SEGREGATION OF RESIDENCES OF NEGROES

Authors

Arthur T. Martin, Ohio State University

Abstract

Most white people do not want Negroes for neighbors. For many years this race prejudice alone seemed adequate to secure the type of domiciliary segregation which the majority desired. In recent years, however, Negro incursions into so-called white territory have become more numerous, and white landowners have resorted to legal devices to secure race exclusiveness in residential sections. In considering the validity of these segregation devices the courts have not ordinarily purported to take into account the social desirability of the end sought. No examination has been made of the factors back of Negro migration into white territory. No thought has been given to the problem of where the Negroes of our communities are to live. The social advantage or inevitability of race diffusion as against segregation has not been weighed. Traditional legal standards such as the due process clause of the Fourteenth Amendment, and the Rule Against Restraints on Alienation together with the usual supporting data are apparently all the material which a court uses to determine the validity of a segregation device. Legal rules of this type do not furnish a definitive basis for the disposition of controversies. They are generalities which do no more than suggest the extremes of legal validity and invalidity. Adjudication of litigation which does not fall at either of these poles must depend ultimately on something outside of the rules themselves. In cases of Negro segregation it would seem that this controlling factor should be an appraisal of the social desirability of the device in question. Probably this is an influence in the decision of some of these cases but the opinion would be much more convincing if it showed as much appreciation of the social phenomena of Negro migration in the twentieth century as it does of the fifteenth century pronouncements of Littleton on the restraining of alienation.

Recommended Citation

Arthur T. Martin, SEGREGATION OF RESIDENCES OF NEGROES, 32 Mich. L. Rev. 721 (1934).
Available at: https://repository.law.umich.edu/mlr/vol32/iss6/2