Shelly

[DAVID E. BERNSTEIN]

I agree that this theory would justify Shelley, and have said so in a
Vand. l. Rev. article, pointing out that various states and localities
that enforced racial covenants refused to enforce other restrictions on
alienation that affected a far smaller percentage of the housing market
than did racial restrictions.  However, I don't believe that this was
actually argued to the Court, so is there any evidence that this was
what the Court was thinking in Shelley?

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Michael McConnell <mcconnellm at LAW.UTAH.EDU> 11/02/00 03:15PM >>>
I think that Shelly is explicable on quite another ground. As I
understand
the common law regarding restrictions on alienation, they are
disfavored,
and are enforceable only when they accord with public policy. Thus, to
enforce the racially restrictive covenants in Shelly is to declare that
the
covenants acccord with public policy. That is state action. (By the way,
it
is the same theory under which the proponents of the CRA of 1875
defended
the constitutionality of its prohibition of discrimination by common
carriers.)

Michael McConnell