Comment by skissane | Hacker News Reader

Comment by skissane | Hacker News Reader

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> Remember that there are plenty of houses today in America which were bought under the explicit promise that their neighbors would always be white people. That got taken away. Why should the promise of single family housing be any more precious?

I'm not saying I oppose abolishing either racially restrictive covenants or single family zoning. On the contrary, I support the abolition of the former, and am open-minded about the abolition of the latter.

What I'm opposing is particular arguments to those conclusions – what one might call libertarian(-adjacent) arguments – not the conclusions themselves.

I think, a legal right to racially homogenous neighbours is a property right, and taking it away was an expropriation of property – but an expropriation I support. And I don't think one is always owed compensation for such expropriations either. Legally speaking, not all "regulatory takings" are entitled to compensation; and I'm unconvinced the answer is different if we look at that question through a moral lens rather than a legal one.

Was it ever an explicitly legal right, or just one that hadn't been explicitly illegal? I don't know offhand if there was any prior legal ruling that this sort of thing was legal or if it was just something that in practice the government never did anything about before 1968. I feel like there's a difference between a legal status quo and a legal right, and it's not clear to me that this was ever a right (although maybe you're aware of a specific case or something I'm not)

The US Supreme Court upheld racially restrictive covenants in the 1926 case Corrigan v. Buckley; they then overturned that decision in the 1948 case Shelley v. Kraemer.

So, between 1926 and 1948, there was a US Supreme Court case upholding racially restrictive covenants. There were also many state court cases reaching the same conclusion. So yes, the US courts had reviewed them and found them to be legally binding.

Furthermore, although from 1948 onwards they were officially legally unenforceable, it didn't stop new such covenants being made, which served as a social signal that non-white residents weren't welcome; the 1968 Fair Housing Act made it illegal to create such a covenant, as opposed to them merely being unenforceable in the courts.

I guess I shouldn't be surprised that for any given form of racial discrimination, there was some point in US history where a court directly ruled that it was legal.

> Furthermore, although from 1948 onwards they were officially legally unenforceable, it didn't stop new such covenants being made, which served as a social signal that non-white residents weren't welcome; the 1968 Fair Housing Act made it illegal to create such a covenant, as opposed to them merely being unenforceable in the courts.

Yeah, this is more what I was wondering about in my comment above. You had mentioned the idea of a "legal right to racially homogenous neighbours", and I was curious if that was actually an explicit legal right at any point rather than just something that in practice people did without getting into trouble. It sounds like there were a couple decades where it was explicitly a legal right, and then another couple decades after where it was in the "implicitly allowed despite not being considered legal" territory (and presumably for an indefinite period beforehand was also basically allowed, just without the definitive legal ruling on it).

To clarify, I didn't expect that you were wrong by using that phrasing earlier; I just had no clue either way, and it seemed like it might be useful context for the discussion either way.

I think racially restrictive covenants were originally legal basically everywhere; but only in the US, Canada and South Africa did they become common.

Under English real estate law, while there are some constraints on your ability to make covenants, the rules are quite broad. A century ago, racial discrimination wasn't illegal or clearly contrary to public policy in most common law jurisdictions – indeed, many of them had explicitly racially discriminatory laws on the statute book – so racially restrictive covenants weren't obviously disallowed. The US, with its constitutional prohibition on discrimination in the 14th Amendment, was actually the only common law country in which there was a decent argument they weren't legal – but SCOTUS rejected that argument at first, then changed its mind over 20 years later. In the 1945 case Re Drummond Wren, the Ontario High Court ruled them illegal – but it cited the just signed United Nations Charter as grounds for doing so.

I agree. And really the Supreme Court ruling that racial zoning couldn’t be enforced and was an unlawful property taking is an even more direct analogy.

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