The Rule in Shelley's Cases

[Mark Graber]

I'm a bit puzzled by the defenses of Shelley that are appearing on
this list.

1.  Assume there is a common law presumption against restrictive
covenants.  I would have thought the whole trend of New Deal cases
clearly established the principle common law property principles
have little if any constitutional status (except perhaps to
interpret ambiguities), that states are free to disregard common law
property principles when making public policy.  Note in this respect
that much of the criticism of the Supreme Court's decision in
BUCHANAN was from progressives who regarded that result as akin to
the result in LOCHNER (i.e., segregating races serves a rational
public purpose).

2.  Assume the common law rule still had constitutional status in
1947.  Given past practice, couldn't it be said that American common
law at that time also recognized that restrictive covenants based on
race were permissible?

Mark A. Graber
mgraber at bss2.umd.edu