Overruled (8 page)

“Before 1914,” the historian David M. Kennedy has written, “the Germans had been probably the most esteemed immigrant group in America, regarded as easily assimilable, upright citizens. Now they found themselves the victims of a brainless fury that knew few restraints.”
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In retrospect, some of that wartime fury now appears comical, such as when self-professed American patriots rejected the use of German-derived words and began referring to their hamburgers as “liberty sandwiches,” or when the city of Pittsburgh banned the music of Beethoven on account of the composer's German heritage. But it was no laughing matter in April 1918 when a mob near St. Louis snatched up a young man of German descent named Robert Prager, stripped him, wrapped him in an American flag, and murdered him before a crowd of several hundred onlookers. “In spite of excesses such as lynching,” observed the
Washington Post,
in a report filed after several of the mob's alleged ringleaders were acquitted of Prager's killing, “it is a healthful and wholesome awakening in the interior of the country.”
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“Witch hunt” would be a more accurate term for it. Across the nation, Americans of German descent suffered a catalogue of abuses, ranging from loyalty oaths administered at government jobs to
discriminatory treatment by state officials to violent attacks by vigilantes. In Nebraska, the state legislature got in on the act with a law banning both public and private school teachers from instructing young children in a foreign language. Although it did not say so explicitly, the statute's primary target was the state's system of Lutheran parochial schools, where both teachers and students commonly spoke German. One such instructor, Robert Meyer, who taught the Bible in German at a school run by the Zion Evangelical Lutheran Congregation, challenged the statute for violating his rights. He started out in state court, but the Nebraska Supreme Court soon ruled against him. “The salutary purpose of the statute is clear,” that Court held. “The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”
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Meyer then appealed his loss to the U.S. Supreme Court, where, in a notable rejection of democracy, he won.

The Due Process Clause of the Fourteenth Amendment, declared the opinion of Justice James C. McReynolds, clearly secured Meyer's right to earn a living by teaching the Bible in his native tongue, no matter what a majority of his neighbors happened to think about it. By the same token, it also covered the right of parents to educate their children in a foreign language. The Fourteenth Amendment's protection of liberty “denotes not merely freedom from bodily restraint,” McReynolds explained, “but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
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Today,
Meyer v. Nebraska
is largely remembered as an early victory for civil liberty against mob rule, which it surely was. Yet it was
also a victory for economic liberty against overreaching regulation. Notice the shades of both
Corfield v. Coryell
(the Circuit Court case cited by the Fourteenth Amendment's authors) and Stephen Field's
Slaughter-House
dissent in McReynolds's sweeping invocation of liberty. What's more, McReynolds's unabashedly libertarian ruling cited the precedent set in
Lochner v. New York.
In
Meyer,
civil and economic liberty did not just rest side-by-side, they were deeply entwined in every aspect of the case.

So of course Justice Holmes cast a dissenting vote. In his view, the anti-German majority ought to have its way. “I am unable to say the Constitution of the United States prevents the experiment being tried,”
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Holmes explained in a companion case,
Bartels v. Iowa,
which dealt with a similar state ban on foreign-language teaching. As Holmes saw it, the Fourteenth Amendment offered no impediment to a state legislature's ability to “experiment” with limiting the language of its young citizens. Among the leading Progressives who sided with Holmes was Felix Frankfurter, who said he would rather see the language ban remain in force instead of “lodging that power in those nine gents at Washington.”
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Holmes's dissent in
Meyer
was an ugly lesson in how judicial restraint could allow state-sanctioned discrimination to thrive. But no case from that era illustrates this lesson better than
Buchanan v. Warley,
in which the Supreme Court was confronted with a popularly enacted Jim Crow law segregating residential housing blocks by race. Before we turn to the facts of that landmark case, however, let's take the opportunity to meet one of the main figures responsible for bringing it about: Moorfield Storey, the libertarian lawyer who argued and won
Buchanan
before the Supreme Court in his capacity as the first president of the National Association for the Advancement of Colored People (NAACP). If today's libertarian legal movement had a patron saint, Moorfield Storey would be it.

The Libertarian Lawyer

Born in Roxbury, Massachusetts, in 1845, Moorfield Storey presents a direct link in time between the free labor philosophy of the nineteenth century and the libertarian constitutionalism that emerged in the twentieth. A fierce critic of imperialism, militarism, and executive power,
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Storey was a founder and president of the Anti-Imperialist League, which opposed U.S. annexation of the Philippines after the Spanish-American War of 1898 and counted Mark Twain, Andrew Carnegie, and President Grover Cleveland among its members. An advocate of free trade, liberty of contract, and the gold standard, Storey also helped organize the independent National Democratic Party, also known as the Gold Democrats, who fought the anti-gold populist William Jennings Bryan's Democratic presidential bid in 1896.
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An individualist and anti-racist, Storey led the NAACP to its first major Supreme Court victory in
Buchanan v. Warley.

But before all of that, Storey got his initial start in public life back in 1868 when he served as the personal secretary to Senator Charles Sumner, the legendary Massachusetts abolitionist whose fiery attacks on the peculiar institution inspired one of the most notorious events in congressional history. In 1856, a pro-slavery Congressman named Preston Brooks beat Sumner senseless on the floor of the Senate over Sumner's insulting characterizations of the slaveholding South. Severely injured by the attack, Sumner would spend three years recuperating before he was finally able to return to Congress. Storey, who later wrote an incisive biography
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of Sumner's life and career, would remain under the influence of his old boss's abolitionist principles for the rest of his life.
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Storey put those principles to good use when the case of
Buchanan v. Warley
reached the Supreme Court in 1917. At issue was a Louisville, Kentucky, ordinance segregating residential housing blocks by race. Enacted “to prevent conflict and ill-feeling between the white
and colored races,”
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the law made it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To test the law, William Warley, the head of the Louisville chapter of the NAACP, arranged to buy property on a white block from a white real estate agent named Charles H. Buchanan, also an opponent of the law. When Warley “learned” that he could not live on the property he was purchasing, he refused to complete payment. Buchanan then sued, but the Kentucky courts ruled against him, upholding the ordinance. NAACP president Storey, joined by Louisville attorney Clayton B. Blakely, took the case to the Supreme Court.

In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law “prevents the plaintiff from selling his property for the only use to which it can be put,” they wrote. “It thus destroys, without due process of law, fundamental rights attached by law to ownership of property.” Furthermore, the law's true purpose was not “to prevent conflict and ill-feeling,” as it claimed, but rather “to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter.”
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Were such a restriction upheld, they argued, “an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable.”
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Among the legal authorities cited by the brief is none other than the
Lochner
case, then the Court's most famous decision protecting economic liberty from state legislation.

In its
Buchanan
brief, the state of Kentucky took a dimmer view of property rights and economic liberty. Advocating judicial restraint, the state argued that the Court should defer to local judgment and stay out of the matter entirely. “Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object,” the brief argued, “is a legislative and not a judicial question.”
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Furthermore,
“the injury [to property rights] is merely incidental to the city's right to segregate, and does not warrant the overthrow of police regulations.” As for Storey and Blakely's contention that the law forced blacks to inhabit the city's worst neighborhoods, “the improvement of the negro's condition is limited only by his own character and efforts.”
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The Supreme Court disagreed. “Property is more than the mere thing which a person owns,” Justice William Day held for the unanimous body. “It is elementary that it includes the right to acquire, use, and dispose of it.”
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Accepting Storey's argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”
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Storey was justifiably thrilled at the victory. “I cannot help thinking it is the most important decision that has been made since the
Dred Scott
case,” he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard (the grandson of abolitionist William Lloyd Garrison), “and happily this time it is the right way.”
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W. E. B. Du Bois, editor of the NAACP newsletter,
The Crisis,
heartily agreed, crediting
Buchanan
with “the breaking of the backbone of segregation.”
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In fact, as one legal scholar has argued, “though it was not used to its full potential,
Buchanan
almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures.”
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It was a major triumph for individual rights under the Fourteenth Amendment and also the first significant victory for the young NAACP, which went on to become the most influential civil rights organization in the country. And once again, Justice Oliver Wendell Holmes wrote a dissenting opinion, except this time he decided not to file it and instead voted silently with the majority (for reasons that
remain unknown). In the draft of that dissent, however, Holmes took his usual majoritarian position. He began by suggesting that the Supreme Court should dismiss the suit unless the NAACP provided “some evidence that this is not a manufactured case.” Turning next to the constitutional merits, he maintained that Kentucky had every authority to regulate property in this manner. “The value of property may be diminished in many ways by ordinary legislation as well as by the police power,” he wrote. An earlier draft of the dissent also contained this sentence, later removed by Holmes from the final, unpublished draft: “The general effect of the ordinance is supposed to be beneficial to the whites for the same reasons that make it bad for the blacks.”
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In other words, as Holmes had put it on an earlier occasion, “It is no sufficient condemnation of legislation that it favors one class at the expense of another,”
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since all legislation boils down to one group imposing its will on other groups. All things considered, the unpublished dissent was a prime example of Holmes's typical deference to lawmakers. The only surprise is that he failed to practice the judicial restraint he normally preached and instead went along quietly with
Buchanan
's libertarian approach. Perhaps even Holmes had to flinch at the idea of casting a lone vote in favor of Jim Crow.

Holmes and the New Deal

In 1931, to celebrate the occasion of Justice Oliver Wendell Holmes's ninetieth birthday, Harvard law professor Felix Frankfurter put together a book-length collection of tributes to his friend and mentor. Published by the New York firm of Coward-McCann,
Mr. Justice Holmes
featured contributions from a virtual who's who of Progressive intellectuals, all lined up in honor of the elder jurist. The philosopher John Dewey, for example, celebrated Holmes as “the most distinguished of the legal thinkers of our country.”
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Federal Appeals Court Judge Learned Hand praised Holmes
for “the capaciousness of his learning, the acumen of his mind . . . his freedom from convention.”
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Benjamin Cardozo, who would soon take Holmes's place on the Supreme Court, said he “gives us glimpses of things eternal”
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and is “the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages.”
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Frankfurter himself simply gushed, “to quote from Mr. Justice Holmes' opinions is to string pearls.”
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