Challenging Oklahoma City Racially Restrictive Covenants

I've got a short essay on progressive property up on ssrn.  It is part of a symposium the Savannah Law Review hosted last fall as part of the re-dedication of their building, which was first constructed in the early nineteenth century.  It's extraordinary to think about how much change that building has seen.  It existed before the Native Americans were pushed out of Georgia, before slavery had reached its peak in the state, and weathered the Civil War, Reconstruction, and Jim Crow.

One of the things that I talk about in the paper is how on some occasions property protects the rights of racial minorities.  There are shameful episodes, such as the Tulsa race riot, that illustrate just how fragile property ownership was.  But right now I want to focus on an argument made by a lawyer for an African American person who challenged a racially restrictive covenant in Oklahoma City in 1935 to suggest how a property-based argument could protect African Americans.   The lawyer referred to his Confederate bona fides (his father was a Confederate veteran), as he made the argument that African Americans had a constitutional right to property. 

The writer of this brief is himself a son of a confederate veteran, but believes notwithstanding in the sanctity of our constitution, as an able writer has said inspired almost by The Almighty on High. The Constitutional rights of this Negro . . . cannot be criticized, and the attempts of plaintiffs in error to inject the red shirt of prejudice into this case, as arrayed against the constitutional rights of the Negro owner is unbecoming of our noble profession, the lover of absolute freedom of the law, the constitutional right to acquire, own, and enjoy life, liberty, and protection in our property rights without discrimination on account of race, color, or previous condition of servitude.

 This is an early, undeveloped argument about how a private restrictive covenant might effect a constitutional right to property.  What really interests me is how the lawyer played against type to make an argument for his clients and how he appealed, in the depths of Jim Crow, to the Constitution to protect a basic right for African Americans.

The struggle in Oklahoma City over racially restrictive covenants stretched from the late 1920s to just after Shelley v. Kraemer was decided.  I want to talk about this some more shortly.  It's a very interesting story, which suggests that something very exciting was going on in the Oklahoma City African American community -- of course those of us who are fans of Roscoe Dunjee (or have read about the courage of that community to take a stand against lynching in the era of the Tulsa riot) knew that already.  

This will give me a chance to post some more pictures of the community where the challenges to the racial covenants were waged.  The image is the home of a man who sued to enforce the racially restrictive covenant on his block.

Comments

[Derek Tokaz]

"The writer of this brief is himself a son of a confederate veteran, but believes notwithstanding in the sanctity of our constitution, as an able writer has said inspired almost by The Almighty on High."

I have no idea what I just read. Is this incomprehensible, or is there just some serious gardenpathing going on?

[Alfred L. Brophy]

Yeah, it could have been clearer. I guess in the era before word processing this doesn't surprise me. But thanks for asking about this. There's a lot to unpack about that brief.

The lawyer is saying that he's the son of a Confederate veteran and also that he believes that the Constitution is almost a divine document. The "as an able writer has said" part is, I'm guessing, an allusion to George Washington, but could have been to a lot of people, because the "Constitution was almost divine" sentiment was common in the 18th and 19th centuries. I wonder if the source for this might have been -- get this -- a former US general speaking in 1913 about the honorable service of Confederate veterans in an issue of the Confederate Veteran (a monthly magazine for Confederate heritage):

https://books.google.com/books?id=gCJEAQAAMAAJ&pg=PA211&dq=constitution+almost+wisdom+almighty+confederate+veteran+grosvenor&hl=en&sa=X&ved=0CB4Q6AEwAGoVChMI78uKodiUxwIVy5INCh2gZA1G#v=onepage&q=constitution%20almost%20wisdom%20almighty%20confederate%20veteran%20grosvenor&f=false

If that is the source, this links the Confederate cause and the US Constitution to the cause of property rights for African Americans. Holy cow Ralph Ellison would have loved this. And perhaps that wasn't such a bad strategy to use in arguing to the Oklahoma Supreme Court in the 1930s. (More about this in the next few days.)

But there's no particular need to think that the lawyer was lifting directly from that magazine article. The arguments about the centrality and importance of the Constitution were commonplace in the 1920s and 1930s and what this lawyer did was link support for the Constitution to the case for equal treatment/protection of property rights of African Americans. And he won, though not on the constitutional argument. The Oklahoma Supreme Court simply concluded that the restrictive covenant was improperly executed (I think that there weren't enough signatures).

There's some other very intersting stuff in that paragraph, too. He refers to waving the bloody shirt of prejudice. That's a reference to the argument that southerners complained about -- that Republicans waved a bloody shirt of a US soldier to stir support for Reconstruction. And here he's taking that reference and turning it to a very different use -- to talk about how those supporting the restrictive covenants are referring to race hatred. He uses the bloody shirt allusion to discredit racial prejudice. Pretty cool how he was turning these references on their head, I think. Finally, he uses language from the fifteenth amendment to conclude his call for protection of African American property rights.

[Derek Tokaz]

Al,

To go completely off-topic, I wonder if there are any studies regarding grammatical errors before and after the era of word processing. I had the exact opposite expectation, that before the ability to make edits people would have been more careful. Knowing that we can fix our mistakes lets us be a bit lazy, and then we don't actually go back and fix them, resulting in bad writing.

If you play video games, you'll know this is an increasing trend (and one that's getting a lot of complaints lately). Companies rely a lot on patches downloaded after the fact to fix bugs in the game. It's also pretty common with tabletop games to have an online FAQ fixing problems and adjusting the rules. Go back 20 years and I don't think you see this. All the bugs in Super Mario Bros need to be ironed out before the cartridge hits shelves.

I wouldn't be too surprised to see this creep into the legal arena either. Just look at the most recent ACA case and the Supreme Court's willingness to fix a mistake in the legislation.

Back to the point at hand though, if you like the strategy used in this argument you should read some speeches by Lincoln. He does the exact same move quite a lot. Rather than arguing that someone's principles are wrong, you argue that their principles require a different conclusion. Pretty good thing for every writer to have in his toolbox.

[Alfred L. Brophy]

I don't know of any study about this, but it's an interesting idea. Partly I think our culture has changed and is a lot looser, so that might interfere with a study about grammatical/simple sentence errors In briefs pre and post word processing. As you point out, we can fix errors later, often, so we probably are more willing to let errors ride with the idea they'll be fixed (even if they aren't). I'm guilty of that in blog posts, for sure.

I've noticed quite a few errors in judicial opinions in the pre-Civil War era, particularly as they relate to citations. In a non-negligible number of opinions and treatises from that era, there are incorrect citations. Enough that it poses problems for me tracking cases. That may also reflect that the original cases aren't available, so judges and treatise writers are relying on other reports of the cases.

Tying into key values -- but suggesting that there's another conclusion -- is a good strategy, for sure. Great if you can get people to go there with you. I think part of this lawyer's strategy was to turn to core property rights (with allusions to the Constitution) and then say in essence, "hey, I'm not any more a supporter of civil rights than the rest of you, but this is goes too far. The right of property shouldn't be violated here." Steve Lubet had the apt observation yesterday that this lawyer sounds a lot like what we now think Atticus was like.