Rethinking Corrigan v. Buckley: The Necessary Battle in the Legal War for Civil Rights

Bailey Evans

May 2, 2023

Introduction

Throughout the first six decades of the 20th century, racial covenants saw use in every state. These covenants restricted who could and could not own a given property, and very often, who could and could not inhabit a specific community or subdivision. Often, these covenants would restrict African Americans, but other demographics such as Italians, Irish, Chinese, Japanese, Jews, and Mongolians were also targeted. In many cases several of these groups would find themselves listed in a covenant. This signals, among other things, that “whiteness” existed on a spectrum. Many covenants would use the catch-all terms of “anyone but the white race” or “colored persons;” perhaps ahead of their time, some would use “persons of color” too. No matter the wording, all had the same meaning: a given property could not be owned, inhabited by, transferred to, conveyed to, leased to, or rented to any nonwhites. 

The Supreme Court rendered racial covenants unenforceable in 1948, when they handed down their decision in Shelley v. Kraemer. This landmark case, coupled with other cases that led up to the Kramer decision provide ample legal rulings and arguments to examine. But Shelley could not have succeeded the way it did without the decision in Corrigan v. Buckley, and this paper seeks to present a revisionist view of the Corrigan case to show how a case traditionally seen as a tool upholding white supremacy in the United States can be seen a positive development to combat institutional racism within both the legal system and real estate market. 

Well before Shelley, racial covenants found their way into property deeds throughout the country. Covenants themselves are not inherently problematic and can often contribute to a better quality of life for the neighborhood though keeping it orderly and beautiful, thus increasing the property values. They were, and still are, a very real part of real estate. However, racial covenants are problematic, as they bring neighborhood demographics to the same level as the keeping of livestock in a suburban environment. They restrict the rights of property owners to sell to anyone and they restrict the rights of potential buyers to freely move in the United States.  

Within the problematic aspects of racial covenants resides a double-bladed approach to attacking the economic and racial sovereignty of black individuals and families. At the core of racial covenants is this aspect of denying economic freedom and power to African Americans, and behind that denial is an act of symbolic white supremacy. This multi-layered problematic aspect (which is to say: this is one massive problematic aspect made of multiple supporting features) was at the heart of forming, maintaining, and enforcing racially restrictive covenants. Also contributing to the perpetuation of these racial covenants were social worries over integration in communities.  

The Legal History of Racially Restrictive Covenants 

Challenges to racially-based restrictions began not long after the practice of racial covenants began. While the challenges before 1948 were often inconsistent, both in decisions leading to the Supreme Court and within the Court itself, the decisions nevertheless have left a rich array of legal arguments and opinions from which to better examine racial covenants, property rights, and the evolution of civil rights law during the twentieth century. 

The first case related to, though not explicitly about, racial restrictive covenants to make it to the Supreme Court is Buchanan v. Warley (1917). The issue in this case arose from an ordinance, or local law, in Louisville, Kentucky that stated if more than half a block was of one race, the other race could not live there. This law went both ways, meaning that whites could not live on a block where more than half of the inhabitants being black, and blacks could not live on a block where more than half of the inhabitants were white. In this particular instance, William Warley, a black man and lawyer for the National Association for the Advancement of Colored People (NAACP), wished to purchase a property from Charles Buchanan, and within the terms of sale was a provision that said if any law prevented him from living on that property, he would not pay for the property. Eighty percent of the block’s inhabitants were white, which meant Warley could not live on the property he wanted to purchase per the local ordinance. Warley, using the provision within the contract backed out of the deal and Buchanan sued to get Warley to pay what he had agreed to pay. This suit was orchestrated by Buchanan and Warley to prompt the federal government to step in and undo the ordinance preventing freedom of movement. 

The trial and appellate courts ruled in Warley’s favor, the contract’s terms supported his argument. The Supreme Court, however, ruled in Buchanan’s favor. Their reasoning is not so noble, or perhaps just, as to say that the races should necessarily live among one another; instead, their argument rested more on a constitutional and economic basis. Specifically, the Court noted that the right of a white person to sell their property to a black person was protected by the Fourteenth Amendment. (1) The Court did not stop at recognizing the protections to the seller though, ending the unanimous majority opinion stating,

“It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors or put to disagreeable though lawful uses with like results.”

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case, the ordinance cannot stand. (2)

The Court demonstrated at least some recognition that the Fourteenth Amendment extended to all Americans, and that property rights fall within the purview of the Fourteenth Amendment. Buchanan v. Warley stands as an early example of defeating restrictive “state action,” which though used only once in this case, would come to bear significant meaning in subsequent cases.  

Just nine years after Buchanan v. Warley came Corrigan v. Buckley (1926). The Court ruled in this case in favor of racially restrictive covenants, though there is some nuance within this ruling, namely when it comes to the application of constitutional rights. Irene Corrigan wanted to sell her property to Helen and Arthur Curtis, but the Washington, DC property, just like those around it, was under a racial covenant. The owners of those surrounding properties attempted to enforce the covenant through the legal system. The Court found that the arguments made on the part of Corrigan and the Curtiss had no substantial constitutional questions since the Constitution limited the power of the government in this case and not the private citizens, and stated they lacked the proper jurisdiction to rule on this case, thus upholding the racial covenants implicitly. (3)

The outcome of this case does stand somewhat in contrast to the ruling in Buchanan v. Warley, but it bears remembering the Court struck down a law in that case, whereas they upheld the right of private citizens to conduct business and enter into contracts with one another in Corrigan. In this manner, the Court worked to keep state action out of the process of enforcing the racial covenants. Through making a clear, though misguided, statement on where the government had power and where it didn’t, the Court established where state action began and how it could be applied. The traditional view of this case is that it legalized racial covenants, and while that view is fair, the revisionist view in this paper looks at the Corrigan decision through a more positive lens. Frankly, this case should not be viewed not as the case that upheld racial covenants, but as the case the cemented the foundation made in Buchanan for Shelley to have a firm basis to challenge courts’ actions in enforcing covenants when its time came. 

Finally, the landmark decision from 1948 about racially restrictive covenants, Shelley v. Kraemer, was handed down. This case firmly established the legal status of racial covenants, which is to say that this is where the Supreme Court finally, in plain text ruled that racial covenants were unenforceable. (4) Shelley v. Kraemer began when the Shelleys tried to buy a house in 1945. Though the Shelleys were unaware of the covenants on the property, the neighbors, led by the Kraemers, sued to enforce the racial covenants. The Supreme Court found that judicial enforcement of racial covenants is tantamount to state action, which violates the Equal Protection Clause of the Fourteenth Amendment, which is a small fragment of the Fourteenth Amendment that states all people within the United States are entitled to equal protection under the law. (5)

It should come as no surprise that this case bore similarities to both previous cases. The main similarity, which remains constant across all three cases is the desire for a white property owner to sell to a black person or family. The issue at hand, constitutionally, is not whether black families can live next to white families, instead it is a multifaceted issue of 1) whether a state has a right to create laws that restrict property owners from selling to the certain demographics based on arbitrary rules, and 2) whether states can involve themselves in contracts between private parties. The Court’s ruling makes a direct point on both these matters – 1) no, states cannot do this as it violates federal protections every American has, and 2) also no, since state action constitutes violations of these federal protections. Through these rulings, a clearer picture of how racial covenants evolved into a state of unenforceability becomes clear.

The Shelley decision was as effective as it was at removing the legal power of racial covenants because of Corrigan. Through the Corrigan decision, those taking on racially restrictive covenants now had serious legal standing to raise challenges, since the state had identified where it could step in. By enforcing these racial covenants, courts took part in unconstitutional state action infringing on the rights of Americans to equal protection under the law, as it had been clearly prevented through the Buchanan decision. 

The NAACP and Their Vital Contributions

While the cases bear the names of the plaintiffs and defendants in these cases, they are not the only people involved in these matters. Lawyers, judges and Justices, and national organizations such as the NAACP all played a role in these cases. Perhaps the most important group in the entire story of defeating racial covenants is the brigade of lawyers at the NAACP. Louis Marshall is one of these lawyers, and he was co-counsel in the Corrigan case and was vital in writing the appeal to the Supreme Court. Marshall’s approach would set the tone for future endeavors by the NAACP in tackling discriminatory housing practices. (6)

Marshall’s co-counsel was Moorfield Storey, who worked on Buchanan v. Warley and did so pro bono, or for free. His work contributed not only to undoing the ordinance in Louisville, Kentucky, but also helped to defeat restrictive ordinances elsewhere in the United States. Storey brought not only his experience in Buchanan but also an expertise in public policy, helping to form the argument around state action. 

The NAACP contributed vast amounts of money and manpower to these legal battles, with some battles totaling in the tens of thousands of dollars, which for their time was a substantial cost. Their lawyers, like Warley, Marshall, and Storey continued to fight even after losing, as was the case with the Corrigan decision. NAACP lawyers made it clear that since the Court had dismissed the case due to a lack of clear jurisdiction, the decision could not be seen as an endorsement of racial covenants; instead, they argued this was a “deliberate misrepresentations.” (7)

The NAACP lawyers were not shy about making waves over these misrepresentations of Corrigan either, writing in an appellate brief for another case, “We only wish to observer that anyone who can garble and misread an opinion as clear as that in the Corrigan case, as Professor McGovney does, can hardly be trusted either as to his judgement or his intellectual integrity.” (8) This quote demonstrates the NAACP did not necessarily see the Corrigan case as a total loss, and that they had some understanding of the power which the ineffectual decision held for later cases. 

Money and manpower from the NAACP played just as vital a role in undoing racial covenants as the Supreme Court decisions themselves did. Through the NAACP, those subject to racial covenants had a good chance of one day undoing them. Without their legal prowess and ability to fund legal campaigns against these discriminatory practices, it is doubtful these cases would have been as successful as they were in general. 

Historiography 

The historiography on Corrigan begins not long after the decision from the Court was handed down. Writing in a 1924 Virginia Law Review journal, an anonymous author wrote about the Corrigan case and surprisingly, for the Jim Crow era South, wrote in a neutral tone, not championing the decision or criticizing it too heavily for either being ineffectual or not going far enough one way or the other. Instead, it recognized state court decisions on racial covenants had typically ruled in favor of the discriminatory covenants. The article also recognizes the line from the decision which states that the Constitution exists to limit the government in certain facets, but it cannot limit private citizens. Though of interesting legal history note is one line at the end where the author recognizes a covenant can be made unenforceable when the targeted people are of a nation with whom there is a “most favored nation treaty,” citing Gandolfo v. Hartman (1892), 49 Fed. 181, 16 L. R. A. 277. (9) Though this journal was published before the final Supreme Court ruling, it still offers great insight into the legal arguments and response to the arguments within the case, particularly in how it shows how a racial covenant could be defeated. Also of immense value is the tone this short article is written in, as noted it does not take a heavy-handed view for or against Corrigan and the Curtiss. 

Historiography on Corrigan would be sparse after this article until 1959 with Clemet Vose’s Caucasians Only. This book provides the greatest legal analysis on the cases mentioned in this paper. Vose examines every case regarding racial covenants and takes an especially keen look at the NAACP, where he lets their work speak for them and the NAACP, which is to say, despite any setbacks, the NAACP and their lawyers, Vose dutifully notes, were successful in the end and followed a long legal lineage throughout these cases taking place in the first half of the twentieth century. 

Vose is not a historian though, and his work is written not long after Shelley and Brown v. Board of Education of Topeka (1954), 347 U.S. 483. In essence, he is writing about activist causes during a time in which they are a hot button issue. Full integration of schools stemming from Brown would not be realized for more than a decade after Vose’s book was published. This does not detract from the value of his observations on this topic and especially on the contributions of the NAACP to defeating such discriminatory laws. 

Following Vose is Jeffrey Gonda and his Unjust Deeds. Gonda published his book in 2015 and offers a complimentary source to what Vose wrote decades before. Gonda even goes further in analyzing the response of the NAACP in a detail that is absent from Vose’s account. Offering a substantial amount of information on Corrigan, which is notable for a case with so little written on it, given its traditional view as a loss for civil rights, Gonda writes explicitly on the case in fourteen to fifteen pages throughout the monograph. 

Gonda is a historian, and his work comes well after the events in which he writes about take place. His source base is considerably greater than Vose’s but again, this is not to detract from Vose, merely to show that the analysis and historiography has evolved and deepened over time.

Conclusion

Corrigan v. Buckley has remained an overlooked, underappreciated case in the fight for greater racial equality. The traditional way of viewing this case as a loss for civil rights and as the Supreme Court, or as some commentors have described the Court in this case, the “Supreme Tyranny,” upholding white supremacy at the federal level overlooks the strides made from the decision in this case. (10) Without the decision, at the federal level, clearly defining what the state could do and could not do, the ability of future cases, especially Shelley, to tackle discriminatory housing practices and racial covenants would not have been so rigid. The Corrigan decision strengthened the position of the NAACP and its lawyers to take on cases and win to great effect. 

In reframing the way this case is viewed, a greater understanding of the legal plight of civil rights activists (either by choice or circumstance) and their attorneys can be unraveled. This understanding then yields a greater appreciation for the legal system when it works in the favor of the People of the United States. Was the Corrigan decision wrong at its core? Yes, it was. But without the gross neglect for the constitutional rights of certain Americans in this case, the arguments to ensure those rights down the line might not have been so solid. In reflecting on perhaps the greatest civil rights activist in the history of the United States, Dr. Martin Luther King Jr wrote in his “Letter from Birmingham Jail” that, “Injustice anywhere is a threat to justice everywhere.” (11) It is an injustice to overlook the sacrifices of the Curtiss and Irene Corrigan who worked as hard as they could to avoid the racial covenants in place on that Washington, DC property. The fight the NAACP put on throughout the first half of the twentieth century deserves to be remembered, not only for the massive victories like Buchanan and Shelley but also for the cases that didn’t win as big, like Corrigan, which in the immediate was seen as an utter defeat. The arguments made there still found their way into the arguments of larger cases later and the rulings gave precedent to see racial covenants ruled unenforceable. 

(1) Buchanan v. Warley, 245 U.S. 60 (1917).

(2) Ibid

(3) Corrigan v. Buckley, 271 U.S. 323 (1926). 

(4) Shelley v. Kraemer, 334 U.S. 1 (1948). 

(5) U.S. Constitution, amend. 14, sec. 1.

(6) Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley, University of California Press, 1959), 52.

(7) Vose, Caucasians Only, 145.

(8) Ibid.

(9) “Constitutional Law. Covenant Prohibiting Sale of Property to Negro Is Constitutional,” Virginia Law Review 11, no. 1 (1924): 68–69, https://doi.org/10.2307/1065335.

(10) “(15) Corrigan V. Buckley Made It Illegal for White People To Sell Their House to an ‘Nword’. #Deletelawz - Youtube,” Accessed May 2, 2023.

(11) Martin Luther King, “Letter from Birmingham Jail,” 1963.