Shelley v. Kraemer and the limits of attribution

A court can reach a welcome result through questionable reasoning. That is the distinction to keep in view from the opening: the author celebrates the end of judicial enforcement of racist housing restrictions, then challenges the Court's explanation for that result.

First, picture the restriction. A property deed contains a private agreement that only people of a certain race may occupy the home. Someone later asks a court to enforce that agreement. Shelley v. Kraemer prevents the court from doing so. We can understand why the author welcomes that outcome without assuming the author approves of every step used to reach it.

The second paragraph explains the legal problem. In the framework described here, the Fourteenth Amendment limits state actors, not private individuals. But the covenant was made by private parties. Where does the state enter the picture? That question should occur to us before we get the Court's answer.

The answer is enforcement. The parties create the agreement; a court later gives it force. According to the Court, once the court enforces the agreement, responsibility for its content is attributed to the state. The state cannot escape constitutional limits just because someone else wrote the restriction it is carrying out.

That produces the rule the author will examine: a court may enforce only contractual provisions that the government could constitutionally enact as a general law. A law barring people of a certain race from buying property would fail that test, so judicial enforcement of the same restriction fails too. Notice what this reasoning leaves untouched: the Court treats the private covenant itself as legal. It objects to the state's enforcement of it.

Does that rule reach too far? If every agreement we might want a court to enforce must satisfy the limits placed on government, a great deal of private contracting becomes subject to those limits. Most people making an agreement want the option of asking a court to enforce it later. The supposedly private agreement would therefore have to meet constitutional standards almost from the start.

The speech example makes the difficulty concrete. Parties can settle a dispute by agreeing not to speak publicly about certain matters. Think of a confidentiality promise: one person agrees with another to keep information private. The author says courts enforce such agreements even when the government could not constitutionally impose the identical speech restriction by statute. The point is the difference between enforcing a private promise and making a general law with the same content. Applying Shelley's broad rule would erase that difference.

The author also points to later courts' conduct. They did not apply the attribution approach and continued enforcing agreements like these. That conduct supports the criticism of the rationale. We should describe this carefully: the claim concerns courts' failure to apply this approach, not a claim that the decision is never mentioned or that its result was reversed.

The final paragraph adds a separate objection. The Court called the covenants themselves legal while making their enforcement unconstitutional. The author thinks that misses the real wrong: the racial restriction in the agreement's content. We might think stopping enforcement matters a great deal too. But our answer to a reading question must reflect the author's position, which criticizes the Court for leaving the content unchallenged.

We now have two reasons for the author's negative assessment. The attribution rule has consequences later courts will not accept, and it targets enforcement rather than the discriminatory content. Both criticisms concern the reasoning, while the opening still endorses the result.