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I am curious about the apparent success of ethnically restrictive laws on residence or property ownership after the fourteenth amendment was ratified.

Hansberry v. Lee, 311 U.S. 32 (1940) ruled that a restrictive covenant violated due process.  But that was a covenant, not a law, and the ruling only protected sellers, not buyers, and only those who had not signed the covenant.

Shelley v. Kraemer, 334 U.S. 1 (1948) had similar limitations.

Oregon for a time had laws prohibiting blacks from living in the territory, and I've heard rumors of laws prohibiting Chinese from owning property. What (if any) were the court challenges to such laws on the basis of “equal protection”?  (Particularly interested in any prior to 1940.)

In section one, ”no State shall … deny to any person within its jurisdiction the equal protection of the laws“ would seem to me to prevent disallowing Chinese from applying for naturalization or buying property (unless they are outside the jurisdiction).

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  • The big cutoff is Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Before that de jure segregation was allowed under federal law due to the separate but equal doctrine in a variety of contexts. Closely related and longer lived was the practice, sometimes government encouraged, of redlining. en.wikipedia.org/wiki/Redlining
    – ohwilleke
    May 20, 2023 at 0:25
  • I don't approve of redlining, but at the moment I'm wondering about actual laws that violated equal protection.
    – WGroleau
    May 20, 2023 at 4:10
  • Redlining was mandated by government agency regulations.
    – ohwilleke
    May 20, 2023 at 13:02

1 Answer 1

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Prior to Shelley v. Kramer, racial covenants were considered to be outside the scope of the 14th Amendment, because as stated in Corrigan v. Buckley, "the prohibitions of the Fourteenth Amendment 'have reference to state action exclusively, and not to any action of private individuals'". Therefore, a private agreement to exclude blacks does not run afoul of the 14th Amendment. The Shelley court also noted:

But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.

This leads to the primary holding of this case:

We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand.

That is, the racially-restrictive agreements are not themselves forbidden by the 14th Amendment, but enforcement of such agreements is forbidden. An obvious question is, why had nobody advanced that argument before, but legal arguments often suffer from the forest / trees disability.

As far as I have been able to determine, that part of the Oregon Constitution excluding blacks became a legal nullity when the 14th Amendment was ratified, though it remained in the Constitution until 1926. The various anti-Chinese laws which were enforced were not enforced against Chinese who were citizens, see US v. Wong Kim Ark.

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  • FWIW, the doctrine of Shelley v. Kramer that judicial enforcement of private agreements constitutes state action has subsequently been largely disavowed (or at least vastly narrowed) by the case law outside the context of racially restricted covenants.
    – ohwilleke
    May 20, 2023 at 0:22
  • This is a pretty good answer, though was it never argued that "no person" (in what I quoted) really means "no citizen"?
    – WGroleau
    May 20, 2023 at 4:03

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