Response or Comment
The opinion in Buchanan v. Warley reflects the confusion and difficulty of that troublesome problem, the place of the negro race in the United States, with which the case and the segregation ordinance of Louisville discussed therein are essentially concerned. The decision by a unanimous court reverses the holding of the Kentucky Court of Appeals, and declares that the ordinance violates the Fourteenth Amendment. This result is reached by one of those anomalous and objectionable devices which characterize our methods of solving fundamental constitutional questions. The case arose upon a bill for specific performance of a contract, whereby the plaintiff, a white man, agreed to sell, and defendant, a colored man, agreed to buy certain real estate situated in a block in which the majority of houses were occupied by white people. The defense was based upon a provision of the contract to the effect that the purchaser should not be required to perform unless he had "the right under the laws of the State of Kentucky and the City of Louisville to occupy said property as a residence," and upon the ordinance above referred to. That ordinance, approved May 11, 1914, in effect prohibits any colored person to move into and occupy, as a residence, or to establish and maintain as a place of public assembly, any house upon any block upon which a greater number of houses are occupied for such purposes by white people than by colored people. Another section contains the converse of this prohibition; and by still another the location of residences and of places of assembly made, and the continued occupancy of such premises begun by white or colored persons, prior to the approval of the ordinance, are expressly excepted from the scope and effect thereof. It would be difficult to frame an ordinance which should accomplish any measure of segregation, with more restricted scope or less effect upon property rights than this one. If the present decision shall stand, therefore, it would seem that race segregation by legal compulsion, at least in cities, must be abandoned as a vain effort.
Bates, Henry M. "Race Segregation Ordinance Invalid." Harv. L. Rev. 31 (1918): 475–9.