts between fundamental civil rights
on the one hand and various interests of property and pub
lic security on the other.

The significance of the private agreement is further
minimized, and the role of the state as the effective engineer
of discrimination is further emphasized by the fact that
neither the petitioner grantees in this case nor their grant
ors were signers of the restrictive agreement. A special
legal doctrine and an extraordinary application of state
force were necessary to make effective the racial discrimina
tion of which petitioners complain.

A vast amount of authoritative sociological data demon
strates that health, morals and safety are impaired on a
national scale as a consequence of the widespread racial
restrictive covenants. Property values are also impaired.
Evils affecting the segregated minorities inevitably injure
the community as a whole. Thus, although no state sanc
tioned discrimination can be consistent with the Fourteenth
Amendment, the nationwide destruction of human and eco
nomic values which results from racial residential segre
gation makes this form of discrimination peculiarly repug
nant.

The human rights provisions of the United Nations
Charter, as treaty provisions, are the supreme law of the
land and no citizen may lawfully enter into a contract in
subversion of their purposes. The restrictive agreement
here presented for enforcement falls within this proscrip
tion.

A R G U M E N T

Preliminary Statement
In 1917, after the decision of this Court in Buchanan v.

Warley, it could reasonably have been predicted that life in
these United States would not be disfigured by the zoning of
human beings. But seekers after legal means to accomplish
what the Court had proscribed were persistent in their ef
forts to bring the ghetto to America, and courts, misled by
the presumed license of Corrigan v. Buckley, have too often
assisted them in doing so.

The areas affected have become so large and so numer
ous, the groups restricted so diverse, that the restrictive
covenant today must be recognized as a matter of gravest
national concern. Aspects of the problem have been liti
gated in at least twenty-one states during the last twenty
years. These cases reveal covenants affecting areas as
large as one thousand lotsa and twenty-six city blocks.1*
These restrictions do not run only against Negroes. Courts
have been asked to exclude from the ownership or occu
pancy of land persons of Arabian, Armenian, Chinese,
Ethiopian, Greek, Hindu, Korean, Persian, Spanish and
Syrian ancestry as well as American Indians, Hawaiians,
Jews, Latin Americans and Puerto Eicans, irrespective of
citizenship. A petition for certiorari now pending before
this Court shows a clergyman excluded from occupancy of
the parsonage of his church.0 Such are the consequences
of the restrictive covenant.

Surely, a device of unreason and bigotry cannot be per
mitted to destroy the essential character and oneness of
America as a community,—“ not while this Court sits.”

a Mays v. Burgess, 147 F. (2d) 869 (Diitrict of Columbia— 1944)~
b Phillips v. Wearn, 226 N. C. 290 (1946).
c Trustees of the Monroe Avenue Church of Christ et al. vT Perkins

et al., No, 153, October Term, 1947,

j :

Racial Covenants Restrictive of Occupancy Have
Developed Through an Uncritical Distortion

of Doctrines Concerning Restrictions
on Use of Property.

Doctrines originating in and having proper application
to limitations of how property shall be used have in recent
years been distorted and unjustifiably applied to limitations
of who shall occupy property.

A. Historical Development of Devices Restrictive
of the Use of Real Property,

While the law relative to restrictions on the use of real
property developed along lines historically different from
those which led to the development of the doctrines relative
to illegal restraints on alienation, the basic considerations
of policy underlying each are essentially the same. A wise
and ancient policy, which promotes those principles of law
which permit the most beneficial use of the land resources
of the country, is best served by allowing property to be
freely alienable so that it may come into the hands of him
who can best use it, and the same policy allows a person to
put the property to the lawful use which he considers most
advantageous.

The law has extended no greater favor to restrictions
on the free use and enjoyment of land than to restrictions
upon the free alienation of land. This is evidenced by the
reluctance and, in some cases, the refusal, of courts to ex
tend traditional devices or to create new devices whereby
a more complete and simpler expedient for controlling use
of another’s land would be afforded.

The development of the law relative to restrictions on
use is more obscure than that relative to restrictions on
alienation. Two devices, perhaps, antedated the restric
tive covenant. An owner of land might convey a part
thereof subject to a condition subsequent that the land con
veyed should not be used in a particular manner so as to af
fect the part retained, upon breach of which condition the
conveyor might exercise his power to terminate the
grantee’s estate. Or the owner of one parcel might ac
quire by grant or reservation an easement restricting uses
to be made upon another parcel. Neither could accomplish
a restriction of land use save within narrow limits.1

Covenants respecting the use of land developed slowly,
and within similarly circumscribed areas. Enforcement
in the law courts of covenants, except as between the par
ties thereto, was a deviation from the common law rules
that a chose in action was nonassignable, and that only a
party to a contract can be held liable thereon.2

It appears that prior to the middle of the sixteenth cen
tury, both the benefit and burden of a covenant contained
in a lease ran to an assignee of the leasehold, so that the as

1 Both devices necessitated an instrument under seal. The power
of termination for breach of condition could neither be assigned inter
vivos nor devised, and easements the benefit of which was in gross
did not run either as to benefit or burden. Common law easements
could be created only in a limited class of cases, the law not favoring
the creation of new forms of easements not known to the early law.
Neither device was afforded a remedy by which actual or literal per
formance of the restriction could be judicially compelled. Stone,
Equitable Riqhts and Liabilities of Stranqers to a Contract, 18 Col.
L. Rev. 291-293.

2 “ The terms ‘real covenants’ or ‘covenants running with the land’
are of course metaphorical. The covenants are always personal in
the sense that they are enforced in personal actions for damages, etc.;
and they cannot actually run with the land as Coke seemed to think;
the question is merely how far the transfer of an interest in land will
also transfer either the benefit or the burden of covenants concerning
it.” Clark, Covenants and Interests Running with Land, 73,

signee of tlie lessee might be held liable on the covenant,
and became entitled to enforce it. But, neither the benefit
of the covenant passed to, nor the burden of the covenant
was imposed upon, the assignee of the reversion.3 In 1540,
the Statute of Covenants4 declared that lessors and their
assigns should have the right to enforce covenants and con
ditions against lessees and their assigns, and conferred
reciprocal rights upon lessees and their assigns to enforce
covenants against lessors and their assigns.5 6 Limitations
upon the running of such covenants were imposed in
Spencer’s case,0 which declared that the covenant must
“ touch or concern” the land demised, otherwise it would
not run, and that even though the covenant touched or con
cerned the land, if it concerned likewise a thing which was
not in being at the time of the demise, but which was to be
built or created thereafter, assignees would not be bound
unless they were expressly mentioned.7 Where the covenant
was made between owners in fee simple, not in connection
with a lease, the additional requirement of “ privity of

3 1 Wms. Saunders, (1st Am. ed.) 240a, n. 3 ; 1 Sm ith ’s L eading
Cases ('8th ed.) 150; 1 T iffany, Landlord & T enant, 968-969.

4 32 Hen. V III, c. 34 (1540).
8 This statute was not enacted entirely out of a desire to broaden

the covenant device. “ The reason for the enactment of the statute
was that the monasteries and other religious and ecclesiastical houses
had been dissolved and their lands had come into the possession of the
king, who distributed them to the lords. Much of the lands was sub
ject to leases when they fell into the hands of the king, and the monks
had inherited in leases various covenants and provisions for their
benefit and advantage. At the common law no person could take the
benefit of any covenant or condition except such as were parties or
privies thereto, so that the grantees of the king could not enforce the
covenants in the leases. These things were recited in the preamble,
and the statute was enacted to give to the grantees of the king the
same remedies that the original lessors might have had." Purvis v.
Shuman, 273 111. 286, 112 N. E. 679 (1916).

6 5 Coke 16.
7 These limitations caused no little confusion in the law. Clark,

op. cit. supra note 8, 74 et seq.

estate” must be satisfied8 and, even when all requirements
were satisfied, the English courts refused to permit the
running of the burden of such a covenants so as to be en
forceable against a transferee of the land.9 Until equity
commenced the exercise of its peculiar powers in the cov
enant field, the sole remedy in event of breach was, of
course, an action for damages.

Prior to the middle of the nineteenth century, covenants
not to use land in a particular manner were specifically en
forceable in equity by injunction against the promisor where
the requisite inadequacy of a legal remedy existed.10 11 New
developments followed the decision in 1848 in Tulk v. Mox-
hay,u which established that a covenant as to the use of land
might affect a subsequent purchaser who takes with notice
thereof, equity in such cases enjoining a use of the land in
violation of the covenant.12 The requirements of touching
and concerning privity of estate were swept aside13 and a
more workable restrictive device created.

With the urbanization of the population, and the more
crowded conditions of modern life, the desire to secure suit

8 Here again the requirement was not exact, and divergent views
followed. Clark, op. cit. supra note 8, 91 et seq.

9Austerberry v. Oldham, 29 Ch. D. 750; Clark, op. cit. supra
note 8, 113; 3 T iffany, R eal Property (3rd ed.) 445.

10 Martin v. Nutkin, 2 P. Wms. 266; Lord Grey v. Saxon, 6
Ves. 106.

11 2 Phil. 774, 41 Eng. Rep. 1143.
12 Whether these restrictions are enforced as contracts concerning

the land, or as servitudes or easements on the land, is still a subject
of Speculation. The opposing theories are analyzed in Clark, op. cit.
supra note 8, 149 et seq.

13 Clark, op. cit. supra note 8, 150.

able home surroundings led to a demand for real estate
limited solely to development for residential purposes. This
natural desire of householders has been exploited by land
developers and realtors so that the restriction of particular
areas of property in or near American cities to residential
use is now becoming- the rule rather than the exception. The
legal machinery to achieve this end has been found in the
main not in the ancient rules of easements or covenants
enforceable only at law, but in the activities of courts of
equity in enforcing restrictions as to use of land when
reasonable. Within its historical framework, the covenant
enforceable in equity has thus achieved widespread success
and popularity as a device capable of accomplishing a
measurable control over uses to which a neighbor’s land
might be put. Its accomplishments in this wise advanced
the public weal by promoting healthier, safer and morally
superior residential areas through specialization of use
activities upon propinquous lands. Such limited use restric
tions were accomplished without entrenchment upon the
tenet of individual freedom of use and enjoyment of prop
erty.

B. The Distinction Between Restrictions Upon the
Use of Property and Restrictions Upon the
Occupancy of Property by Members of Un
popular Minority Groups.

From its inception until the wane of the last century,
the restrictive covenant enforceable in equity was always
and only an agent selective of the type of use which might
be made of another’s land. Neither the history of its de
velopment nor the economic or social justifications for its
judicial enforcement disclose a basis for its employment as
a racially discriminatory preventive of occupancy. This
novel twist in the law wTas introduced by historical acci

dent,14 and has survived only because of judicial indifference
toward the consequent distortion of fundamental concepts
and principles and the economic and social havoc thereby
wrought:

1. The distinction between restrictions on use and those
on occupancy is fundamental, but is completely ignored.
The concept of use restrictions before the birth of racial
restrictive covenants had been, and with their sole excep
tion, still is in terms of type of structure or type of activity
upon the land. Property was left open to occupancy by
any person, including him who engaged in the inhibited
activity in another place. The distinction is between who
occupies the land, and what he does with it. Restrictions
against manufacturing uses prevented the operation of
factories on the restricted land, but industrialists and em
ployees might nevertheless establish their residences there;
those against taverns, gambling dens and houses of prosti
tution did not prohibit occupany by tavernkeepers, gamblers
and prostitutes who plied their trade elsewhere.

2. The cases enforcing nonracial covenants dealt with
restrictions possessing the equality of personal applica
tion implicit in reasonableness. Race or other personal

14 The law relative to the enforceability in equity of racial restric
tions against occupancy stems from Los Angeles Investment Co. v.
Gary, 181 Cal. 680, 186 P. 596 (1918), which followed two years
behind Buchanan v. Worley. The decision was 3-2 and, as the court
expressed in its opinion, it was not “ favored by either brief or argu
ment on behalf of the respondents,” (186 Cal. 681) the Negro occu
pants. The restriction was sought to be imposed by condition subse
quent, rather than by covenant, and the court pointed out that “ what
we have said applies only to restraints on use imposed by way of
condition and not to those sought to be imposed by covenant merely.
The distinction between conditions and covenants is a decided one and
the principles applicable quite different.” (Id., 683). Nevertheless,
and notwithstanding the fallacy in analogizing a restriction on occu
pancy to one on use, courts subsequently faced with the racial occu
pancy covenant followed the lead supplied by this case.

considerations could not be factors in such an equation;
only type of use could be important. All persons, irrespec
tive of race, were alike bound by the restriction and alike
free to make any unrestricted use of the land. Irrespective
of race, every owner of the restricted land possessed a
perfect privilege to put the land to any use uninhibited by
the covenant; nor was race ever an exemption from the
operation of the restriction for, irrespective of race, every
owner of the restricted land was bound to observe the
restriction. Racial covenants, however, ignore all reason
able considerations and ground their discriminations point
edly on race alone.

3. Nonracial covenants effected only prohibitions which
accorded with the public good. The proscribed uses were
usually illegal, immoral, or unsafe to the community.
Many constituted indictable offenses or abateable nuisances.
All were of such character that they could better be con
ducted elsewhere. The same prohibitions could be, and
frequently were, effected by legislation.15 But occupancy
of land by members of unpopular minority groups does
not fall within the above categories.16 The absence of all
relation to the public health, morals, safety or general wel
fare precludes its prohibition by statute.17

15 Standard Oil Co. v. Marysville, 279 U. S. 582; Gorieb v. Fox,
274 U. S. 603 ; Zahn v. Board of Public Works, 274 U. S. 325 ; Euclid
v. Ambler Realty Co., 272 U. S. 365; St. Louis Poster Advertising
Co. v. St. Louis, 249 U. S. 269; Pierce Oil Co. v. Hope, 248 U. S.
498; Thomas Cusack Co. v. Chicago, 242 U. S. 526; Northwestern
Laundry Co. v. Des Moines, 239 U. S. 486; Hadacheck v. Sabastian,
239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Laurel Hill
Cemetery v. San Francisco, 216 U. S. 358; Welch v. Swasey, 214
U. S. 91; Bacon v. Walker, 204 U. S. 311; Fischer v. St. Louis, 194
U. S. 361.

16 Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. S.
668- City of Richmond v. Deans, 281 U. S. 704; Crist v. Henshaw,
196 Old. 168 (1945).

17 See Point V of this brief.

4. Nonracial covenants did not subvert individual rights
of property. They affected only a single constituent of
property—use; all other attributes of property, including
occupancy, retained their traditional freedom. The curtail
ment in freedom of user thus effected was a compromise
justified by the benefit flowing from the reconciliation of
the innumerable and conflicting freedoms of use possessed
by others. Racial covenants destroy the essence of prop
erty ; they represent an obliteration, not a compromise.

5. Nonracial covenants drew the substance of their
validity from their purpose and effect as engineers of su
perior residential areas. Racial occupancy restrictions
cannot reasonably be considered as improving the health,
morals, safety or general welfare of the occupants of the
restricted area.18 On the contrary, and at the same time,
their cumulative economic and social effects have impaired
the health, morals, safety and general welfare of all.19

Such use of land as is characteristically proscribed by
nonracial restrictive covenants is likely to constitute a
serious injury to the neighboring landowner and a matter
of concern to the state. But in our democratic society the
skin color, national origin or religion of the occupant of
property cannot be a legal injury to a neighbor or a matter
of concern to the state.

The constitutional consequence of the foregoing distinc
tions is that this Court has upheld state statutes imposing
various reasonable restrictions on use20 but, beginning with
Buchanan v. Warley, has uncompromisingly struck down
every effort of the states to impose racial residential restric
tions by legislation.21 That conclusion was inevitable.

18 See cases cited in footnote 16 supra.
19 See Point V of this brief.
20 See cases cited in footnote 15 supra.
21 See cases cited in footnote 16 supra.

The Right to Use and Occupy Real Estate as a Home
is a Civil Right Guaranteed and Protected by the

Constitution and Laws of the United States.

Blaekstone pointed out that the third absolute right “ is
that of property, which consists in the free use, enjoyment,
and disposal of all his acquisitions, without any control or
diminution, save only by the laws of the land.” 22 This
right is expressly protected by the Fourteenth Amendment
and the Civil Rights Acts23 against invasion by the states
on racial grounds.

The Congressional debates after the adoption of the
Thirteenth Amendment and preceding the enactment of the
Civil Rights Act of 1866 show that Congress intended to
protect the fundamental civil rights of the freedmen. High
on the list of rights to be protected was the right to own
property. Some doubts were expressed by the opponents
of the measure as to its constitutionality, and particularly
the right of Congress to confer citizenship upon the former
slaves without an amendment.24 But neither the proponents
of the Civil Rights Act nor its opponents doubted that citi
zens of the United States had an inherent right to acquire,
own and occupy property.25 After the enactment of the
Fourteenth Amendment, Congress reenacted the Civil

22 Blackstone’s Commentaries, p. 138.
23 See: 8 U. S. C. 42.
24 Flack, Adoption of the Fourteenth Amendment (John Hopkins

Press, 1908), p. 21.
25 See: Debate between Senators Cowan and Trumbull, Congres

sional Globe, 39th Cong., 1st Session, Part 1, pp. 499-500.

Rights Act with a few modifications, expressly stipulating
therein:

“ All citizens of the United States shall have the
same right in every State and Territory as is en
joyed by white citizens thereof to inherit, purchase,
lease, sell, hold and convey real and personal prop
erty. ’ ’ 26

Throughout the debates on the Amendment and the
Civil Rights Bill there is a clear perception that freedom
for the former slave without protection of his fundamental
right to own real or personal property was meaningless.
One of the Senators cited as an example of the oppression
from which the freedmen must be protected the fact that in
1866 in Georgia “ if a black man sleeps in a house over
night, it is only by leave of a white man,” 27 and another
asked: “ Is a freeman to be deprived of the right of ac
quiring property, having a family, a wife, children,
home ? ” 28

In 1879 this Court construed the Fourteenth Amendment
as containing a positive immunity for the newly freed slaves
against “ legal discriminations * * * lessening the security
of their enjoyment of the rights which others enjoy” 29 and
in 1917 this Court construed the Civil Rights Act as deal
ing “ with those fundamental rights in property which it
was intended to secure upon the same terms to citizens of
every race and color. ’ ’ 30

In the Civil Rights Cases this Court, while holding
that sections of the Civil Rights Act were unconstitutional

26 8 U. S. C. 42.
27 Congressional Globe, 39th Cong., 1st Session, Part 1, p. 589.
28 Senator Howard, Ibid., p. 504.
29 Strauder v. W est Virginia, 100 U. S. 303, 308.
30 Buchanan V, Warley, 245 U. S. 60, 79.

2 1

because they applied to individual action, at the same time
emphasized the application of the Fourteenth Amendment
to state action of all types, whether legislative, judicial or
executive.

“ In this connection it is proper to state that civil
rights, such as are guaranteed by the Constitution
against state aggression, cannot be impaired by the
wrongful acts of individuals, unsupported by state
authority in the shape of laws, customs or judicial or
executive proceedings. ’ ’ 31

It was thus made clear that the Fourteenth Amendment does
prohibit the wrongful acts of individuals where supported
“ by state authority in the shape of laws, customs, or ju
dicial or executive proceedings.” (Italics ours.)

Among the rights listed as protected against legislative,
judicial and executive action of the states was the right “ to
hold property, to buy and to sell.”

The right that petitioners assert is their civil right to
occupy their property as a home—the same right recognized
by this Court in Buchanan v. Warley:

“ The Fourteenth Amendment protects life, lib
erty, and property from invasion by the States with
out 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 at
tributes of property * * * ” 32

In the instant case the respondents seek by means of
state court action to evict petitioners from the property
they own and are occupying as a home. On the face of the

31 109 U. S. 3, 17.
82 245 U. S. 60, 74.

pleadings they do not seek to divest petitioners of title.
But the effect of denying to petitioners the right to occupy
their property as a home in a residential neighborhood,
under any circumstances, is a denial of the civil right set
out above.

Ill

Under the Fourteenth Amendment, No State May Deny
This Civil Right to Any Person Solely Because of

His Race, Color, Religion, or National Origin.

A. It is Well Settled That Legislation Condition
ing the Right to Use and Occupy Property
Solely Upon the Basis of Race, Color, Religion,
or National Origin Violates the Fourteenth
Amendment.

Racial restrictions by states of the right to acquire, use,
and dispose of property are in direct conflict with the Con
stitution of the United States. The first efforts to establish
racial residential segregation were by means of municipal
ordinances attempting to establish racial zones. This
Court, in three different cases, has clearly established the
principle that the purchase, occupancy, and sale of prop
erty may not be inhibited by the states solely because of
the race or color of the proposed occupant of the prem
ises. 33

In Buchanan v. Warley, supra, an ordinance of the City
of Louisville, Kentucky, prohibited the occupancy of lots by
colored persons in blocks where a majority of the residences
were occupied by white persons and contained the same

88 City of Richmond v. Deans, 281 U. S. 704; Harmon v. Tyler,
273 U. S. 668; Buchanan v. Warley, 245 U. S. 60.

prohibition as to white persons in blocks where the majority
of houses were occupied by colored persons. Buchanan
brought an action for specific enforcement of a contract of
sale against Warley, a Negro, who set up as a defense a
provision in the contract excusing him from performance
unless he should have the right under the lawTs of Kentucky
and of Louisville to occupy the property as a residence and
contended that the ordinance prevented him from occupy
ing the property. Buchanan replied that the ordinance
was in violation of the Fourteenth Amendment.

In a unanimous opinion by Mr. Justice D ay, this Court
decided the following question:

“ The concrete question here is: May the occu
pancy, and, necessarily, the purchase and sale of
property of which occupancy is an incident, be in
hibited 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 prop
erty, 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” (245 U. S. 60, at p. 75).

The decision in the Buchanan case disposed of all of the
arguments seeking to establish the right of a state to restrict
the sale of property by excluding prospective occupants be
cause of race or color:

Use and occupancy is an integral element of ownership
of property:

“ * * * Property is more than the mere thing
which a person owns. It is elementary that it in
cludes the right to acquire, use, and dispose of it.

The Constitution protects these essential attributes
of property. Holden v. Hardy, 169 U. S. 366, 391,
42 L. ed. 780, 790, 18 Sup. Ct., Eep. 383. Property
consists of the free use, enjoyment, and disposal of
a person’s acquisitions without control or diminu
tion save by the law of the land. 1 Cooley’s Bl. Com.
127.” (245 IT. S. 60, at p. 74.)

Racial residential legislation can not he justified as a
proper exercise of police power:

“ We pass, then, to a consideration of the case
upon its merits. This ordinance prevents the occu
pancy of a lot in the city of Louisville by a person of
color in a block where the greater number of resi
dences are occupied by white persons; where such
a majority exists, colored persons are excluded. This
interdiction is based wholly upon color; simply that,
and nothing more # #

“ This drastic measure 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 pro
mote the public peace by preventing racial conflicts;
that it tends to maintain racial purity; that it pre
vents the deterioration of property owned and oc
cupied by white people, which deterioration, it is
contended, is sure to follow the occupancy of ad
jacent premises by persons of color.

“ 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 preserva
tion of the public peace, this aim cannot be accom
plished by laws or ordinances which deny rights cre
ated or protected by the Federal Constitution.” (245
IT. 8. 60, at p. 81.)

Race is not a measure of depreciation of property:

“ It is said that such acquisitions by colored per
sons 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.” (245 U. S. 60,
at p. 82.)

The issue of residential segregation on the basis of race
was squarely met and disposed of in the Buchanan case.
Each of the arguments in favor of racial segregation was
carefully considered and this Court, in determining the con
flict of these purposes with our Constitution, concluded:

“ That there exists a serious and difficult problem
arising from a feeling of race hostility which the law
is powerless to control, and 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. ’ ’
(245 IT. S. 60, at pp. 80-81.)

The determination of this Court to invalidate racial resi
dential segregation by state action regardless of the alleged
justification for such action is clear from two later cases.

In the case of City of Richmond v. Deans, a Negro who
held a contract to purchase property brought an action in
the United States District Court seeking to enjoin the en
forcement of an ordinance prohibiting persons from using
as a residence any building on a street where the majority
of the residences were occupied by those whom they were
forbidden to marry under Virginia’s Miscegenation Statute.
The Circuit Court of Appeals, in affirming the judgment of
the trial court, pointed out: “ Attempt is made to distin
guish the case at bar from these cases on the ground that
the zoning ordinance here under consideration bases its
interdiction on the legal prohibition of intermarriage and
not on race or color; but, as the legal prohibition of inter
marriage is itself based on race, the question here, in final
analysis, is identical with that which the Supreme Court

has twice decided in the cases cited. [Buchanan v. Warley
and Ilarmon v. Tyler.] ” 84 This Court affirmed this judg
ment by a Per Curiam decision.85

The principles of the Buchanan case have also been ap
plied in cases involving the action of the legislature coupled
with the failure of individuals to act. In Ilarmon v. Tyler,
a Louisiana statute purported to confer upon all municipali
ties the authority to enact segregation laws, and another
statute of that state made it unlawful in municipalities
having a population of more than 25,000 for any white per
son to establish his residence on any property located in a
Negro community without the written consent of a majority
of the Negro inhabitants thereof, or for any Negro to estab
lish his residence on any property located in a white com
munity without the written consent of a majority of the
white persons inhabiting the community.

An ordinance of the City of New Orleans made it unlaw
ful for a Negro to establish his residence in a white com
munity, or for a white person to establish his residence in
a Negro community, without the written consent of a ma
jority of the persons of the opposite race inhabiting the
community in question. Plaintiff, alleging that defendant
was about to rent a portion of his property in a community
inhabited principally by white persons to Negro tenants
without the consent required by the statute and the ordi
nance, prayed for a rule to show cause why the same should
not be restrained.

Defendant contended that the statutes and the ordinance
were violative of the due process clause of the Fourteenth
Amendment. The trial court sustained defendant’s posi
tion. On appeal, the Supreme Court of Louisiana reversed,

85 281 TJ SiC7Q4°nd V' Deans’ C- C- A-—4th, 37 F. (2d) 712, 713,

and upheld the legislation. On appeal to this Court, the de
cision of the Supreme Court of Louisiana was reversed on
authority of Buchanan v. Warley. A like disposition of the
same legislation was had in the Circuit Court of Appeals
for the Fifth Circuit in an independent case.

In the instant case, all of the alleged evils claimed to flowT
from mixed residential areas which are relied upon for
judicial enforcement of racial restrictive covenants were
advanced in the Buchanan and the other two cases as justifi
cation for legislative action to enforce residential segrega
tion. In the Buchanan case, this Court dealt with each of
the assumed evils and held that they could not be solved by
segregated residential areas and did not warrant the type
of remedy sought to be justified. Efforts to circumvent this
decision have been summarily disposed of by this Court.30

The right petitioners here assert is the civil right to
occupy their property as a home—the same right which was
recognized and enforced in Buchanan v. Warley.

B. Civil R igh ts A r e G u aran teed b y th e F ou rteen th
A m en d m en t A ga in st Invasion b y th e Judiciary.

It is equally well settled that the limitations of the Four
teenth Amendment apply to the exercise of state authority
by the judiciary. As long ago as 1879, in Ex Parte Vir
ginia,87 this Court specifically recognized that the judiciary
enjoyed no immunity from compliance with the require
ments of the Fourteenth Amendment. In that case the state
judge was held to he subject to the federal Civil Rights Act,
despite the plea that in selecting a jury in a manner which
excluded otherwise qualified persons solely on account of
their color, the judge was exercising a function of his judicial * 37

86 Harmon v. Tyler and City of Richmond v. Deans, supra.
37100 U. S. 339.

office. In an unbroken line of precedents since that time,
this Court has again and again reaffirmed this proposition.
For example, in Twining v. New Jersey,38 this Court said:

“ The law of the state, as declared in the case at
bar, which accords with other decisions # * per
mitted such an inference to be drawn. The judicial
act of the highest court of the state, in authoritatively
construing and enforcing its laws, is the act of the
state. * * # The general question, therefore, is,
whether such a law violates the Fourteenth Amend
ment, either by abridging the privileges or immuni
ties of citizens of the United States, or by depriving
persons of their life, liberty or property without due
process of law.” (211 U. S. 78, at pp. 90-91.)

It is readily conceded that the “ law” to which the Court
there referred was actually one of a series of rules, common
law as well as statutory, which had been developed by the
state authority, legislative and judicial, for the conduct of
criminal trials. So classified, the opinion demonstrates the
complete acceptance by this Court of the proposition orig
inally announced in Ex Parte Virginia, that the procedure
of state courts, whether provided by legislation or rule of
decision by state courts, must meet the requirements and
limitations of the Fourteenth Amendment.39

The obligation of the state judiciary to comply with the
limitations of the Fourteenth Amendment, however, is not
confined to procedure. On the contrary this Court has fre
quently tested decisions of state courts on matters of sub
stantive law against the requirements of the federal Consti

38 211 U. S. 78.
39 See also: Hysler v. Florida, 315 U. S. 411; Brmvn, Ellington &

Shields v. Mississippi, 297 U. S. 278 ; Moore v. Dempsey, 261 U. S.
86; Norris v. Alabama, 294 U. S. 587; Powell v. Alabama, 287 U. S.
4 5 ; Brinkerhoff Fans Co, v. Hill, 281 U. S. 673 ; Carter v. Texas,
177 U. S. 442,

tution and has equally frequently recognized that it was
obliged so to do by the Fourteenth Amendment. This is
aptly demonstrated by the opinion of this Court in Cant
well v. Connecticut,40 In that case, it will be remembered,
the petitioner had been convicted on an indictment which
contained four counts charging violation of express statu
tory prohibitions, and a fifth count which charged a common
law breach of the peace. The petitioner contended in apply
ing for certiorari that his conviction on each of these counts
violated the Fourteenth Amendment. This Court recognized
that both the express statutory provisions and the substan
tive determination of the common law obligation by the
state court raised similar constitutional questions under
the Fourteenth Amendment. In fact, this Court stated:

“ Since the conviction on the fifth count was not based
upon a statute, but presents a substantial question
under the federal Constitution, we granted the writ
of certiorari in respect of it.” (310 U. S. 266 at p.
301.)

Again, at pp. 307-308:
“ Decision as to the lawfulness of the conviction (on
the fifth count) demands the weighing of two con
flicting interests. The fundamental law declares the
interest of the United States that the free exercise
of religion be not prohibited and that freedom to
communicate information and opinion be not
abridged. The state of Connecticut has an obvious
interest in the preservation and protection of peace
and good order within her borders. We must de
termine whether the alleged protection of the State’s
interest, means to which end would, in the absence
of limitation by the federal Constitution, lie wholly
within the State’s discretion, has been pressed, in
this instance, to a point where it has come into fatal

40 3 1 0 U. S. 296.

collision with the overriding interest protected by the
federal compact.”

At the next term this Court, even more forcibly enunci
ated the requirement that decisions by state courts on sub
stantive matters satisfy the requirements of due process.
In Milk Wagon Drivers Union of Chicago, Local 753 v.
Meadowmoor Dairies, Inc.,41 this Court granted certiorari
to review an injunction of an Illinois court issued on the
authority of that state’s common law which prohibited
picketing, peaceful and otherwise, by a labor union. Despite
a disagreement among the members of the Court as to the
end result, it was agreed by all of the justices that the in
junction had to be tested against the limitations of the Four
teenth Amendment with respect to the protection of free
dom of speech. The majority, speaking through Mr. Justice
F ran kfu rter , was of the opinion that the violence which
had occurred outside of the picket line during the particu
lar labor dispute was sufficient ground to justify the Illinois
court in enjoining picketing, although admittedly the in
junction deprived the trade union of its right to dissem
inate information with respect to the labor dispute.

The dissent voiced by Mr. Justice B lack addressed itself
to the propriety of limiting the right of free speech because
of violence not directly shown to have occurred in connec
tion with the picketing. Both majority and minority, how
ever, applied to the injunction the test of the Fourteenth
Amendment. The unanimity in this Court on that proposi
tion was plainly manifested when on the same day a unani
mous Court again in American Federation of Labor v.
Swing,i2 tested another Illinois injunction, also issued on the
authority of the common law of that state, which restrained
peaceful picketing on the ground that the labor dispute was 41 42

41 312 U. S. 287.
42 3 1 2 U. S. 321.

not one between the complaining employers and Ms em
ployees. Measured in terms of the Fourteenth Amendment,
the Court concluded that this was an unlawful interference
by the state with the right of free speech of the members
of the trade union involved.43 44

So strong is this Court’s determination to protect
fundamental rights against invasion by the state judiciary
that even in criminal contempt cases it has tested the
validity of such convictions against the requirements of the
Fourteenth Amendment. Thus, in Bridges v. State of Cali
fornia,'1'1 the majority of the Court was of the opinion that
punishment of a trade union official and newspaper for con
tempt because of out of court statements, which had been
made with respect to litigation pending in the state court,
was a violation of the Fourteenth Amendment because it
was an unwarranted interference with the right of free
speech. The minority, disagreeing with respect to the un
reasonableness of the state’s action, readily agreed that the
conviction had to be tested against the limitations of the
Fourteenth Amendment.

Thus, both on analysis and on authority, it is plain that
the acts of state courts are those of the state itself within
the meaning of the limitations of the Fourteenth Amend

43 It is significant that in the Meadowmoor case, even the majority
recognized that if the effect of the violence which they deemed to be
controlling on the constitutional issue should be shown to have been
dissipated, the Fourteenth Amendment would require that the State
court dissolve the injunction there approved. To the same effect see
Bakery Drivers Local v. Wohl, 315 U. S. 769. See also Cafeteria
Employees Union, Local 302 v. Angelos, 320 U. S. 293, 294, where
it was said, “ W e brought these two cases here to determine whether
injunctions sanctioned by the New York Court of Appeals exceeded
the bounds within which the 14th Amendment confines State power.”
It should be noticed that neither of the cases referred to have the
State court relied on more for the common law authority for the
issuance of the injunction.

44 314 U. S. 252.

ment. Any other conclusion in a common law system would
be untenable. For, to the extent that the decisions of
courts serve as authoritative precepts regulatory of con
duct beyond the case in litigation, no logical distinction can
be drawn between between the acts of the legislature and
the decisions of the court. The creative role of the judi
ciary as a source of law to meet the demands of society by
filling the interstices between precedents, and between pre
cedent and legislation has long been recognized.45 Where
this Court is required to review the constitutionality of
State law, it is plain that:

“ Whether the law of the State shall be declared by
its legislature in a statute or by its highest court in
a decision, is not a matter of Federal concern.” 46

Judicial Enforcement of the Racial Restrictive Cove
nant Here Involved is a Denial by the State

of Michigan of the Petitioners’ Rights
Under the Fourteenth Amendment.

A. The Decree of the State Court Was Based
Solely on the Race of Petitioners.

Even a cursory examination of the record discloses that
the controlling operative fact relied upon by the state court
to justify ouster of petitioners from their home was their
race.47

45 Cardozo, The Judge as a Legislator, The Nature of Judicial
Process; Arthur L. Corbin, 29 Y ale L. Journal 771; See Swiss
Code, quoted by Cardozo, op. cit. 140.

46 Erie v. Tompkins, 304 U. S. 64.
47 Interesting enough the finding of race was based solely on evi

dence with respect to color (R . 22).

Pleadings, proceedings, and the opinion of the State
Supreme Court all demonstrate that under the law of the
state precedent required petitioners’ eviction if, and only
if, they were found to be of other than “ the Caucasian
race ’ ’.4S If the trial court had made the determination that
petitioners were Caucasians, they would be occupying their
home peacefully without threat of eviction.

At this period in the history of the United States, it is
no longer necessary to demonstrate that state action which
discriminates because of the race, color, religion or national
origin of persons subject to the state jurisdiction violates
the Fourteenth Amendment.

B. It is the Decree of the State Court Which
Denies Petitioners the Use and Occupancy of
their Home.

The foregoing authorities and analysis were urged upon
the highest court of Michigan in this case. Nevertheless,
that court refused to recognize its obligation to make a deci
sion which conformed to the requirements of the Fourteenth
Amendment in other than procedural matters. The court
stated:

“ While we recognize that the concept of 4due process’
is incapable of exact definition, yet, ever since Buck
v. Sherman, 2 Doug. 176, we have held that this con
stitutional right means that every person having
property rights affected by litigation is entitled to
notice, and a day in court, or a reasonable opportunity
to appear and defend his interest. * * # Such rights 48

48 The complaint alleged that the petitioners were of “ the Negro
race” (R . 8) ; the answer denied knowledge of their ancestry but de
manded strict proof (R. 10) ; evidence on both sides of this issue was
heard and the trial court made a specific finding with respect to the
matter (R . 53) found to be adequate by the State Supreme Court
(R . 61).

were accorded the defendants in the instant case”
(R. 65-66).

Not only on the basis of sound legal analysis is this Court
obliged to test the decree of the state court in this case
against the limitations of the Fourteenth Amendment, but
the facts and surrounding circumstances dictate the neces
sity of such an inquiry, because it is the action of the court
which will deprive the petitioners of their right to occupy
their property as a home.

It has already been shown that during the year 1934
certain residents and holders of title to property located
in Seebaldt’s Subdivision of the City of Detroit agreed that:

“ This property shall not be used or occupied by any
person or persons except those of the Caucasian
race. ’ ’

Subsequently, as is the usual case in connection with urban
property, title to some of the fifty-three lots sought to be
covered by this restrictive agreement passed into the hands
of persons other than the original signers of the restrictive
agreement. One such person, for reasons neither appearing
in the record nor material to the issue here, conveyed title
to Lot 52 to petitioners, fully complying with all of the re
quirements of the law of Michigan with respect to the trans
fer of title in fee to that piece of property.49 *

Thereafter petitioners and their family moved into the
dwelling and occupied the premises as their home. Sub
sequently, other signers of the restrictive agreement, or

49 It is admitted that the federal constitution did not preclude the
owner of any piece of property sought to be covered by such an agree
ment from freely picking and choosing among the persons whom he
would permit to use or occupy his property as guests, lessees or pur
chasers on the basis of race, religion, color, personality, education,
occupation or on the basis of absolute whim and utter caprice.

persons privy thereto, instituted the present action to evict
petitioners from their home. Thus, the mere existence of
the agreement was not sufficient to prevent petitioners and
their family from making their home in these premises.
Instead, respondents sought the aid of state authority to
accomplish the purpose which they had been unable to effect
by the execution of the restrictive agreement.

Theoretically, there were four other alternative courses
which respondents or some of them could have taken. They
might have sought to persuade petitioners to move out, and
the record shows that an attempt in this direction was made
(E. 22). It was unsuccessful. There was, of course, nothing
unlawful about such conduct, nor did it raise any constitu
tional question, since truly this was the conduct of indi
viduals with respect to other individuals.

As a second alternative they might have used force or
threats of force to cause petitioners to move out. There
can be no doubt but that this course would have brought
down upon respondents the full force of the state authority
to prevent injury to the persons or property of petitioners.

Taking a more peaceful tack, respondents might con
ceivably have applied to the state legislature to exercise its
authority to oust petitioners from the premises in question
by enacting statutes which would have compelled all persons
to respect “ racial characteristics” of established neighbor
hoods. This Court long ago decided that any such legisla
tive action would violate the Fourteenth Amendment.51

51 Buchanan v. Warley and others. Even such an ingenious device
as the one reviewed by the Texas Supreme Court in City o f Dallas v.
Liberty Annex Corp., 295 S. W. 591, failed under this prohibition.

Recourse to the active police authority of the state might
have been undertaken to eject petitioners, but there can be
no doubt that the executive arm of the state government
would have been obliged to conform to the limitations of
the Fourteenth Amendment.02

This record is barren of any indications that it is any
thing other than the decree of the state court which operates
to deny to petitioners the right to occupy as their home the
premises to which they hold title. The decree of the Circuit
Court affirmed by the Supreme Court of Michigan ordered
petitioners to move from their property within ninety days
and declared that they “ are hereby restrained and enjoined
from using or occupying said premises” (R. 53). The
covenant did not prevent petitioners from purchasing, using
and occupying their property.

It is not the private respondents, but the State of Michi
gan, acting through its courts, that prevents petitioners
from using and occupying their property. Failure of the
petitioners to comply with the order of the Court would set
in motion governmental machinery leading to contempt
citations and imprisonment in the jails maintained by the
State of Michigan.

C. Neither the Existence of the Restrictive Agree
ment Nor the Fact That the State’s Action Was
Taken in Reference Thereto Alters in Any W ay
the State’s Responsibility Under the Fourteenth
Amendment for Infringing a Civil Right.

The existence of a legal right to acquire a home from
any willing seller and to own and occupy that home has
already been demonstrated under Point II of this brief. 52

52 Home Telegraph v. Los Angeles, 227 U. S. 278; Yick W o v.
Hopkins, 118 U. S. 356,

That right is recognized by the Constitution and laws of the
United States and the decisions of this Court. Its exercise
is protected by the Fourteenth Amendment against any
racial impediment imposed by any form of state action.

In this case, it appears to be the position of respondents
that only the private covenantors do the discriminating
while the state, as an impartial, if essential, third party
merely enforces the private agreement without concern for
its content, as it allegedly would do in any other business
agreement. However, the role and responsibility of the
state in sanctioning or refusing to sanction such an agree
ment or any agreement cannot be divorced from the subject
matter of the agreement. Under our system of law, judicial
action in such a case as this can only be the result of the
judge’s conclusion that he is vindicating some interest or
interests of public concern and worthy of the state’s pro
tection.

The history of restrictive covenants as outlined in Point
I of this brief clearly shows the judicial balancing of in
terests as new doctrine emerged. In the present case, the
action of the courts below must have been predicated upon
a conclusion that it was a matter of serious’public concern
to compel the carrying out of bargains in general and to
protect the private interest of the respondents in getting
the benefit of their bargain in this case. The state courts
failed, however, to recognize their duty to weigh these claims
tending to induce state action against essential interests
adversely affected by enforcement of the agreement as well
as against the obligation of the state to protect the civil right
involved in this case.

The predominance of social interests adverse to enforce
ment has given rise to the entire body of the illegal and
unenforceable contracts. The recognition of such interests
here, as they are developed in Point Y of this brief, would

have resulted in a conclusion that the agreement was against
public policy. But more significant, at the present stage of
the litigation, is the fact that this Court, in a group of
recent cases, has held that the desire of the state to promote
well-recognized and accepted private and public interests
must be subordinated to the obligation of the state to respect
fundamental constitutionally protected civil rights.

In Cantwell v. Connecticut,53 the desire to protect what
the state understandably considered important public and
private interests led the state court to invoke common law
doctrine definitive of breach of the peace and to impose
criminal sanctions against the defendant. However, in so
doing, the state court caused the interests which appealed
to its judgment to prevail over a fundamental civil right.
This Court concluded that the abridgement of that civil
right though made in favor of substantial competing inter
ests could not stand—the constitutionally protected civil
right had to be respected even if some sacrifice of other
interests of legitimate concern was a necessary result.

The means employed by the court can be reasonably
considered as being adapted to the accomplishment of this
legitimate end. Similar basic considerations underlay the
injunction in American Federation of Labor v. Swing.5* In
addition, there was legitimate public concern with protect
ing the interests of the employer in maintaining and operat
ing his business. But in this case again, as in the Cantwell
case, the state’s concern to protect property and to pre
serve peace and good order when translated into judicial
action came “ into fatal collision, with the overriding inter
ests protected by the federal compact’ ’.55

53 310 U. S. 296.
54 312 U. S. 321.
55 3 1 0 U. S. 296, 308.

In Marsh v. Alabama,60 the concern of the state in assist
ing the owner of land to exclude others from his property
and the general interests of the state in peace and good
order could not override the right of the individual to exer
cise his fundamental and constitutionally protected liberty
of speech and worship. A significant analogy under the
National Labor Relations Act is presented by Republic Avi
ation Corp. v. National Labor Relations Board.56 57 There
this Court struck down the application of a general rule of
the employer against solicitation on his property, ap
parently imposed in good faith and for reasonable purposes,
to a situation where solicitation of union membership had
occurred on the employer’s parking lot at lunch time. The
employer was not permitted to exercise normal and reason
able control over the use of his property when the conse
quence. was the abridgement of a federally protected right.

In each of these cases, the state court concluded that
public interests of substance were being prejudiced and in
jury was being suffered by private persons. With an eye
solely to such considerations it regarded any effect which
its judgment might have upon a civil right as an unavoid
able and unintended incident of action which had ample
justification. Yet, in none of these eases could the state
escape the obligation of squaring its action with the over
riding mandate of the Fourteenth Amendment or other
source of fundamental rights regardless of the consequence
of such squaring to other interests. No more can the pro
tection of the plaintiffs here from the loss of the value of
their bargain, or the vindication of any other public interest
which the state court may deem important, justify the state’s
interference with the petitioners’ right of access to a home
free from all impediment based on race.

56 326 U. S. SOI.
57 324 U. S. 793.

The Fact That Neither Petitioners Nor Their
Grantors W ere Parties to the Covenant Further
Emphasizes the State’s Responsible and Pre
dominant Role in the Action Taken Against
Them.

Petitioners’ grantors have not at any time agreed to
refrain from selling their property to Negroes. The restric
tive agreement upon which the court predicated its order
directing petitioners to move from their home was signed
in 1934 by predecessors in title of petitioners’ grantors.
Neither petitioners nor their grantors are parties to the
agreement.

If any doubt exists as to the extent or significance of
state action involved in court enforcement of a racial re
strictive agreement as to occupancy of land between original
parties to the agreement, an examination of the history of
“ covenants running with the land” reveals that insofar as
they impose obligations on third persons, such covenants'
are wholly the creature of equity.

The development of the various devices to give sub
stance to restrictions on use of land has been fully discussed
in Point I of this brief. Here it is important to note that,
in the words of Dean (later Chief Justice) Stone, they have
their origin in contract “ and their nature and extent de
pend upon the extent to which equity will compel compli
ance with the covenant, not only by and for parties to it,
but by and for third persons. * * * ” 58

Further, it is asserted that in creating the doctrine of
equitable servitudes as transferable choses in action, equity

58 Stone, “ Equitable Rights and Liabilities of Strangers to a Con
tract,” 18 Col. L. R ev. 295.

exercised broader power than the common law had con
templated, for:

“ It is obvious that equity in enforcing the burden
of the contracts on third persons had departed from
the rules of property, because of their inadequacy
and inapplicability to certain situations.” 58

Since the rights thus enforced against third persons find
their basis in the powers of courts of equity alone,

“ A legitimate limitation on the doctrine of the
equitable burden is the rule that such contracts will
be strictly interpreted and the rule that equity may,
in its discretion, refuse relief where owing to the
change of conditions, enforcement of the restrictive
covenant would be very burdensome to the defendant
and of little benefit to the plaintiff. ” 59 60

The chose in action created by the contract was not at
common law freely transferable, but equity overcame this
obstacle by holding that, “ the transferee of the cove
nantee’s land is by operation of law vested with the right
to enforce the covenant.” 61

Dean (later Chief Justice) Stone, concluding his survey,
finds proof in this doctrine that equity is still a live and
forceful field of jurisprudence:

“ Consideration of the ways in which equity has
extended the rights and liabilities of third persons
will lead to the conclusion that, as an effective in
strumentality for expanding and developing our law,
equity is in no proper sense decadent, but is rather
a vital force.” 62

59 Ibid., p. 322.
60 Ibid., p. 323.
61 Stone, “ Equitable Rights and Liabilities of Strangers to a Con

tract,” 19 Col. L. R ev. 177, 182.
62 Ibid., p. 191.

Should it be argued that between parties to such a re
strictive agreement, as presented here, the courts have
some extraordinary power to make a party keep his promise
without regard to the Fourteenth Amendment, there is not
even colorable basis for such an evasion of constitutional
obligation where the enforcement runs against persons not
party to the agreement. If, as between the original parties,
any significance can be attached to the fact that the Court
is giving effect to the will of the parties, in the case of a
third person not a party to the contract the court is im
posing upon those who never have assented an extraordinary
obligation of its own devising. In the latter case—the
instant case—the state, through its court of equity, becomes
in a very special sense the creative and moving force, solely
responsible for the abridgement of the grantor’s power of
disposition and the grantee’s power of acquisition.

D. Petitioners’ Right to Relief in This Case Is Not
Affected by the Decision in Corrigan v. Buckley.

In both the trial court and in the Supreme Court of
Michigan, petitioners pressed the contention that judicial
enforcement of the covenant would violate the Fourteenth
Amendment (E. 6, 17). The latter court disposed of this
contention in the following manner:

“ It is argued that the restriction in question vio
lates the 14th Amendment to the Constitution of the
United States. Appellees say that this argument was
answered in Corrigan v. Buckley, 271 U. S. 323 (70
L. ed. 969). We so read the Corrigan case, although
that decision partly turned on the inapplicability of
the equal protection clause of the 14th Amendment to
the District of Columbia, and the appeal was dis
missed for want, of jurisdiction” (E. 66).

In like manner, judicial enforceability of racial restric
tive covenants has generally been assumed to follow from

Corrigan v. Buckley.™ A reexamination of that case will re
veal that there has been widespread misconception of its
holding, and will demonstrate that the issue here presented
was neither presented nor decided there.

In 1921, 30 white persons, including the plaintiff and
the defendant Corrigan, who owned 25 parcels of land situ
ated in the City of Washington, executed and recorded an
indenture in which they mutually covenanted that no part
of these properties should be used or occupied by, or sold,
leased or given to, any person of the Negro race or blood,
for a period of 21 years. During the ensuing year, defen
dant Corrigan entered into a contract to sell to defendant
Curtis, a Negro, a parcel included within the terms of the
indenture. Plaintiff thereupon brought suit praying that
defendant Corrigan be enjoined during the term of the in
denture from conveying to defendant Curtis, and that de
fendant Curtis be enjoined from taking title to the lot dur
ing such period, and from using or occupying it. Defen
dant Corrigan moved to dismiss the bill on the grounds that
the “ indenture or covenant made the basis of said bill”
is (1) “ void in that the same is contrary to and in viola
tion of the Constitution of the United States,” and (2) “ is
void in that the same is contrary to public policy.” Defen
dant Curtis moved to dismiss the bill on the ground that it
appeared therein that the indenture or covenant “ is void,
in that it attempts to deprive the defendant, the said Helen
Curtis, and others o f property, without due process of law;
abridges the privilege and immunities of citizens of the
United States, including the defendant Helen Curtis, and
other persons within this jurisdiction (and denies them)
the equal protection of the law, and therefore, is forbidden
by the Constitution of the United States, and especially by
the Fifth, Thirteenth, and Fourteenth Amendments thereof, 63

63 271 U. S. 323.

and the Laws enacted in aid and under the sanction of the
said Thirteenth and Fourteenth Amendments.” This mo
tion was overruled. Defendants elected to stand on their
motions, and a final decree was entered enjoining them as
prayed in the bill. An appeal was taken to the Court of Ap
peals for the District of Columbia64 where the issue was
stated as follows:

“ * # * The sole issue is the power of a number
of landowners to execute and record a covenant run
ning’ with the land, by which they bind themselves,
their heirs and assigns, during a period of 21 years,
to prevent any of the land described in the covenant
from being sold, leased to, or occupied by Negroes”
(299 F. 899, 901). (Italics ours.)

After affirmance by the Court of Appeals, an appeal was
taken to this Court;65 based entirely upon defendants’ con
tention that the covenant was void because it violated
the Fifth, Thirteenth and Fourteenth Amendments of the
Constitution and Section 1977, 1978, and 1979 of the Re
vised Statutes (U. S. Code, Title 8, Sections 41, 42 and 43).
This Court affirmed and in so doing established the follow
ing propositions (numbers ours):

(1) “ Under the pleadings in the present case the only
constitutional question involved was that arising
under the assertions in the motions to dismiss that
the indenture or covenant which is the basis of the
bill, is ‘ void’ in that it is contrary to and forbid
den by the Fifth, Thirteenth and Fourteenth
Amendments. This contention is entirely lacking

64 5 5 App. D. C. 30, 299 F. 899 (1924).
65 Section 250 of the Judicial Code (36 Stat. 1159), as it read on

the critical date, authorized appeals in six sorts of cases, including
(Third) “ cases involving the construction or application of the Con
stitution of the United States * * * ” and (Sixth) “ cases in which
the construction of any law of the United States is drawn in question
by the defendant.”

in substance or color of merit. * * # (The Court
pointed out that the Fifth and Fourteenth Amend
ments dealt only with governmental action and not
with the action of private persons, and that the
Thirteenth Amendment dealt only with involun
tary servitude) * * * It is obvious that none of
these amendments prohibited private individuals
from entering into contracts .respecting the control
and disposition of their own property; and there is
no color whatever for the contention that they ren
dered the indenture void * * * (271 U. S. 323, 330).

(2) “ And, plainly, the claim urged in this Court that
they were to be looked to, in connection with the pro
visions of the Revised Statutes and the decisions of
the courts, in determining the contention, earnestly
pressed, that the indenture is void as being ‘ against
public policy’, does not involve a constitutional
question within the meaning of the Code provi
sion * * * (271 IT. S. 323, 330).

(3) “ The claim that the defendants drew in question
the ‘ construction’ of sections 1977, 1978 and 1979 of
the Revised Statutes, is equally unsubstantial. The
only question raised as to these statutes under the
pleadings was the assertion in the motion inter
posed by the defendant Curtis, that the indenture is
void in that it is forbidden by the laws enacted in
aid and under the sanction of the Thirteenth and
Fourteenth Amendments. * * * they, like the Consti
tutional Amendment under whose sanction they were
enacted, do not in any manner prohibit or invali
date contracts entered into by private individuals
in respect to the control and disposition of their
own property. There is no color for the contention
that they rendered the indenture void; nor was it
claimed in this Court that they had, in and of them
selves, any such effect * * * (271 IT. 8. 323, 330-331).

(4) “ And while it was further urged in this Court
that the decrees of the courts below in themselves
deprived the defendants of their liberty and prop

erty without due process of law, in violation of the
Fifth and Fourteenth Amendments, this conten
tion likewise cannot serve as a jurisdictional basis
for the appeal. Assuming that such a contention,
if of a substantial character, might have constituted
ground for an appeal under paragraph 3 of the Code
provision, it was not raised by the petition for the
appeal, or by any assignment of error, either in the
Court of Appeals or in this Court; * * * (271 U. S.
323,331).

(5) “ * * • we cannot determine upon the merits the.
contentions earnestly pressed by the defendants in
this court that the indenture is not only void be
cause contrary to public policy, but is also of such
a discriminatory character that a court of equity will
not lend its aid by enforcing the specific enforce
ment of the covenant. These are questions involv
ing a consideration of rules not expressed in any
constitutional or statutory provision, but claimed
to be a part of the common or general law in force
in the District of Columbia; and, plainly, they may
not be reviewed under this appeal unless jurisdic
tion of the case is otherwise acquired.
“ Hence, without a consideration of these questions,
the appeal must be, and is dismissed for want of
jurisdiction” (271 IT. S. 323, 332). (Italics ours.])

So it is crystal clear that this Court did not and could
not pass upon the constitutional propriety of judicial en
forcement of a racial restrictive covenant. Such ques
tion could only be considered if the Court had acquired
jurisdiction and had examined the case on its merits. While
the Corrigan v. Buckley decision contains an intimation by
way of dictum that no substantial constitutional question
was presented by the facts of that case, it is to be remem
bered that this Court was not then committed to the doc
trine that common law determinations of courts could con
stitute reviewable violations of the Federal Constitution.

V
While No State-Sanctioned Discrimination Can Be

Consistent With the Fourteenth Amendment, the
Nation-Wide Destruction of Human and Economic
Values Which Results From Racial Residential
Segregation Makes This Form of Discrimination
Peculiarly Repugnant.

A. Judicial Enforcement of Restrictive Covenants
Has Created a Uniform Pattern of Unprece
dented Overcrowding and Congestion in the
Housing of Negroes and an Appalling Deteri
oration of Their Dwelling Conditions. The
Extension and Aggravation of Slum Conditions
Have in Turn Resulted in a Serious Rise in
Disease, Crime, Vice, Racial Tension and Mob
Violence.

1. The Immediate Effects of the Enforcement
of Covenants Against Negroes.

The race restrictive covenant is a relatively new device
which has become the vogue in conveyancing in many urban
centers of the North. Its use is increasing in epidemic pro
portions.1 Primarily it is employed to bar the Negro and
certain other minority groups from most residential areas,
and thus effectively limits the space and housing facilities
in which these Americans may live.

Ironically, the restrictive covenants thrive—indeed they
become possible—only where they do the most harm and
work the greatest injustice. The effects of these covenants
can be properly evaluated only if they are viewed against

1 Abrams, Discriminatory Restrictive Covenants— A Challenge to
the American Bar, address, before Bar Association of the City of New
York, February 19, 1947, pp. 1-2.

the background of rapid urbanization of the Negro popula
tion—a process which began to gather momentum with the
“ Great Migration” of World War I. In Detroit, for ex
ample, the decade between 1910 and 1920 saw 35,000 Negroes
pour into a city which previously had less than 6,000— an
increase of 600 per cent, in ten years. This accelerated trend
has continued ever since as the following table indicates:

Number and Per Cent of Negroes in the Total Population of
Detroit, 1910-40.

1910 1920 1930 (a> 1940 <b>

No. of Negroes 5,741 40,838 120,066 149,119
Per Cent of

Total Population 1.2% 4.1% 7.7% 9.2%
a Source: Bureau of Census, Negroes in the United States, 1920-32,

1935, table 10, p. 55.
b Source: Bureau of the Census, 16th Census, 1940.

This pattern is by no means peculiar to Detroit but is typical
of all of the large urban areas in the North.2

World War II occasioned another major movement of
Negroes to Detroit, the volume of which can best be com
prehended by considering the whole Detroit metropolitan
area rather than the city proper. This development, as
reflected by the data for non-whites (of whom over 95 per
cent were Negroes), is shown in the following table:

Number and Per Cent of Non-white Resident in Detroit
Metropolitan Area, 1940 and 1947.a

1940 1947
No. of non-whites 171,877 348,245
PerCent of non-whites 7% 13%
a Source: Bureau of the Census, Current Population Reports, Popu

lation Characteristics, Series P. 21, 1947.
2 Bureau of Census— Negroes in the United States, 1920-32, 1935,

table 10, page 55.

The recent war also occasioned the movement of an un
precedented number of Negroes to the West Coast. In Los
Angeles, the Negro population increased 108.7 per cent
from 1940 to 1946 3 and in San Francisco, 560.4 per cent
from 1940 to 1945.4 5

With each new wave of Negro migration into the cities
of the North, restrictive covenants hemming them into
limited areas of living, became more and more extensive.®
As the colored population grew, the supply of shelter dimin
ished. In the metropolitan district of Detroit, for example,
the non-white population, which constituted seven per cent
of the total in 1940, occupied seven per cent of the dwelling-
units in the area.6 By 1947, non-whites wrere 13 per cent,
of the residents in the metropolitan district but they occu
pied only 11 per cent of the dwelling units. In other cities,
including Chicago, Los Angeles, Washington, Baltimore,
Toledo and Columbus, where racial covenants are prevalent,
non-whites similarly failed to get a numerical share of exist
ing housing proportionate to their percentage in the total
population.7

While some individuals in most migrant groups found
escape from the slum and blighted areas as they improved

8 Special CenSus, Race, Sex by Census Tract, U. S. Census as of
Jan. 28, 1946.

4 Special Census, Race, Sex by Census Tract, U. S. Census as of
Aug. 1, 1945.

5 Weaver, Race Restrictive Housing Covenants, Journal of Land
and Public Utility Economics, Aug., 1944, p. 185.

6 It should be noted that the term “ dwelling unit” has a different
meaning when applied to housing occupied by white and by colored
people. Because of the high incidence of improvised conversions, and
great overcrowding in the Black Belt a dwelling unit there is often
no more than a single room.

7 See chart entitled “ Total Population, Non-White Population, Per
centage of Non-White * * * in Selected Northern and Border Metro
politan Districts, 1940 and 1947” in Appendix A, p. 92.

their economic and cultural status,8 the degree of concen
tration of Negroes has increased with the passing of time.9
Spatial separation of ethnic groups, which was temporary
for European immigrants and native white migrants, became
permanent for colored Americans. For the latter group
this separation was no longer occasioned by economic forces
alone. Residential segregation was not a voluntary matter
for Negroes; it was enforced. A neyr and distinctly Ameri
can ghetto was developing, and race restrictive covenants,
enforced by the courts, were the principal instrument in
institutionalizing this pattern in American cities.

In this situation, only two things could possibly happen.
Either the Black Belt could attempt to absorb more inhabi
tants or the areas available to Negroes could expand. The
prevalence and enforcement of restrictive covenants sharply
reduced the possibilities of expansion and free movement
of Negro families regardless of their income or cultural
level, thereby intensifying the overcrowding of already
densely populated Negro ghettos. This resulted in an alarm
ing decline in the living standards of a large segment of
our population.

(a) Overcrowding

The accepted standard by which the housing experts
measure overcrowding in dwellings is the relationship be
tween the number of persons and the number of rooms. A

8 The President’s Conference on Home Building and House Owner
ship, Report of Committee on Negro Housing, Negro Housing, 1932,
p. S’; Park, Burgess and McKenzie, The City, University of Chicago
Press, 1925, pp. 47-79; Burgess, Residential Segregation in American
Cities, Annals of the American Academy of Social and Political Sci
ence, November, 1928, pp. 108-12; Cressey, The Succession of Cul
tural Groups in the City of Chicago, University of Chicago, 1930
(A Ph.D. thesis in the Development of Sociology, pp. 58-9; 84-94,
tables VI, V III and X .

9 Cressey, op. cit., p. 94, table X I.

dwelling is regarded as overcrowded when there are fewer
rooms than there are persons to live in them.10 Measured
by this definition, 27 per cent of all housing occupied by
Negroes in the City of Detroit was overcrowded in 1944.11
Similarly, it is reported that in 1940, 24.8 per cent of all
dwelling units occupied by non-whites contained six or more
persons.12 It has been reliably estimated that if all Negro
families in Detroit in 1946 had been safely housed (and
here the very conservative average of four persons per
occupied dwelling unit was used as a standard), an addi
tional 19,000 dwellings for Negro occupancy would have
been required over and above the 35,000 in existence in
1940.13

The same situation of extreme density of population is
found in most of the other Northern urban centers.14 In
1943 density in the heart of the Chicago Black Belt had
reached 80,000 persons per square mile, so that into an area

10 Edith Elmer Wood, I ntroduction to H ousing, U. S. H. A.
Washington, 1939, p. 36.

11 T he People of Detroit, Master Plan Reports, Detroit City
Planning Commission 1946, p. 19. Of the overcrowded dwelling units
occupied by Negroes in Detroit, 9.2 per cent (as compared to 3.4
per cent of the total number of dwelling units) showed a ratio of
more than 1.5 persons per room.

12 Table 9, H ousing— General C haracteristics, Michigan, 16th
Census of the United States, 1940.

13 People of Detroit, ibid, footnote 11.
14Per"Cent of Total Dwelling Units With From 0.5 to 2 or More

Persons Per Room, in the North and West, 1940 a:

Urban North Urban West
No. of persons per room White Non-White White Non-White

0.5 or less ....................... 32.8 25.4 35.3 27.7
0.51 to 1.00 .................... 53.7 49.3 53.0 49.7
1.01 to 1.50 .................... 9.7 14.4 7.2 11.9
1.51 to 2.00 .................... 3.1 8.0 3.2 7.3
2.01 or m o re .................. 0.7 2.9 1.4 3.3

a Source: Housing, Vol. II, Part I, table 4, 16th Census of the United States.

of only 7% square miles there were compressed 300,000
colored Americans.15 In a sample study conducted in Chi
cago in 1944, it was found that 4.4% of the city’s dwelling
units were occupied by more than 1.5 persons per room,
whereas in an area (exclusively inhabitated by Negroes)
more than one-third of the dwelling units were so occupied.
The 75 structures in this sample area were designed—or
more accurately, converted—to house 135 families, but at
the date of inspection were occupied by more than two and
one-half times that number.16

The following chart showing the relative incidence of
overcrowding in white and Negro neighborhoods in a few
other cities in 1945 follows the same pattern:

Per Cent of Tenant Occupied Dwelling Units With More
Than 1.5 Persons Per Room, by Race, 1 9 4 5 a

White Negro
Cincinnati 6.9 15.3
Cleveland 1.9 8.7
St. Louis 5.1 20.2
Indianapolis 3.0 7.0

a Source: Special surveys of Census Bureau and Bureau of Labor
Statistics.

With respect to our Nation’s Capital, the information
contained in the brief submitted to this Court by the Peti
tioners in the cases of Urciola v. Hodge and Hurd v. Hodge,
shows most graphically the same appalling condition of
overcrowding in the Negro areas of Washington.17

15 Cayton, H ousing for Negroes, Chicago Sun, Dec. 13, 1943.
18 T he Slum . . . Is R ehabilitation Possible? The Chicago

Housing Authority, 1946, p. 15. (The area chosen was picked as
representative of Negro slum conditions, neither the best nor the
worst block in the Black Belt.)

17 Hurd- v. Hodge et al., No. 290, October Term, 1947; Urciola
et al. v. Hodge et al., No. 291, October Term, 1947.

The immediate effect of the enforcement of restrictive
covenants is abundantly clear from the statistical evidence.
Because Negroes have been unable to exercise their civil
right to move freely to new living quarters, the Black
Ghettos have become increasingly and dangerously over
crowded.

(b) Conditions of Dwellings

It is a corollary of overcrowded housing that the condi
tions of living inevitably fall far below the standards of
safety and health which every citizen has reason to expect.
The continuous process by which thousands of new Negro
migrants arrive annually in the Black Belts of our Northern
cities results in a perpetual deterioration in the living con
ditions of these people. The impact upon the Negro has
been disproportionately severe. He pays higher rentals for
inferior dwellings 18—inferior to the point of endangering
the lives and well-being of himself and his children. Be
cause of the discrimination practiced through restrictive
covenants, only a gmall portion of the total housing supply
is opened to the Negro and the opportunity of improving
his status, with respect to the barest necessities of living,
is cut off in deference to the “ private agreement” of his
white neighbors.

Viewing the condition of dwellings upon a nation-wide
basis, it will be seen from the 1940 Census that 83 per cent
of the dwellings occupied by Negroes were in need of major
repairs or contained plumbing deficiencies. The compar
able figure for white dwellings was 45 per cent. Twenty-six
per cent of the dwellings occupied by non-whites which
needed major repairs were without running water (9.2 was

18 Robinson, R elation Between Condition of D wellings and
R entals, by R ace, Journal of Land and Public Utility Economics,
August, 1946, pp. 299-302.

the ratio in white dwellings). In those non-white dwellings
which did not require major repairs, 35.5 per cent were
without running water as compared to 17.4 per cent of the
white dwelling's. While 59 per cent of all dwelling units
occupied by whites had private baths and toilets, these
necessities were found in only 20.5 per cent of non-white
dwellings.19

In the North and West, where there was less differential
in Negro and white incomes than in the South, the racial
differential in the quality of housing was outstanding, as is
shown in the following table.

State of Repair and Plumbing Equipment for Occupied
Dwelling Units in the North and West, by Race, 1940 a

Per Cent o f Total Units for Each Group

The North Total Whites Non-Whites

Needing major repairs or with
plumbing deficiencies..........

With plumbing deficiencies but
24.9 23.5 52.1

not needing major repairs . . 14.8 14.2 25.8
Needing major repairs .......... 10.1 9.3 26.3

The West
Needing major repairs or with

plumbing deficiencies..........
With plumbing deficiencies, but

20.1 19.6 36.9

not needing major repairs . . 11.2 11.0 18.6
Needing major repairs .......... 8.9 8.6 18.3

“ Source: Housing, Volume II, General Characteristics, Part I,
United States Summary, 16th Census of the United States,
tables 6b and 6c.

The condition of dwelling units among whites and non-
whites in the City of Detroit is graphically portrayed in a

19 Housing, Volume II, General Characteristics, Part I,
U nited States Summary, 16th Census of the United States, 1940.

recent report of the Bureau of The Census of the United
States Department of Commerce. The higher incidence
of substandard 20 dwellings among* non-whites is apparent
from the following chart drawn from this Census report:

A Comparison of the Condition of Dwelling Units in
The City of Detroit, 1947 3

White
Per cent

Non-White
Number Percent

Substandard............................. 9 % 26 ,269 31%
Needing major repairs .......... 3% 21 ,2 0 8 2 5 %
Lacking private bath ............ 1 % 6 ,2 6 6 8 %
Lacking private toilet .......... 5 % 5,784 7 %
No running water in unit . . . 1% 1,687 2 %

3 Source: Current Population Reports, Housing, Characteristics of
Detroit, Michigan, April, 1947, Bureau of the Census,
Series P/71, No. 19.

Of all of the substandard units in Detroit, those occu
pied by non-whites accounted for 33 per cent. This is to be
contrasted with the fact that the non-whites occupy only 11
per cent of all currently occupied units in the city.

In the heart of the Negro areas of Detroit, the condi
tions are even more deplorable. In census Area K, which
includes the so-called “ Black Bottom” and “ Paradise Val
ley” slums in which it is estimated 203,000 Negroes are
forced to live, sanitary engineers who recently checked the
area found that between 90 and 95 per cent of all houses
were substandard.21

20 Substandard is used herein to designate a dwelling needing major
repairs or lacking private bath, toilet or running water.

21 Velie, Housing: Detroit’s Time Bomb, Collier’s, November 23,
1946, p. 77.

A recent study of sixteen Northern and Western cities,
including Detroit, revealed that while only 16.5 per cent of
the white units were substandard (i. e. needing major re
pairs or with plumbing deficiencies), 44.9 per cent of the
non-white units were deemed to be substandard.22

This analyst finds: “ analysis of the relationship
between the condition of dwellings and rental value
for units occupied by white families and those occu
pied by non-white families reveals that the non-white
group receives proportionately more substandard
housing than does the white group for the same rent
or rental value.23

“ The differentials revealed in this analysis may
be imputed to the effect of residential racial restric
tions. This is supported by the fact that the pro
portionate differentials between the two racial groups
are greatest in the higher rental value brackets where
racial restrictive practices operate to maintain a
highly discriminatory market, and in the Northern
and Western cities where the in migration of non
whites from the South has accentuated racial re
strictive practices and greatly accelerated the market
in the constricted areas to which the non-white group
is arbitrarily confined.” 24

The following comparison between two sample blocks in
the City of Detroit is also revealing. The first block is
occupied exclusively by Negroes; the second exclusively by
whites. Although the rent of both of these blocks was al
most identical, the disparity of condition, density of popu
lation, and age of dwellings is great.

22 Robinson, Relation Between Condition o f Dwelling and Rentals
by Race, The Journal of Land and Public Utility Economics, Volume
X X II, No. 3, October, 1946, p. 297,

23 Ibid., p. 298.
24 Ibid., p. 302.

Characteristics of a Sample Negro-Occupied and
White-Occupied Block in Detroit, 1940

a .Sample
a

Block No. 14, Block No. 15,
Census Tract 537 Census Tract 566

(Negro occupied) (White occupied)

Average Monthly Rental .............. $23.41 $23.61
No. Dwelling units per structure

(approximate) ............................... 3 1
Per cent Dwelling units built before

1900 .................................................. 2.3 0
Per cent Dwelling units built before

1900 a fA 1919 ............................... 86.3 23.8
Per cent Dwelling units built be

tween 1920 and 1929 ................... 11.4 76.2
Per cent Dwelling units needing

major repairs or lacking private
bath facilities ................................. 97.0 10.7

Per cent Dwelling units with more
than 1.5 persons per room ........ 8.9 5.4

a Source: United States Census, Housing Supplement, Block Sta
tistics, Detroit, March, 1940.

It is apparent from these official statistics that the com
pression of one racial group within strict geographical
boundaries has overcrowded the inhabitants beyond en
durance. It is equally clear that in those cities which
represent the highest technological development of our
civilization, a large and important segment of our popula
tion lives in unparalleled squalor. These are the immedi
ate effects of restrictive covenants and the sanction given
to them.

2. The Results of Slum Conditions in Negro
Housing.

The restrictive covenant is the instrument by which the
normal expansion of living facilities available to Negroes
has been made impossible. The needs of Negroes have not

been met by new housing since a large proportion of this
housing is covered by racial covenants,25 and the areas occu
pied by colored Americans have been surrounded by racial
covenants, public facilities, or economic and industrial prop
erty. Thus, the supply of available shelter has never caught
up with the demand. The poorly housed have become more
poorly housed. The Black Belt in every city has become a
slum— the ultimate in the degeneration of the American
dwelling place.

The results of these conditions in terms of public wel
fare and community life are amply documented by public
record. This Court may take notice of the higher incidence
of disease, crime, vice, and violence in unhealthy and de
plorable living areas. It is here proposed to set out in
summary form some of the observations and conclusions of
experts in these special social fields with particular ref
erence to the conditions existing in the Negro ghetto.

The chain of causation is apparent ; these are the effects,
once removed, of the judicial sanction which the courts have
given to race restrictive covenants. There are the products
of enforced residential segregation.

a. The E ffect o f R esidential Segregation on Health.

It has been demonstrated above that residential segre
gation inevitably forces the segregated group into blighted
and overcrowded areas. These conditions in themselves
create a serious health hazard regardless of the economic
status of the segregated group. Authorities in the field of

25 A recent summary demonstrated that in 315 subdivisions opened
in the last 10 years in Queens, Nassau and Southern Westchester
(New York) over half the dwelling units were covered by racial cove
nants. See Architectural Forum, October, 1947, p. 16.

public health and public housing are agreed that bad housing
has a direct and disastrous result upon health.26

Frequent contact of large numbers of individuals in a
restricted area cause significant increases in respiratory
diseases.27 This is demonstrated by the high mortality
rates resulting from tuberculosis, pneumonia, influenza and
the common communicable diseases of childhood in over
crowded areas.28

The unsanitary condition and general dilapidation of
houses in blighted areas present another serious health
hazard. More graphically these hazards consist of inade
quate and filthy toilet facilities, rat and vermin infestation,
dampness, lack of heat and sunlight. These result in a high
incidence of diarrheal and digestive ailments. For example,
typhoid fever was 100% more frequent in slums; indigestion

26 W . J. Smillie, Preventive Medicine and Public Health (The
MacMillan Company, New York, 1946) ; “ Basic Principles of Health
ful Housing,” Committee on Hygiene of Housing of the American
Public Health Association; C. E. A. Winslow, Housing for Health
(The Milbank Foundation, 1941).

27 Britton, New Light on the Relation of Housing to Health, 32
American Journal of Public Health 193 (1942).

28 Thus:

The secondary attack rate for tuberculosis is 200% greater for
relief families living in overcrowded housing than for all income
groups living with less than one person per room.

(Britton, op. cit.)

The argument that Negroes have a higher susceptibility to
tuberculosis is offset by an analysis of the tuberculosis rate in
both Negro and white slum areas, showing that both have a
highly excessive incidence of the . disease.

( “ Report on Housing,” Chicago, Cook County Health
Survey; “ Health Data Book for the City of Chicago” ;
U. S. Census, 1940) ; Britton & Altman, “ Illness and
Accidents among Persons Living under Different Hous
ing Conditions,” 56 Public Health Reports 609 (1941).

6 0

and stomach ailments 75% more frequent; diarrhea, enter
itis and colitis 40% higher. These relationships hold even
if the economic factors were taken into account.29 These con
ditions also resulted in a high incidence of rheumatic fever,
the most common cause of heart disease among individuals
under 45.30 *

The infant mortality rate is the most sensitive single
index of health and progress. If such an index of social
conscience and progress is applied to the Negro people, it
is seen that they are excluded from the benefits of the Amer
ican way of life.

“ City-born babies, and those born in the towns,
have a slight edge on babies born in the country, in
their chance for survival. That comparison holds
true only for white children however; in the non
white group, which is mostly Negro, those born in
the rural areas have a better chance than those in
the urban areas, though still not anywhere near as
good a chance as the white child in either city or
country. The reason may be that the conditions
under which Negroes must live in the cities and towns
represent a hazard for babies that outweigh other
factors, such as more and better medical care and
access to hospitals, that tend to give the city born
child the advantage.” 32

29 Britton and Altman, Illness and Accidents Among Persons Living
Under Different Housing Conditions, 56 Public Health Reports 609
(1941).

30 Paul, The Epidemeology of Rheumatic Fever and Some of Its
Public Health Aspects, Metropolitan Life Insurance Co., 1943;
Wedum and Wedum, Rheumatic Fever in Cincinnati in Relation to
Rentals, Crowding, Density of Population and Negroes, 34 American
Journal of Public Health 1065 (1945).

32 “Our Nation’s Children,” No. 8, August, 1947, Federal Security
Agency, U. S. Children’s Bureau.

6 1

This statement is given grim reality by the tragic pat
tern of Negro infant mortality rates which are 65% higher
than for white babies in all areas of the United States.83

Despite the increased use of hospitals for child birth
throughout the cities of the United States, two or three
times as many Negro mothers die in child birth as white
mothers.* 34 35 36

The City of Detroit presents no variation in the nation
wide picture of the relation between residential segregation
and the high incidence of disease. Thus, the mortality rate
per 100,000 from tuberculosis in that city was 36.5 for whites
and 189.0 for Negroes during the period from 1939-1941.35
For pneumonia, the death rate for Negroes is 71.5 per
100,000, for whites 23.3 per 100,000. The infant mor
tality rate for Negroes is 49.8 per thousand, compared with
28.0 per thousand for whites.

In terms of citizenship, the psychological evils flowing
from segregated housing are equally as important to society
as the physical health hazards discussed above. Draft re
jection rates in the Second World War for personality dis
orders increased significantly in slum and overcrowded
areas.88 Furthermore, Negro draftees had the highest rates

83 Gover, Negro Mortality; II The Birth Rate and Infant and Ma
ternal Mortalities, 61 Public Health Reports 43 (1946). In New
York City with the most progressive health department in the country,
the Negro mortality rate is 50% higher than the white rate. Vital
Statistics, New York City Health Department, 1946.

34 Ibid.
35 Mortality from Tuberculosis, White and Non-white for Selected

Cities of 100,000 and Over— 1939-41, Tuberculosis in the United
States by National Tuberculosis Association and the U. S. Public
Health Service, 1945.

36 A study of Washington, D. C. draft rejection rates is found in
Hadley, et al. Medical Psychiatry; an Ecological Note, V II Psychia
try 379 (1944), and a study of Boston and surrounding areas is found
in Hyde & Kingley, Studies in Medical Sociology: The Relation of
Mental Disorders to Population Density, 77 N. E. Journal of Medi
cine 571 (1944).

for both psychoneurosis and psychopathy among national
and ethnic groups, a factor explained in the studies as re
lated to “ the intensity and severity of stress to which many
of the Negroes are subjected.” 87

“ The most all-pervading sense of frustration that
literally engulfs the Negro people in their caste re
lationship to the majority group and the mechanisms
of segregation and discrimination that are its attend
ant counterparts. * * * Caste is meant to refer to sys
tems of privilege and the limiting of spontaneous
participation in the culture of which the Negro people
are a part.

“ The typical American town has its black ghetto—
almost always situated on the other side of the track.
It is difficult, to stay there and more difficult to leave.
Overcrowding- and congestion become commonplace.
Individual privacy and respect for it disappears.” * 38 *

In a study of mental disorders in urban areas it was
demonstrated that social communication between population
groups was essential to healthy mental development, and
that social isolation of a given group led to increased mental
breakdown among its members.38

“ Bad housing, with its resultant overcrowding, tilth,
lack of personal and family privacy, its noises, its
odors and its dark and dirty corners, breaks down
family morale and has a profound and evil influence
upon the happiness, welfare and health of the
people.” 40

87 Hyde & Chisholm, Relation of Mental Disorders to Race and
Nationality, 77 N. E. Journal of Medicine 612 (1944).

38 Cooper, The Frustration of Being a Member of a Minority Group
29 Mental Hygiene 189 (1945).

89 Farris & Dunham, Mental Disorders in Urban Areas: An Eco
logical Study of Schizophrenia and Other Psychoses, U. of Chicago
Press, 1939.

40 Smillie, op cit.

In human terms, substandard housing means serious
interference with the emotional, mental and family life of
the individual:

‘ ‘ The Committee on the Hygiene of Housing has cor
rectly pointed out that more damage is done to the
health of the children of the United States by a sense
of chronic inferiority due to the consciousness of
living in substandard dwellings than by all the defec
tive plumbing which those dwellings may contain.” 41

b. Cost o f Residential Segregation to the Com m unity
as a W hole.

Municipal services rendered in slum areas cost far more
than the revenue collected.42 43 The Federal Works Agency
has summarized the situation in metropolitan centers. It
found that although slums and blighted areas comprised but
20 per cent of the residential area of the larger cities of
the nation in 1940, they housed a third of the people in these
cities. While these districts provided only six per cent of
the municipal revenue from real estate taxes, they absorbed
45 per cent of the service costs which municipalities had to
render.48 Translated into dollars and cents, this means that

41 C. E. A. Winslow: Housing for Health (The Milbank Founda
tion, 1941) ; see also Basic Principles o f Healthful Housing, supra.

42 There are many studies that reflect this fact. One of the pioneer
ing surveys is contained in Edith Elmer W ood, Slums and Blighted
Areas in the United States, U. S. Government Printing Office, 1935.
Other more recent summaries are available: See, Urban Housing,
Federal Emergency Administration of Public Works, 1937, pp, 8-10;
Mabel L. Walker, Urban Blight and Slums, Plarvard University
Press, 1938, pp. 36-63, 68-72 ; and statement of John B. Blandford,
Jr., at Hearings before the Subcommittee on Housing and Urban
Redevelopment of the Senate, 79th Congress, 1st Session, Part 6,
January 9, 1945, pp. 1233-7.

43 Postwar Urbak Development, Federal Works Agency, 1944.

a medium-sized city, such as Newark, New Jersey, spends
fourteen million dollars a year maintaining its slums.44 45

The total real estate taxes collected from a restricted
group are less than they would he if the group were free to
acquire and live in properties which carry higher assess
ments and yield greater tax revenues. These latter situa
tions increase the tax burden of the rest of the community.

As long as there was only a small proportion and num
ber of colored people with medium and high incomes, the
loss in city revenue was small.46 Changes in the occupational
color system occasioned by the war and continuing somewhat
in the peace, have altered the picture.46 Today in the larger
industrial centers there is an appreciable number of colored
families which can pay their way in housing and taxes. So
long as they are relegated to slums or contiguous blighted
areas, only a small proportion of them pay as high taxes as
they would were they able to secure attractive housing in
desirable neighborhoods. The result is a loss in city revenue
at the same time that the total population in the subsidized
areas of the city is increased.

44 Rumney and Shuman, The Cost of Slums In Nezvark, Housing
Authority of the City of Newark, second printing 1946, p. 15. “ W e
believe that part of this cost would remain even if these areas were
rehabilitated, for most residential areas require more in expenditures
than they yield in revenues. * * * But certain reductions could be
made in the cost of servicing low-income families despite their poverty
by eliminating slums” (Ibid., p. 16).

45 There were, of course, other economic costs most of which penal
ized the minority groups subjected to ghetto living. “ Segregation has
little effect on the great bulk of poor Negroes except to overcrowd
them and increase housing costs, since their poverty and common
needs would separate them voluntarily from whites, just as any Euro
pean immigrant group is separated. * * * The socially more serious
effect of having segregation, however, is not to force this tiny group
of middle and upper class Negroes to live among their own group,
but to lay the Negro masses open to exploitation and to drive down
their housing standard even below what otherwise would be econom
ically possible” (Myrdal, op. cit., p. 625).

46 Weaver, Negro Labor: A National Problem, 1946, Parts 1 and 2.

“ Unsolved, the Negro housing dilemma costs
Detroit heavily in other ways than jittery nerves.
Badly in need of a medical center, express highways,
parks and other deferred civic improvements, Detroit
must wait indefinitely for them. The land they will
occupy now houses hundreds of Negro families who
can’t be evicted because there’s no place for them to
go.? ? 7̂

Privately financed and publicly financed housing pres
ents problems in every American city. Political pressures
and litigation will increasingly challenge federal, state and
local aid to housing if it fails to offer equitable participation
to minorities. Since private enterprise has repeatedly
claimed, in its opposition to public housing, that it can offer
decent shelter for all groups as well as public housing in
the population, it will have to face the problem of opening
more space to colored people.47 48

So pressing is this matter that housing agencies are
beginning to study and analyze it, since they recognize that
the costs of residential segregation are as great if not
greater for city planning and urban redevelopment than for
the minorities already restricted to inadequate areas.

“ One thing seems clear. In most big cities any
housing, city planning or race relations program
that does not open up more land on which Negroes
may live is ineffectual. Any policy which results in
a net reduction either in land or houses available to
Negroes is a social menace. Every program to date,
low-rent housing, war housing, and now housing for
veterans has run up against this problem in one form
or another and been partly or wholly stymied by it.

47 Velie, Housing: Detroit’s Time Bomb, Colliers, November 23,
1946, p. 5.

48 Weaver, Planning for More Flexible Land Use, Journal of Land
and Public Utility Economics, February, 1947, p. 32.

6 6

And there is hardly any current urban redevelopment
proposal that should not be carefully scrutinized
from this point of view.” 49 50

c. R acial Residential Segregation Causes S egrega
tion in A ll A spects o f L ife and Increases G roup
Tensions and M ob V io len ce .

Even a superficial study of crime, juvenile delinquency
and health statistics shows that these are indications of
social instability greatly aggravated by poor housing and
overcrowding. Thus in Detroit, the total slum areas
yielded five times as many crimes, and fifteen times as many
criminals as a “ normal residential area.” 60 Since in 1947
Negroes occupied one-third of the total number of substand
ard units in Detroit, and those units housed a tremendous
percentage of the total Negro population, it would be fal
lacious to conclude that Negroes are undesirable. The De
troit City Planning Commission concludes from these facts
that where dependency, crime and juvenile delinquency
“ are concentrated in special areas, they are evidence that
the environment contributes to social pathology. ’ ’ 51

Paced with the responsibility of raising a family, the
Negro like any other human being, seeks to escape the con
sequence of ghetto life and establish a. home away from the
environment which results in these personal and social
tragedies. “ He has no other alternative if he would im
prove his housing situation, than to seek it in less densely

49 Race Relations in Housing Policy, National Public Housing Con
ference, 1946, p. 4.

50 Housing Facts, National Housing Agency, Washington, D. C.,
Jan., 1946, p. 21. The same study showed that slum areas in Cleve
land were responsible for 4 per cent of larcenies, 5.7 per cent of
robberies, 7.8 per cent of juvenile delinquency, 10.4 per cent of ille
gitimate births and 21.3 per cent of murders, while housing only 2.47
per cent of the City’s population.

51 The People of Detroit, Detroit Planning Commission, 1946, p. 30.

settled areas which are inhabited by whites.” 52 * * It is at
this point that the Negro’s normal desire for self improve
ments meets organized and judicially sanctioned opposition.

Of all the devices to effect residential segregation, re
strictive covenants are the most “ respectable,” and yet the
consequences are the most lasting and harmful. Covenants
are promoted by skillful propagandists of race hatred; they
reach and involve in anti-Negro activity large groups of
citizens who normally opposed violent racism but who par
ticipate in this activity because it is something “ lawful,”
and hence worthy of their support.58 Since upper-income
groups champion and sign race restrictive housing cove
nants, other groups, less able financially to develop similar
instruments, resort to less formal but equally effective
means of excluding minorities. As long as the “ better
people” in a community sign restrictions against certain
groups and the courts enforce such agreements, other ele
ments will “ protect” their neighborhoods against minori
ties too.

“ Racial segregation in residential areas provides
the basic structure for other forms of institutional
segregation. ’ ’ 55

It is recognized by authorities in city planning that the
basis for public services and institutions is the neighbor

52 The Police and Minority Groups, Chicago Park District, 1947,
p. 67.

58 For a documentary account of the atrocities of the promoters of
racial covenants see President’s Annual Report (for 1944) ; Oakland
Kenwood Property Owners Association (Chicago) 1945; Restrictive
Covenants, The Federation of Neighborhood Associations, Chicago,
1944.

55 Charles Johnson, Patterns of Negro Segregation (1943), p. 8.

6 8

hood, rather than the city.00 From the segregated neigh
borhood grow segregated schools, health and welfare ser
vices and innumerable “ Negro” institutions in areas of our
country where segregation as a way of life is legally re
jected.67

In the course of expansion of the ghetto, many second
hand public and semi-private institutions are turned over
to Negro use. Thus, regardless of laws banning racial seg
regation in public facilities, the enforced residential seg
regation of Negroes makes the large majority of these
facilities as completely segregated in Northern cities as
in the South, where segregation is fixed by statute.

Consequently, although many states in the North have
specific constitutional or statutory prohibitions against seg
regation in public schools, where there are definable Negro
neighborhoods, effective educational segregation is main
tained. 56 57 *

56 The Detroit City Planning Commission has stated:
“ The distribution of people within the city and region affects

directly the need for public and private facilities. Schools, parks,
utilities, shopping facilities, highways and transit must be located
where people can use them, whether they happen to be inside or
outside a given political boundary.

“ The optimum population has been estimated for each neigh
borhood on an assumption that land will be made available for
schools, neighborhood recreation and other community facilities
in accordance with accepted standards.” Source: The People of
Detroit, Detroit City Planning Commission (1946), p. 23.

57 Loren Miller, Covenants for Exclusion, Survey Graphic, Oct.,
1947, p. 558.

Myrdal observes that in many northern states:

“ * * * there is partial segregation on a voluntary
basis, caused by residential segregation aided by the
gerrymandering of school districts. * # * ” B8

Other public facilities are similarly segregated because of
the residential location of the population they serve.62

Because of residential segregation, there are created
Negro political districts and the political exploitation of
racist issues comes easily in such communities. General
interest in the over-all problems of democratic govern
ment are stifled and divisive racial “ blocs” are fostered.

The Detroit City Planning Commission has been seri
ously concerned with the need for better integration of
Negroes into the life of the City. Thus it states:

‘ ‘ The people are barred from full participation in
the general life of the community both by restrictions
from living in many desirable residential neighbor
hoods and by exclusion from social, religious and
other groups. To the extent that they are compelled
to form their own clubs, churches and business asso
ciations, they will undoubtedly remain a group with
strong feelings of racial identity and minority
status.” 63 * 82 83

88 Myrdal, An American Dilemma, 1944, p. 632. A recent study of
Negro life in Evanston, Illinois, established that most of the Negro
population lived in the Northern section of town, and that a zoning-
arrangement for school attendance, applicable only to that section,
effectively confined Negro children to a segregated school. Economic
and Cultural Problems in Evanston, Illinois, as They Relate to the
Colored Population, National Urban League, Feb., 1945, pp. 56-58.
High School students in Los Angeles, Gary and Chicago have staged
strikes in the past two years when Negro children were admitted to
what the white students had come to regard as “ white” schools. _

82 For description of the process of handing down health facilities
and the evils attendant upon segregated medical care, see W . Mon
tague Cobb, “ Medical Care and the Plight of the Negro,” Crisis, July,
1947, pp. 201-211.

83 The People of Detroit, Detroit Planning Commission, 1946, p. 34,

Enforced residential separation and resultant patterns
of segregation in other phases of American life reflect a
staggering human toll:

“ The * _* * pathological features of the Negro
community is of a more general character and grows
out of the fact that the Negro is kept behind the walls
of segregation and' is in an artificial situation in
which inferior standards of excellance or efficiency
are set up. Since the Negro is not required to com
pete in the larger world and to assume its responsi
bilities, he does not have an opportunity to ma
ture.” 64

The inevitable result of housing segregation is to per
petuate prejudice and heighten group tension.

“ As long as Negroes are relegated * # * to physi
cally undesirable areas # * they are associated with
blight. The occupants of the black belt are all be
lieved to be undesirable # * and their perpetual
and universal banishment to the ghetto is defended
on the basis of imputed racial characteristics.” 65

Racial covenants, once having been imposed upon a
neighborhood, give concrete substance and perpetuation to
latent opposition to Negroes. The Chicago police say that
the restrictive covenant wall binding the ghetto creates
areas of tension and conflict requiring special policing.66
Many analyses of racial conflicts have indicated that the
ghetto provides a fertile ground for seeds of racial tension,
which erupt into open conflict and riot. “ Since the very
existence of segregation results in diminished intergroup

64 E. Franklin Frazier, “ Negro Youth at the Crossways,” 1940
p. 290.

88 Weaver, Chicago, A City of Covenants, Crisis, March, 1946.
66 The Police and Minority Groups, Chicago Park District, 1947,

pp. 64-69— section dealing with residential segregation as a source of
group tension,

contact, prejudiced attitudes grow stronger and segrega
tion gains increasing popular acceptance. ’ ’ 87

Living reality was given to the assertion that inter-group
contact diminishes race tension and conflict by the Detroit
race riot of 1944. In the areas of mixed racial residence no
conflict was reported, and in the factories and shops where
Negroes worked side by side, there was reported not a single
instance of conflict.88

B. There Are No Economic Justifications for Re
strictive Covenants Against Negroes. Real
Property Is Not Destroyed or Depreciated
Solely by Reason of Negro Occupancy and
Large Segments of the Negro Population Can
Afford to Live in Areas From Which They Are
Barred Solely by Such Covenants. The Sole
Reason for the Enforcement of Covenants Are
Racial Prejudice and the Desire on the Part of
Certain Operators to Exploit Financially the
Artificial Barriers Created by Covenants.

It has frequently been asserted that the racial restrictive
covenant is no different in its social, economic and legal
effect from the other restrictive provisions commonly found
in deeds and conveyances. Thus, it is said that a grantor
may reasonably and properly provide that under no circum
stances shall his grantee utilize the property for industrial
purposes, for purposes which create obnoxious noises or
odors constituting a public nuisance, for purposes which
may endanger life and limb, for purposes which contravene

87 Weaver, Chicago, A City o f Covenants, Crisis, March, 1946, p.
18. See also B. T. McGraw, “ Wartime Employment, Migration and
Housing o f Negroes in the United States, 1941-44,” National Housing
Agency, Racial Relations Service Documents, Series A, No. 1, July,
1946.

88 What Caused the Detroit Riot, National Association for the Ad
vancement of Colored People, July, 1943.

the prevailing moral code or for other specific purposes
calculated to lower the value of surrounding property in
which the grantor may retain an interest. The proponents
of this view imply that there are in each case economic or
social justifications for the covenant imposed upon the per
son who receives the property.

Are there any such justifications for the racial restrictive
covenants f Is it true, as has been loosely alleged, that the
invasion of the Negro destroys the property! The evidence
compiled by housing and real estate experts is conclusive to
the contrary.

1. The Effect of Negro Occupancy Upon Real
Property.

This is the conclusion of one analyst:

“ Already there is a body of evidence which indi
cates that Negroes with steady incomes who are given
the opportunity to live in new and decent homes * # *
instead of displaying any ‘ natural’ characteristics to
destroy better property have, if anything, reacted
better towards these new environments than any
other groups of similar income. Colored tenants have
also displayed desirable rent-paying habits when
housed in structures designed to meet their rent-pay
ing ability. For 155 projects in 59 cities having two
or more FPHA-aided projects, at least one of which
is occupied by Negro tenants, the following results
are reported: Collection losses do not exceed one
per cent of the total operating incomes for a total of
142 of these projects, 72 of which are occupied by
Negroes and 70 by white or other tenants. Five of
the 13 projects showing rental losses in excess of one
per cent are tenanted by Negroes and 8 are tenanted
by whites or others. The collection loss records be
tween the two racial groups do not differ more than

one per cent in 51 of the 59 cities, and the records are
identical in 34. ’ ’ 69

The National Association of Real Estate Boards re
cently undertook a survey of Negro housing and found that
“ provision for good housing* for Negroes can be carried
out as a sound business operation and that the Negro family
that rents good housing is usually a good economic risk. ’ ’ 70
Three-fourths of the local Boards which participated in the
latter survey found no reason why large insurance com
panies would not freely purchase mortgages upon housing
occupied by Negroes.71

This same survey asked realtors if they thought that
Negroes were good economic risks and if Negroes did de
preciate property. Their answers can be summarized as
follows:

(1) Does the Negro make a good home buyer and carry
through his purchase to completion? * * * 17 of 18
cities reported yes.

(2) Does he take as good care of property as other ten
ants of comparable status? * * * 11 of the 18 cities
reported yes.

(3) Do you know of any reason w*hy insurance com
panies should not purchase mortgages on property
occupied by Negroes? * * * 14 of the 18 cities re
ported no.

(4) Do you think there is a good opportunity for realtors
in the Negro housing field in your city? * * * 12 of
the 18 cities reported yes,72

69 Weaver, R ace R estrictive H ousing Covenants, The Journal
of Land and Public Utility Economics, Vol. X X , No. 3, August, 1944,
p. 189.

70 Press Release No. 78, National Association of Real Estate
Boards, November 15, 1944.

71 Ibid.
72 Ibid.

There is no inevitable causal connection between race
and dwelling* conditions. In Washington, D. C., a small
number of colored families moved about 50 years ago into
Brookland, a desirable suburban section of the City. Most
of them were Government employees and had stable and
respectable incomes. Just prior to the recent war, many
new homes were built in the area by Negroes at a cost of
from $7,500 to $25,000. These houses are better designed
and constructed than most of the existing dwellings in the
neighborhood and their occupants are of a higher edu
cational and cultural level than the majority of their white
neighbors. The property values in Brookland have increased
not only in the Negro community, but also in the contiguous
white areas.78

Another such model community can be found in middle-
class Westchester County of New York State.74 New York
City also contains persuasive evidence that the color of the
skin of the tenants is not the determining factor in the rise
of standard of dwelling conditions:

“ Closest approach to satisfactory housing for
Negroes in New York’s five boroughs, according to
William L. Carson, a realtor with long experience
in the area, is the Williamsbridge section in the
Bronx. Most wage earners, here, have incomes of
$3,000-4,000 per annum, most are Civil Service em
ployees, many own their own homes, although some
are rental tenants. Although seriously affected by
the housing shortage, the Williamsbridge community
has uniformly higher standards of dwelling condi
tions than are to be found in overall surveys of the
other colored centers. The result is a total absence
of hoodlumism, buildings kept in good condition, no

______ evidence of slums (present or future) and a general
78 Weaver, Race Restrictive Housing Covenants, The Journal of

Land and Public Utility Economics, VoL X X , No. 3, Aug., 1944, p. 191.
74 Mummy and Phillips, Negroes as Neighbors, Common' Sense

April, 1944, p. 134.

standard of living not much below that of average
white families of comparable income. ’ ’ 75

A similar comparison was made recently in Philadel
phia, where a section recently entered by colored people .was
selected for study and the selling prices before and after
Negro occupancy were computed in a single block. The
conclusion, as reported in an article entitled “ Colored Oc
cupancy Raises Values,” was as follows:

“ The average sales price for the standard property
in average condition, before colored occupancy was
between $2,800 and $3,200. Today (September 1945)
about six months after the first colored occupancy
purchases, the average value for the same property
is $4,500 to $5,000, with exceptional houses selling up
to $5,500 and $6,000.76
* . # * # # * # #

“ If we trace the development of the newer colored
neighborhoods, we wall find that as a new section
opens up closer to the suburban section, the better-
educated and higher-income group colored move there
from a less desirable section. * * * Thus, there is a
gradual stepping up and development of the newer
colored sections. This has all led to the increase in
value in these sections and has stabilized all of these
neighborhoods. As the process of colored expansion
proceeds, the stepping-up process will continue to
increase values in these newly developed colored
sections.” 77

The origin of the fallacy that the presence of Negroes
creates a decline in property values has its historical roots
in the fact that Negroes are traditionally relegated to al
ready deteriorated neighborhoods or live under such eon-

75 T he U rban Negro: F ocus of the H ousing Crisis, Novem
ber, 1945, p. 11.

78 Beebler, Color O ccupancy R aises V alues, The Review of the
Society of Residential Appraisers, Sept., 1945, p. 4.

77 Ibid., p. 6.

ditions of overcrowding (due to restrictions) as to occasion
physical decay of property. In Detroit, for example, most
of the principal Negro area was built before 1919 and an
appreciable part of it before 1900.79

The Philadelphia Chapter of the Society of Residential
Appraisers and the Wharton School of Finance conducted
a joint survey in 1939 and found that no houses occupied
by Negroes in Philadelphia could be classified as being in
good residential neighborhood:

“ By the time colored occupancy spreads to any
neighborhood it is at least 30 years old and has the
characteristics of physical and functional obsolescence
that remove it from the category of a good neighbor
hood. ’ ’ 80

Although it is often assumed because a particular neighbor
hood once housed the rich, that it was a first-class residen
tial community when it was taken over by colored people,
the evidence reveals, however, that in most instances the
area had already been deserted by its original inhabitants
and had started on the road to deterioration long before
Negroes entered.81

79 H ousing— A nalytical M ap, Detroit, Michigan, 16th Census
of the United States, 1940.

80 Stern, “ Long Range Effect Colored Occupancy,” The Review of
the Society of Residential Appraisers, January, 1945, p. 5.

81 With respect to Chicago, see Cressey, supra, pp. 267-268; with
respect to Harlem in New York City, see Kiser, Sea Island to City ,
Columbia University Press, 1932, pp. 19-20. This comment on the
Harlem situation is also significant:

“ Some have been foreclosed by the lending institutions as many
as twelve times, resold for the full amount of the mortgage (for
which a new mortgage is issued) and three to four thousand in
cash. The new owner could readily perceive his inability to pay
off a mortgage far greater than the value of his building; set
about getting his original $3-4,000 back, plus whatever he could
take before the bank again foreclosed on the property. To this
end, he jacks rents to the limit, cuts operating and maintenance
to the very bone.”— T he U rban Negro: Focus of the H ous
ing Crisis, Oct., 1945, p. 13.

One other objective factor in value depreciation has been
noted by economists. Our building industry has generally
deemed it expedient to concentrate on the upper-income
group. Since there are not as many families in this group
as in the middle and lower-income groups, “ the oversupply
of houses (in terms of capacity to pay, not in terms of need),
must be absorbed by families whose income is lower than
the income of families for whom houses were designed. This
means a sizeable depreciation in value must take place. ’ ’ 82

Available and valid data are cumulative confirmation
of the proposition that when economic factors are kept con
stant, there are no noticeable differences in the quality of
property maintenance, conditions of occupancy, and neigh
borhood standards on property values which can be directly
traced to race.83

2. The Ability of Negroes to Pay for Better
Housing.

It is also frequently asserted in support of racial re
strictive covenants that few, if any, Negroes can afford to
pay for decent housing. The restrictive covenant is there
fore said to be nothing mure than a formal crystallization
of existing economic facts. It is argued that the Negro who
can afford to move out of the Black Belt is so exceptional
that a change in existing methods and procedures is not
indicated.

82 Newcomb and Kyle, T he H ousing Crisis in a F ree E conomy,
Law and Contemporary Problems, Winter, 1947, p. 191.

83 This is supported by the experience of the public housing pro
gram, the few desirable areas occupied by Negroes in cities, such as
Washington, Philadelphia, and New York and in the small number
of well designed medium-rental housing projects available to Negroes
— such as the Paul Lawrence Dunbar Apartments in New York City
and the Michigan Boulevard Garden Apartments in Chicago.

This contention also fails to meet the test of analysis.
In the first place, it should be noted that Negroes pay much
higher rentals for the quarters which they currently occupy
than do white persons in comparable units.84

Not only do Negroes pay more for desirable housing,
as illustrated by the studies of Robinson and Beebler cited
above, but they usually pay higher rents than whites for
even the least desirable types of shelter. This has recently
been substantiated for the City of Detroit:

“ In his crowded flat or room in blighted Black Bot
tom or Paradise Yalley, the Negro pays 30 to 50 per
cent more than whites pay for better quarters. A
family jammed into a single room, sharing toilet
facilities with six other families (the legal limit in
Detroit is two, but is unenforced) will pay (in 1946)
from $11 to $16 weekly or $47 to $69 per month.
Before rent ceilings came, landlords tripled and
quadrupled monthly incomes by evicting white fami
lies and renting to Negroes.” 85

Moreover, Negroes spend a larger proportion of their
income for rent than white persons in the same income
group. These facts are brought into sharp relief by the
result of a study of housing in Chicago:

“ Negro residents of the Chicago ‘ black belt’ pay
as much per cubic foot per room as that paid by
wealthy residents for equivalent space on Lakeside
Drive.” 86

84 For a summary of earlier data supporting this statement, see,
Thomas J. Woofter, N egro Problems In Cities, 1928, pp. 82-87,
121-30. More recent data are presented in Moron, Where Shall They
Live?, The American City, April, 1942, and Beebler, Color Occu
pancy Raises Values, The Review of the Society of Residential Ap
praisers, September, 1945.

85 Velie, op. cit. p. 75.
86 Cayton, N egro H ousing IN Chicago, Social Action, April 15,

1940, p. 18.

Whatever may have been the differential in earnings
between Negroes and whites in the lower and middle income
groups prior to World War II, the industrial effort in con
nection with the war tended to eradicate such differential.
New and better paying jobs were open to Negroes, both
men and women, and earnings in all job classifications were
increased.87 Consequently, great numbers of Negro workers
and many Negro professional and business men and women
who are dependent upon the Negro community, as well as
those Negroes who recently have secured white collar and
professional jobs in the larger economy are now able to
pay for decent housing. Consequently the number of poten
tial Negro purchasers and tenants of decent housing is
greater than formerly.

The failure of housing to meet the needs of the Negro
workers has been due not to the insufficient economic means
of the applicant, but rather to the lack of building sites and
the consequent inability of government agencies, to erect,
or to effectively encourage private industry to build new
housing for Negroes. The National Housing Authority, in
order to meet the problem, threatened to withdraw priori
ties unless Negro housing was constructed, and as a result,
realtors, builders and financial institutions suddenly “ dis
covered” a new Negro market for housing. A typical state
ment of this new condition is contained in a monograph
published by the National Housing Authority itself:

“ Current employment facts make evident an in
creasing number of Negroes in those income brackets
which provide a profitable market for private enter
prise housing. There is evidence that, in addition to
their patriotic war bond purchases through volun

87Weaver, N egro L abor: A National Problem, pp. 78-93
112-130.

tary payroll deductions, their experience in the last
depression have motivated increased savings among
Negroes. The National Association of Beal Estate
Boards, the National Association of Home Builders,
and others, now recognize that they have overlooked
this growing market for decent housing among
Negroes.” 88

The first administrator of the NHA, John B. Blandford,
Jr., in the fall of 1944, spoke of “ the barriers which exist
even for the Negro citizen who can pay for a home, and,
if permitted, could raise a family in decent surroundings,”
and specified “ site selection, of obtaining more ‘ living
space, ’ ’ ’ and net income as the principal one.89

In 1945 a national survey of the housing market, which
covered 41 cities and involved 9,200 interviews with Negroes
living in congested and blighted areas, found that almost
40% of these persons were paying between $50 and $60 a
month for rent. Of the entire group of persons inter
viewed, 43% were willing to buy new homes and 65% of
them had savings of more than $1,000.90

A similar study was made in a sample slum area in Chi
cago and the results were as follows: 91

No. of
Tenants %

Average
Rent

Rent Paid as
% of Income

Pay More Than Can
Afford ..................... 24 8.4 $30.00 25.7

Pay As Much As Can
Afford ..................... 159 55.5 32.00 21.3

Willing To Pay More 104 36.1 27.00 15.4
88 B. T. McGraw, W artime E mployment, M igration and H ous

ing of Negroes in the U nited States, 1941-1944, Racial Relations
Service Documents, Series A , # 1 , N HA, July 22, 1946.

89 John B. Blandford, Jr., The Need for Low Cost Housing, A
speech before the Annual Conference of the National Urban League,
Columbus, Ohio, Oct. 1, 1944, p. 1.

90 Detroit Free Press, March 20, 1945.
91 T he Slum . . . I s R ehabilitation Possible? Chicago Housing

Authority, 1946, p. 17.

The Bureau of Labor Statistics of the U. S. Department
of Labor has very recently made a survey of Negro
Veterans of World War II, their incomes and their needs
and desires with respect to the occupancy of dwelling units.
The results of this survey in Detroit, for example, indicate
very graphically the extent to which many Negroes could
enter the housing market if they were not excluded there
from artifieally. I f housing is available during the next
twelve months, only at present price and quality, 21 out of
every 100 Negro veterans would buy or build, and 15 would
plan to move and rent. If they could find what they wanted,
49 out of every 100 would buy or build (as contrasted to 22
out of every 100 in the total population), and 14 would move
and rent. Those who would buy or build, if they could find
what they want, reported that the average or medium price
which they could afford was $5,500 and % of them could
pay $6,000 or more.92 Certainly, these statistics do not sup
port the proposition that the inhabitants of the Black Belt
of Detroit are, of necessity, required to remain in sub
standard housing for lack of economic means.

The following chart is drawn from the Bureau of Labor
Statistics survey mentioned above. A similar survey with
respect to the St. Louis area issued on May 19, 1947, and
two surveys issued by the Bureau of the Census of the De
partment of Commerce relating to all World War II vet
erans have been made.

92 Survey of N egro W orld W ar II V eterans and V acancy
and O ccupancy of D welling U nits A vailable to N egroes in
the Detroit A rea, M ichigan , January, 1947, U. S. Department
of Labor, May 20, 1947, p. 1.

D etroit St. L ouis

All® Negro b All c Negro d
Living in Rented Rooms,

Trailers, or T o u r i s t
Cabins ........................... 17% 16% 00 7%

Living in Ordinary Dwell-
ing U n its ....................... 83% 84% 92% 93%
Doubled Up ................. 19% 22% 22% 31%
Not Doubled Up.......... 64% 62% 70% 62%
Substandard * ............ 6% 26% 19% 63%

Median Gross Rent.......... $43.00 $39.00 $32.00 $24.00
Plan to Move ** ............ 31% 63% 25% 35%

To Rent ....................... 9% 14% 13% 25%
To Build or B u y ........ 22% 49% 12% ' 10%

Median Gross Rental They
Could Pay ................... $46.00 $40.00 $39.00 $25.00

Median Price They Could
Pay ............................... $6,300 $5,500 $6,500 $3,800

* Substandard: Needing major repairs or unfit for use, or lacking private bath
or toilet, or running water in the dwelling unit.

** Plan to move if housing is available at the price and quality veterans desire.
a Ibid.
b S urvey of W orld W ar II V eterans and D welling U nit V acancy and

Occupancy in the D etroit A rea, M ichigan , U. S. Department of Com
merce, October 31, 1946, p. 1.

c S urvey of W orld W ar II V eterans and D welling U nit V acancy and
O ccupancy in the St. L ouis A rea, M issouri, U. S. Department of
Commerce, November 26, 1946, p. 1.

<1 Survey of N egro W orld W ar II V eterans and V acancy and O ccupancy
of D welling U nits A vailable to N egroes in St. L ouis A rea, M issouri
and Illinois N ovember-D ecember, 1946, V. S. Department of Labor, May
19, 1947, p. 1.

At the end of the war, income distribution among colored
American citizens in the northern urban centers more
nearly approximated that obtaining for the entire popula
tion than ever before. The number and proportion of Ne
groes well above the subsistence level had increased greatly.
The sampling of Negro veterans referred to above is ample
demonstration of this tendency. Racial restrictive cove
nants, at least insofar as Negroes are concerned, cannot be
justified on the grounds of inability to pay:

“ The peculiar intensity of the housing problems
of Negroes is not due to their disporportionately low

incomes alone. The really distinctive factor under
lying these problems stems from the fact that, among
the basic consumer goods, only for housing are Ne
groes traditionally excluded from freely competing
in the open market. Consequently, not only do the
majority of Negroes live in low-rent substandard
housing, but even when colored families can afford
rents which normally assure decent shelter, they are
often denied it.” 93

There is no validity to the assumption that racial re
strictive covenants can be justified in terms of the eco
nomics of residential real estate. Negro occupancy does
not in itself destroy or depreciate the property. Large
numbers of Negroes can afford to enter the free housing-
market. The only significant economic fact which the avail
able data confirm is that traditionally Negroes have been
forced to pay a larger portion of their income and a larger
absolute price for smaller value and for substandard dwell
ing. Racial prejudice and the desire to profit by it are at
the root of all restrictive covenants aimed at Negroes.

Thus Negroes are able to pay for better housing in large
numbers, but the wall of racial covenants that surrounds
their areas of concentration and excludes them from most
newly constructed surburban housing prevent their secur
ing it. This is no temporary phenomenon of a general hous
ing shortage. It is an historic fact and will persist as long
as racial covenants are enforced by the courts and given
“ respectability” by implied legality.I Such a situation not
only extracts gross social and economic- costs from Negroes
and the whole community, but it accentuates the frustrations
of colored Americans that inevitably follow from the color-
caste system.

93 Weaver, Chicago: A City of Covenants, Crisis, , March,
1946, p. 76.

Judicial Enforcement of This Restrictive Covenant
Violates the Treaty Entered Into Between the
United States and Members of the United Nations
Under Which the Agreement Here Sought to Be
Enforced Is Void.

By Articles 55 and 56 of the United Nations Charter,
each member nation of that body is pledged to take joint
and separate action to promote:

“ Universal respect for, and observance of human
rights and fundamental freedoms for all without dis
tinction as to race, sex, language or religion. ’ ’

While the Charter 'recognizes the sovereignty of the mem
bers, it states at the outset:

“ All members, in order to insure to all of them
the rights and benefits resulting from membership,
shall fulfill in good faith the obligations in accordance
with the present Charter. ’ ’ 1

This solemn international compact was described by the
Michigan Supreme Court as merely, “ indicative of a desir
able social trend and an objective devoutly to be desired by
all well-thinking people” (R. 67).

In addition to the decisions of this Court defining human
rights to include the right of colored persons to own and
use property,2 the provisions of the United Nations Charter
have been similarly construed by authorities.3 For example,

1 United Nations Charter, Article 2, Paragraph 2.
2 See Point II of this brief.
3 See January, 1946 issue of 243 Annals of the American Academy

of Political and Social Science, on “ Essential Human Rights,” par
ticularly articles by Edward R. Stettinius, Jr., p. 1, Charles E. Mer-
riam, p. 11.

the American Law Institute interprets the provisions of
Article 55 to include the right of every person to adequate
housing.4

The United Nations Charter is a treaty, duly executed
by the President and ratified by the Senate (51 Stat. 1031).
Under the Constitution such a treaty is the “ supreme Law
of the Land” and specifically, “ the Judges in every State
shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.” 5 6

In the face of this provision, the Michigan Supreme
Court stated that it is not a principle of law that a treaty
between sovereign nations, “ is applicable to the contractual
rights between citizens when a determination of these rights
is sought in State courts” (R. 67).

Historically, however, no doubt has been entertained as
to the supremacy of treaties under the Constitution. Thus
Madison, in the Virginia Convention, said that if a treaty
does not supersede existing state laws, as far as they con
travene its operation, the treaty would be ineffective.

“ To counteract it by the supremacy of the state
laws would bring on the Union the just charge of
national perfidy, and involve us in war. ’ ’ 0

More recently, in holding that the public policy of New York
against confiscation of private property could not prevent
the United States from collecting a debt assigned to it by
the Soviet Government in an exchange of diplomatic corre
spondence, this Court stated:

“ Plainly the external powers of the United States
are to be exercised without regard to state laws or

4 American Law Institute, 243 Annals of the American Academy
of Political and Social Science. See also in the Annals, C. Wilfred
Jenks, “ The Five Economic and Social Rights,” pp. 43-45.

5 Article VI, Section 2.
6 3 Elliots Debates 515.

policies. * # * In respect of all international negoti
ations and compacts, and in respect of our foreign
relations generally, state lines disappear. As to such
purposes the state of New York does not exist. Within
the field of its powers, whatever the United States
rightfully undertakes, it necessarily has warrant to
consummate. And when judicial authority is invoked
in aid of such consummation, State Constitutions,
state laws, and state policies are irrelevant to the
inquiry and decision. ’ ’ 7

Early in the history of our foreign relations, treaty
obligations of the federal government operated to affect the
common law and statutory rights of American citizens to
inherit property,8 to rely upon a rule of admiralty law,9 and
to void the defense that a debt revived by treaty had been
paid to the state which had expropriated it during the Revo
lution.10

The treatment of minority citizens within the border of
a sovereign state is the proper subject of international
negotiations and is a subject directly affecting international
relations. The question arose, in view of the Nazi extermi
nation policy, whether, “ sovereignty goes so far that a
government can destroy with impunity its own citizens and
whether such acts of destruction are domestic affairs or
matters of international concern.” 11 That question was
resolved by the human rights provisions of the United
Nations Charter, and by the subsequent adoption by the
United Nations General Assembly of a resolution affirming

7 U. S. v. Belmont, 301 U. S. 324, 331.
8 Hauenstein v. Lynham, 100 U. S. 483; Geoffroy v. Riggs, 133

U. S. 258. This doctrine has been strongly reiterated in Clark v.
Allen, 67 Sup. Ct. 1431 (Advance Sheets).

9 The Schooner Peggy, 5 U. S. 103.
10 Ware v. Hylton, 3 Dali. 199.
11 Raphael Lemkin, “ Genocide as a Crime under International

Law,” Am. J. of Int. Law, Vol. 41, No. 1 (Jan., 1947), p. 145.

the principles that genocide is a crime under International
Law whether committed by private individuals, public of
ficials or statesmen.12 This resolution changes fundamen
tally the responsibility of a sovereign nation toward its
citizens.13 While the Nuremberg trials were confined in
scope to acts committed after the commencement of war or
in preparation for it, the inclusion of persecution of German
nationals in crimes against humanity indicates that the field
of international affairs has been broadened to include do
mestic activity of a nation.

Official spokesmen for the American State Dej)artment
have expressed concern over the effect racial discrimination
in this country has upon our foreign relations and the then
Secretary of State Stettinius pledged our government be
fore the United Nations to fight for human rights at home
and abroad.14

The interest of the United States in the domestic affairs
of the nations with whom we have signed treaties of peace
following World War II can be seen from the provisions in
the peace treaties with Italy, Bulgaria, Hungary and Ru
mania, and particularly with settlement of the free territory
of Trieste, in all of which we specifically provided for gov
ernmental responsibility for a non-discriminatory practice
as to race, sex, language, religion, and ethnic origin.15

12 Resolution of General Assembly of United Nations, Dec. 11, 1946.
13 Lemkin, op. cit., p. 150.
14 McDiarmid, “ The Charter and the Promotion of Human Rights,”

14 State Department Bulletin 210 (Feb. 10, 1946) ; and Stettinius’
statement, 13 State Department Bulletin, 928 (May, 1945). See also
letter of Acting Secretary of State Dean Acheson to the F. E. P. C.
published at length in the Final Report of F. E. P. C., reading in part,
“ the existence of discrimination against minority groups in this coun
try has an adverse effect upon our relations with other countries.”

15 See description of these provisions in, “ Making the Peace Trea
ties, 1941-1947” (Department of State Publications 2774, European
Series 24) ; 16 State Department Bulletin 1077, 1080-82.

The Potsdam Declaration provided for the abolition of
all Nazi laws establishing racial or religious discrimination,
“ whether legal, administrative or otherwise.”

This growth in international law has established that
it is now proper for the executive arm of the United States
Government to enter into treaties affecting the treatment of
citizens of the United States within its own boundaries.
There was never any question, however, that at all times the
United States could by treaty protect and extend the rights
of nationals of other states residing in this country, and as
to covenants running against the foreign born of many na
tions, such power has always existed.

The Supreme Court of Michigan stated (R. 67) that
treaties do not affect the contractual rights between citi
zens “ when a determination of these rights is sought in
state courts.” Such a contention was reviewed and re
jected by this Court in Kennett v. Chambers,1® where this
Court declared void a contract under which an American
citizen sought to collect sums due him under an agreement
by which he furnished funds to equip a Texan to fight
Mexico during the life of treaties of friendship and comity
between Mexico and this country. This Court held the con
tract void, saying:

“ These treaties, while they remained in effect,
were the Supreme law and binding not only on the
government but upon every citizen. No contract
could lawfully be made in violation of their provi
sions. For, as the sovereignty resides in the people,
every citizen is a portion of it, and is himself person
ally bound by the laws which the representatives of
the sovereignty may pass or the treaties they may
enter within the scope of their delegated authority
* * * It is his own personal compact as a portion of
the sovereignty in whose behalf it is made” (p. 50). 16

1655 U. S, 38, See algo: Mayer v, White, 65 U. S, 317.

In an early case, this Court held that an American citi
zen who had acted as master of a foreign vessel privateer
ing against Spanish ships could not be, “ recognized in our
courts as a legal claimant of the fruits of his own wrong” in
libel proceedings, because of treaty provisions between this
country and Spain.17

This principle was applied to an attempted enforce
ment of a deed restriction against leasing to Chinese and a
federal judge there said that the restriction was void be
cause it contravened the terms of a treaty by which Chinese
subjects were accorded all the rights, privileges and im
munities accorded citizens of the most favored nation.18

Within the framework of our federal form of govern
ment, there may be fields in which enabling legislation is re
quired to implement the solemn obligations of the human
rights sections of the United Nations Charter. But the
decisions of this Court leave no doubt that a contract by its
own terms violative of the treaty obligations of the United
States is void.

Even were it not established that the individual’s right
to enter into contracts in violation of treaties is restricted,
certainly such contracts cannot be enforced by resort to
the power of the state’s judiciary since the states have di
vested themselves of all authority in connection with in
ternational relations and have agreed that for their mutual
protection, this authority must be vested solely in the fed
eral government.

Such a decision was reached by the Court of another
member of the United Nations, the Ontario Supreme Court,
when it held unenforceable a restriction against ownership

17 The Bello Corrunes, 19 U. S. 152.
18 Gandolfo v. Hartman, 49 Fed. 181.

of land by, “ Jews or persons of objectionable nation
ality.” 19

The attempt by the courts of the various states to aid
private individuals in the prosecution of a course of action
utterly destructive of the solemn treaty obligations of the
United States must be struck down by this Court or America
will stand before the world repudiating* the human rights
provisions of the United Nations Charter and saying of
them that they are meaningless platitudes for which we re
ject responsibility.

Conclusion

This Court in 1917 declared unconstitutional efforts of
the states to establish residential segregation by legislative
enactments. Residential segregation by state court enforce
ment of racial restrictive covenants has spread over large
areas and has excluded numerous groups. Continued en
forcement of these covenants will firmly establish ghettos
in this country.

Respondents’ only basis for relief is the racial restrictive
covenant which is ineffective without state action through its
courts. The only basis for the decree of the courts of Michi
gan is the race of petitioners. If all other facts in the pres
ent record had been the same except that petitioners
happened to be members “ of the Caucasian race,” the same
courts of Michigan would have used all of the resources of
the State of Michigan to protect them fully in their right to
use and occupy their property.

The enforcement of racial restrictive covenants clearly
violates the Fourteenth Amendment. The denial to peti
tioners of their rights guaranteed by the Fourteenth Amend

19In Re Drummond Wren, 4 D. L. R. 674 (1945).

ment is a part of a general pattern of enforcement of
similar covenants blanketing large sections of our country.
This case is not a matter of enforcing an isolated private
agreement. It is a test as to whether we will have a united
nation or a country divided into areas and ghettos solely
on racial or religious lines. To strike down the walls of
these state court imposed ghettos will simply allow a flexible
way of life to develop in which each individual will be able
to live, work and raise his family as a free American.

It is the protection by the Oonstitutioii of this basic
human freedom which makes possible the functioning of a
democratic economic and political system based on private
property.

W herefore, it is respectfully submitted that the judg
ment of the Supreme Court of Michigan should be reversed.

Submitted by,

T hurgood Marshall,
L oren M iller,
W illis M. Graves,
F rancis D ent,

Counsel for Petitioner,

W illiam H. H astie,
Charles H. H ouston,
George M. J ohnson,
W illiam R. M ing, J r .,
J ames N abrit, J r.,
M arian W yn n P erry,
Spottswood W . R obinson, I I I
A ndrew W einberger,
R uth W eyand,

Of Counsel.

Petitioners’ Appendix A

Total Population, Non-White Population, Percentage of Non-White Population and Percentage of Total Dwelling Units
Occupied by Non-Whites in Selected Northern and Border Metropolitan Districts, 1940 and 1947.

.Metropolitan District Total Population a
Non-White
Population a

Per Cent, of
Non-White in Total

Population a

Per Cent, of Total
Dwelling Units

Occupied by
Non-Whites b

1940 1947 1940 1947 1940 1947 1940 1947
New York-Northern New Jersey 11,014,511 11,669,409 675,969 1,015,002 6 8 6 8
Chicago ........................................ 4,499,126 4,644,640 329,157 447,370 7 10 7 8
Los Angeles ................................. 2,904,596 3,916,875 127,477 240,375 4 6 4 4
Philadelphia ................................. 2,898,644 3,372,690 317,285 439,410 7 13 7 11
Detroit .......................................... 2,295,867 2,702,398 171,877 348,245 7 13 7 11
Pittsburgh .................................... 1,994,060 2,100,092 115,423 131,052 6 6 6 6
St. Louis ...................................... 1,367,977 1,584,044 150,088 239,470 11 15 11 15
Baltimore : .................................... 1,046,692 1,306,040 188,106 284,383 18 22 16 18
Washington .................................. 907,816 1,205,220 215,398 285,988 24 24 19 20
Seattle............................................ 452,639 602,910 15,417 24,090 3 4 3 3
Portland, Ore................................. 406,406 534,422 6,696 11,268 2 2 1 2
Youngstown ................................. 372,428 380,897 23,008 29,915 6 8 6 8
Columbus ...................................... 365,796 432,304 38,246 40,795 9 11 9 8
Akron ............................................ 349,705 423,539 14,317 27,343 4 6 4 5
Toledo .......................................... 341,663 383,418 15,245 20,196 4 5 4 4

a Source: Current Population Reports, Population Characteristics, U. S. Bureau of the Census, Series P. 21, 1947.
b Source: Current Population Reports, Housing, U. S. Bureau of the Census, Series P. 71, 1947.

The 1940 figures are based on 16 Census enumerations for April, 1940; the 1947 figures are U. S. Census estimates for April, 1947.

[6302]

L awyers P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300

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McGhee v. Sipes Brief for Petitioners

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