Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause.
Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, that neither the Supreme Court nor lower courts have followed Shelley's rationale. For instance, courts regularly enforce settlement agreements that limit the settling parties' speech despite the fact that statutory limitations on the identical speech would be unconstitutional. Indeed, the Court has eschewed Shelley's approach even in virtually indistinguishable contexts of racial discrimination.
After showing that neither courts nor scholars have yet provided a satisfactory alternative rationale for Shelley's holding that can make sense of the post-Shelley case law, this Article offers a wholly new explanation. Whereas courts and scholars to date have understood Shelley as a constitutional decision based on the Fourteenth Amendment, this Article argues that Shelley is best grounded in federal statutory law enacted under the Thirteenth Amendment - the only constitutional provision that applies directly to individuals and hence does not require there to be state action.
An early Supreme Court decision held that Section 2 of the Thirteenth Amendment grants Congress the power to regulate so as to abolish the incidents of slavery, which, the Court explained, encompasses disabilit[ies] to hold property [or] to make contracts. Racially restrictive covenants implicate both of these and hence could have been regulated by Congress under its Section 2 powers. Even absent Section 2 legislation, the Shelley Court could have relied on Section 2 itself to proscribe the restrictive covenants as a matter of federal common law, akin to dormant commerce clause doctrine. This was not necessary, however, because Congress had enacted two statutes under its Section 2 powers whose language readily reached - and proscribed - racially restrictive covenants.
The Article establishes that these statutes were known to the Shelley Court, and tries to explain why the Court shunned them as a basis for its holding. The Article then explains several benefits of presently reconceptualizing Shelley as a Thirteenth Amendment-based decision. The Thirteenth Amendment, unlike the Fourteenth, applies to individuals, and hence provides a basis for declaring the racially restrictive covenants themselves to be illegal, not just their enforcement, thereby solving a long-standing embarrassment of Shelley's analysis: the case's conclusion that racially restrictive covenants themselves were perfectly legal. The Thirteenth Amendment also provides a basis for rationalizing the post-Shelley case law. Further, the Article's suggested approach has important institutional implications: whereas Shelley allocated the duty to police restrictive covenants solely to courts, the Article's Thirteenth Amendment approach invites Congress and the President to jointly determine the sorts of covenants (or other matters) that qualify as incidents or badges of slavery. Finally, Shelley helped solidify a constitutional culture that largely overlooks the Thirteenth Amendment and instead relies primarily on the Fourteenth Amendment's due process and equal protection clauses. Reorienting Shelley in the manner advocated here accordingly may help revive largely dormant Thirteenth Amendment principles.
Mark D. Rosen,
Was Shelley v. Kraemer Incorrectly Decided? Some New Answers (winner of the 2006 Outstanding Scholarly Paper Award from the Association of American Law Schools),
Cal. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/529