Jay Peledge's List: Native Son

• On February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was subsequently recorded, providing in part:

    

  . . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any [p5] portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.
• On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable consideration received from one Fitzgerald a warranty deed to the parcel in question. ^[n1] The trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase. [p6]

• In June, 1934, one Ferguson and his wife, who then owned the property located in the city of Detroit which is involved in this case, executed a contract providing in part:

    

  This property shall not be used or occupied by any person or persons except those of the Caucasian race. [p7]
• It is apparent that that case, which had originated in the federal courts and involved the enforcement of covenants on land located in the District of Columbia, could present no issues under the Fourteenth Amendment, for that Amendment, by its terms, applies only to the States. Nor was the question of the validity of court enforcement of the restrictive covenants under the Fifth Amendment properly before the Court, as the opinion of this Court specifically recognizes. ^[n5] The only constitutional issue which the appellants had raised in the lower courts, and hence the only constitutional issue [p9] before this Court on appeal, was the validity of the covenant agreements as such. This Court concluded that, since the inhibitions of the constitutional provisions invoked apply only to governmental action, as contrasted to action of private individuals, there was no showing that the covenants, which were simply agreements between private property owners, were invalid
• • Lorraine Hansberry's father!
• The second of the cases involving racial restrictive covenants was Hansberry v. Lee, 311 U.S. 32 (1940). In that case, petitioners, white property owners, were enjoined by the state courts from violating the terms of a restrictive agreement.
• The precise question before this Court in both the Buchanan and Harmon cases involved the rights of white sellers to dispose of their properties free from restrictions as to potential purchasers based on considerations of race or color. But that such legislation is also offensive to the rights of those desiring to acquire and occupy property and barred on grounds of race or color is clear not only from the language of the opinion in Buchanan v. Warley, supra, but from this Court's disposition of the case of Richmond v. Deans, 281 U.S. 704 (1930).
• But the present cases, unlike those just discussed, do not involve action by state legislatures or city councils. [p13] Here, the particular patterns of discrimination and the areas in which the restrictions are to operate are determined, in the first instance, by the terms of agreements among private individuals
• • Court's "personal" opinions seem clear here, but they are mandated to rule solely by law, not morality. Law and morals are not always hand in hand.
• That Amendment erects no shield against merely private conduct, however discriminatory or wrongful. ^[n12]
• We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment.
• 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 [p14] terms of the agreements
• Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell.
• 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 such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or [p21] color. ^[n25]
• Respondents urge, however, that, since the state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected. ^[n28] This contention does [p22] not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color.
• Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.
• • Persuasive essay format---dismantling the opposition

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• My answer is that it is really the defenders of the concept of "race" who are unwittingly shaped by the political reality of American history. [Read a
• • Race is an issue of perception, not so much biological. 
• "Races" defined in such a way are products of our perceptions.
• Our beliefs concerning "race" are based on the same sort of common sense, and they are just as basically wrong.
• Although Europeans and Chinese are obviously different, in skin color they are closer to each other than either is to equatorial Africans. But if we test the distribution of the widely known ABO blood-group system, then Europeans and Africans are closer to each other than either is to Chinese.
• • "Race" is a perceptual understanding of skin color, not universal differences amongst all biological elements, in this case "ABO blood-group system."
• aphorism, "There are no races, there are only clines."
• Their continued use, then, is in social situations where people think they have some meaning.

  • Race is a social construct. 
• It was the American experience of those three separate population components facing one another on a daily basis under conditions of manifest and enforced inequality that created the concept in the first place and endowed it with the assumption that those perceived "races" had very different sets of capabilities. Those thoughts are very influential and have become enshrined in laws and regulations. This is why I can conclude that, while the word "race" has no coherent biological meaning, its continued grip on the public mind is in fact a manifestation of the power of the historical continuity of the American social structure, which is assumed by all to be essentially "correct."
• • The separation of races, and the ramifications thereof, in the American experience has perpetuated more damage while guising as truthful principles. 
• One of those ideas is the concept of "race," which we have exported to the rest of the world without any realization that this is what we were doing. The adoption of the biologically indefensible American concept of "race" by an admiring world has to be the ultimate manifestation of political correctness.
• (those who do skeletal identification for law-enforcement agencies) are overwhelmingly in support of the idea of the basic biological reality of human races, and yet those who work with blood-group data, for instance, tend to reject the biological reality of racial categories.
• • "Race" does exist if you are looking at certain anthropological categories, eg. skeletal structure, but not if you look at others, eg. blood-group. 
• My answer is that we can often function within systems that we do not believe in.
• • "Social constructs" are what give power to race, but also age and sex estimations. 
• "social construct"
• that I am more accurate at assessing race from skeletal remains than from looking at living people standing before me.

  • They view "race" in different lenses. Teasing out race based on skeletal remains is far different than the "race" that Brace argues about as well as Barbara J. Fields in her essays. 
• Their motivation (a positive one) is that they have come to believe that the race concept is socially dangerous. In other words, they have convinced themselves that race promotes racism. Therefore, they have pushed the politically correct agenda that human races are not biologically real, no matter what the evidence.
• • Racism, some believe, stems primarily from believing that race is real; however, denying its existence is not the means by which to confront and overcome racism. 
• One of my teammates, an affirmative-action lawyer, is afraid that a denial that races exist also serves to encourage a denial that racism exists. He asks, "How can we combat racism if no one is willing to talk about race?"

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• • Having "race" in our vocabulary is dangerous as it can influence the way we interpret new experiences when we describe them. 
• • Racial incapacity became a means of explaining why freedmen failed. 
• • "Race" become legitimized once people sought moral reasons for existence of slavery. 
• • "Race is an ideological construct and thus, above all, a historical product"
• • Free-soilism and proslavery expansionism stem from similar expressions of white supremacy. 

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