The enforcement of a covenant forbidding use and occupancy of
real estate by non-Caucasians, by an action at law in a state court
to recover damages from a co-covenantor for a breach of the
covenant, is barred by the Fourteenth Amendment of the Federal
Constitution. Pp.
346 U. S.
251-260.
(a) The action of a state court in thus sanctioning a racial
restrictive covenant would constitute state action within the
prohibition of the Fourteenth Amendment. P.
346 U. S.
254.
(b) State action in allowing damages for breach of a covenant
not to permit non-Caucasians to use and occupy their property would
deprive such non-Caucasians, unidentified but identifiable, of
equal protection of the laws in violation of the Fourteenth
Amendment. P.
346 U. S.
254.
(c) The principle that a person cannot challenge the
constitutionality of a statute unless he shows that he himself is
injured by its operation has no application to the instant case, in
which respondent has been sued for damages totaling $11,600, and in
which a judgment against respondent would constitute a direct
pocketbook injury to her. Pp.
346 U. S.
254-256.
(d) Under the peculiar circumstances of this case, the reasons
which underlie the rule denying standing to raise another's
constitutional rights, which is only a rule of practice, are
outweighed by the need to protect the fundamental rights which
would be denied by permitting the damages action to be maintained.
P.
346 U. S.
257.
(e) The principle that the right to equal protection of the laws
is a "personal" right, guaranteed to the individual, rather than to
groups or classes, is not here violated, since it is not
non-Caucasians as a group whose rights are asserted by the
defendant in the damages action, but the rights of particular
non-Caucasian would-be users of restricted land. Pp.
346 U. S.
259-260.
(f) The provision of Art. I, §10 of the Federal Constitution,
that "No State shall . . . pass any . . . Law impairing the
Obligation of Contracts," is not violated by the refusal of a state
court
Page 346 U. S. 250
to enforce a racial restrictive covenant, since that provision
is directed against legislative action only, not against the
judgments of courts. P.
346 U. S.
260.
(g) The plaintiffs in an action for damages for breach of a
racial restrictive covenant are not denied due process and equal
protection of the laws by the state court's refusal to enforce the
covenant, since the Constitution confers upon no individual the
right to demand action by the State which would result in the
denial of equal protection of the laws to others. P.
346 U. S.
260.
112 Cal. App.
2d 534, 247 P.2d 99, affirmed.
Petitioners sued respondent in a California state court to
recover damages for an alleged breach of a racial restrictive
covenant. The trial court sustained a demurrer to the complaint.
The district Court of Appeal affirmed.
112 Cal.
App. 2d 534, 247 P.2d 99. The State Supreme Court denied a
hearing. This Court granted certiorari. 345 U.S. 902.
Affirmed, p.
346 U. S.
260.
Page 346 U. S. 251
MR. JUSTICE MINTON delivered the opinion of the Court.
This Court held in
Shelley v. Kraemer, 334 U. S.
1, that racial restrictive covenants could not be
enforced in equity against Negro purchasers because such
enforcement would constitute state action denying equal protection
of the laws to the Negroes, in violation of the Fourteenth
Amendment to the Federal Constitution. The question we now have is:
can such a restrictive covenant be enforced at law by a suit for
damages against a co-covenantor who allegedly broke the
covenant?
Petitioners [
Footnote 1]
sued respondent at law for damages for breach of a restrictive
covenant the parties entered into as owners of residential real
estate in the same neighborhood in Los Angeles, California. The
petitioners' complaint alleged in part:
"That by the terms of said Agreement each of the signers
promised and agreed in writing and bound himself, his heirs,
executors, administrators, successors, and assigns, by a continuing
covenant that no part of his said real property, described therein,
should ever at any time be used or occupied by any person or
persons not wholly of the white or Caucasian race, and also agreed
and promised in writing that this restriction should be
incorporated in all papers and transfers of lots or parcels of land
hereinabove referred to; provided, however, that said restrictions
should not prevent the employment by
Page 346 U. S. 252
the owners or tenants of said real property of domestic servants
or other employees who are not wholly of the white or Caucasian
race; provided, further, however, that such employees shall be
permitted to occupy said real property only when actively engaged
in such employment. That said Agreement was agreed to be a covenant
running with the land. That each provision in said Agreement was
for the benefit for all the lots therein described."
The complaint further alleged that respondent broke the covenant
in two respects: (1) by conveying her real estate without
incorporating in the deed the restriction contained in the
covenant; and (2) by permitting non-Caucasians to move in and
occupy the premises. The trial court sustained a demurrer to the
complaint, the District Court of Appeals for the Second Appellate
District affirmed,
112 Cal. App.
2d 534, 247 P.2d 99, and the Supreme Court of California denied
hearing. We granted certiorari, 345 U.S. 902, because of the
importance of the constitutional question involved and to consider
the conflict which has arisen in the decisions of the state courts
since our ruling in the
Shelley case,
supra. Like
the California court in the instant case, the Supreme Court of
Michigan sustained the dismissal of a claim for damages for breach
of a racial restrictive covenant,
Phillips v. Naff, 332
Mich. 389,
52 N.W.2d
158.
See also Roberts v. Curtis, 93 F. Supp.
604. The Supreme Court of Missouri reached a contrary result,
Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127, while the
Supreme Court of Oklahoma has held that a claim for damages may be
maintained against a white seller, an intermediate straw man, and a
non-Caucasian purchaser for a conspiracy to violate the covenant,
Correll v. Earley, 205 Okl. 366,
237 P.2d
1017.
Page 346 U. S. 253
The trial court in the case here held a party to a covenant
restricting use and occupancy [
Footnote 2] of real estate to Caucasians could not
maintain a suit at law against a co-covenantor for breach of the
covenant because of our ruling in
Shelley, supra. In
Shelley, this Court held that the action of the lower
courts in granting equitable relief in the enforcement of such
covenants constituted state action denying to Negroes, against whom
the covenant was sought to be enforced, equal protection of the
laws in violation of the Fourteenth Amendment. This Court said:
"We conclude, therefore, that the restrictive agreements,
standing alone, cannot be regarded as a violation of any rights
guaranteed to petitioners by the Fourteenth Amendment. So long as
the purposes of those agreements are effectuated by voluntary
adherence to their terms, it would appear clear that there has been
no action by the State, and the provisions of the Amendment have
not been violated. . . ."
334 U. S. 334 U.S.
1,
334 U. S. 13.
That is to say, the law applicable in that case did not make the
covenant itself invalid, no one would be punished for making it,
and no one's constitutional rights were violated by the
covenantor's voluntary adherence thereto. Such voluntary adherence
would constitute individual action only. When, however, the parties
cease to rely upon voluntary action to carry out the covenant and
the State is asked to step in and give its sanction to the
enforcement of the covenant, the first question
Page 346 U. S. 254
that arises is whether a court's awarding damages constitutes
state action under the Fourteenth Amendment. To compel respondent
to respond in damages would be for the State to punish her for her
failure to perform her covenant to continue to discriminate against
non-Caucasians in the use of her property. The result of that
sanction by the State would be to encourage the use of restrictive
covenants. To that extent, the State would act to put its sanction
behind the covenants. If the State may thus punish respondent for
her failure to carry our her covenant, she is coerced to continue
to use her property in a discriminatory manner, which, in essence,
is the purpose of the covenant. Thus, it becomes not respondent's
voluntary choice, but the State's choice that she observe her
covenant or suffer damages. The action of a state court at law to
sanction the validity of the restrictive covenant here involved
would constitute state action as surely as it was state action to
enforce such covenants in equity, as in
Shelley,
supra.
The next question to emerge is whether the state action in
allowing damages deprives anyone of rights protected by the
Constitution. If a state court awards damages for breach of a
restrictive covenant, a prospective seller of restricted land will
either refuse to sell to non-Caucasians or else will require
non-Caucasians to pay a higher price to meet the damages which the
seller may incur. Solely because of their race, non-Caucasians will
be unable to purchase, own, and enjoy property on the same terms as
Caucasians. Denial of this right by state action deprives such
non-Caucasians, unidentified but identifiable, of equal protection
of the laws in violation of the Fourteenth Amendment.
See
Shelley, supra.
But unlike
Shelley, supra, no non-Caucasian is before
the Court claiming to have been denied his constitutional rights.
May respondent, whom petitioners seek to coerce by an action to pay
damages for her failure to honor her
Page 346 U. S. 255
restrictive covenant, rely on the invasion of the rights of
others in her defense to this action?
Ordinarily, one may not claim standing in this Court to
vindicate the constitutional rights of some third party. Reference
to this rule is made in varied situations.
See Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.
S. 123,
341 U. S.
149-154 (concurring opinion). The requirement of
standing is often used to describe the constitutional limitation on
the jurisdiction of this Court to "cases" and "controversies."
See Coleman v. Miller, 307 U. S. 433,
307 U. S. 464
(concurring opinion). Apart from the jurisdictional requirement,
this Court has developed a complementary rule of self-restraint for
its own governance (not always clearly distinguished from the
constitutional limitation) which ordinarily precludes a person from
challenging the constitutionality of state action by invoking the
rights of others.
See Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S.
346-348 (concurring opinion). The common thread
underlying both requirements is that a person cannot challenge the
constitutionality of a statute unless he shows that he himself is
injured by its operation. [
Footnote
3] This principle has no application to the instant
Page 346 U. S. 256
case in which respondent has been sued for damages totaling
$11,600, and in which a judgment against respondent would
constitute a direct, pocketbook injury to her.
There are still other cases in which the Court has held that,
even though a party will suffer a direct substantial injury from
application of a statute, he cannot challenge its constitutionality
unless he can show that he is within the class whose constitutional
rights are allegedly infringed.
Bode v. Barrett,
344 U. S. 583,
344 U. S. 585;
Jeffrey Mfg. Co. v. Blagg, 235 U.
S. 571,
235 U. S. 576;
New York ex rel. Hatch v. Reardon, 204 U.
S. 152,
204 U. S.
160-161;
see also Tennessee Elec. Power Co. v.
Tennessee Valley Authority, 306 U. S. 118,
306 U. S. 144.
[
Footnote 4] One reason for
this ruling is that the state court, when actually faced with the
question, might narrowly construe the statute to obliterate the
objectionable feature, or it might declare the unconstitutional
provisions separable.
New York ex rel. Hatch v. Reardon,
supra, at
204 U. S.
160-161;
Wuchter v. Pizzutti, 276 U. S.
13,
276 U. S. 26-28
(dissenting opinion). It would indeed be undesirable for this Court
to consider every conceivable situation which might possibly arise
in the application of complex and comprehensive legislation. Nor
are we so ready to frustrate the expressed will of Congress or
that
Page 346 U. S. 257
of the state legislatures.
Cf. Southern Pacific Co. v.
Gallagher, 306 U. S. 167,
306 U. S.
172.
This is a salutary rule, the validity of which we reaffirm. But,
in the instant case, we are faced with a unique situation in which
it is the action of the state court which might result in a denial
of constitutional rights and in which it would be difficult if not
impossible for the persons whose rights are asserted to present
their grievance before any court. Under the peculiar circumstances
of this case, we believe the reasons which underlie our rule
denying standing to raise another's rights, which is only a rule of
practice, are outweighed by the need to protect the fundamental
rights which would be denied by permitting the damages action to be
maintained.
Cf. Quong Ham Wah Co. v. Industrial Acc.
Comm., 184 Cal. 26, 192 P. 1021.
In other unique situations which have arisen in the past, broad
constitutional policy has led the Court to proceed without regard
to its usual rule. In
Pierce v. Society of Sisters,
268 U. S. 510, a
state statute required all parents (with certain immaterial
exceptions) to send their children to public schools. A private and
a parochial school brought suit to enjoin enforcement of the act on
the ground that it violated the constitutional rights of parents
and guardians. No parent or guardian to whom the act applied was a
party or before the Court. The Court held that the act was
unconstitutional because it "unreasonably interferes with the
liberty of parents and guardians to direct the upbringing and
education of children under their control."
Pierce v. Society
of Sisters, supra, at
268 U. S. 534-535. In short, the schools were permitted
to assert in defense of their property rights and constitutional
rights of the parents and guardians.
See also Joint
Anti-Fascist Refugee Comm. v. McGrath, supra, at
341 U. S. 141,
341 U. S.
153-154;
Columbia Broadcasting System v. United
States, 316 U. S. 407,
316 U. S.
422-423;
Helvering
v.
Page 346 U. S. 258
Gerhardt, 304 U. S. 405;
Truax v. Raich, 239 U. S. 33;
United States v. Railroad
Co., 17 Wall. 322;
Quong Ham Wah Co. v.
Industrial Acc. Comm., supra; cf. United States v. Jeffers,
342 U. S. 48,
342 U. S. 52;
Federal Communications Comm'n v. Sanders Brothers Radio
Station, 309 U. S. 470;
Wuchter v. Pizzutti, supra.
There is such a close relationship between the restrictive
covenant here and the sanction of a state court which would punish
respondent for not going forward with her covenant, and the purpose
of the covenant itself, that relaxation of the rule is called for
here. It sufficiently appears that mulcting in damages of
respondent will be solely for the purpose of giving vitality to the
restrictive covenant, that is to say, to punish respondent for not
continuing to discriminate against non-Caucasians in the use of her
property. This Court will not permit or require California to
coerce respondent to respond in damages for failure to observe a
restrictive covenant that this Court would deny California the
right to enforce in equity,
Shelley, supra; or that this
Court would deny California the right to incorporate in a statute,
Buchanan v. Warley, 245 U. S. 60; or
that could not be enforced in a federal jurisdiction because such a
covenant would be contrary to public policy:
"It is not consistent with the public policy of the United
States to permit federal courts in the Nation's capital to exercise
general equitable powers to compel action denied the state courts
where such state action has been held to be violative of the
guaranty of the equal protection of the laws. We cannot presume
that the public policy of the United States manifests a lesser
concern for the protection of such basic rights against
discriminatory action of federal courts than against such action
taken by the courts of the States."
Hurd v. Hodge, 334 U. S. 24,
344 U. S. 35-36.
See also Roberts v. Curtis, supra.
Page 346 U. S. 259
Consistency in the application of the rules of practice in this
Court does not require us in this unique set of circumstances to
put the State in such an equivocal position simply because the
person against whom the injury is directed is not before the Court
to speak for himself. The law will permit respondent to resist any
effort to compel her to observe such a covenant, so widely
condemned by the courts, since she is the one in whose charge and
keeping reposes the power to continue to use her property to
discriminate or to discontinue such use. The relation between the
coercion exerted on respondent and her possible pecuniary loss
thereby is so close to the purpose of the restrictive covenant, to
violate the constitutional rights of those discriminated against,
that respondent is the only effective adversary of the unworthy
covenant in its last stand. She will be permitted to protect
herself and, by so doing, close the gap to the use of this
covenant, so universally condemned by the courts.
Petitioners argue that the right to equal protection of the laws
is a "personal" right, guaranteed to the individual, rather than to
groups or classes. For instance, discriminatory denial of sleeping
and dining-car facilities to an individual Negro cannot be
justified on the ground that there is little demand for such
facilities by Negroes as a group.
McCabe v. Atchison, T. &
S.F. R. Co., 235 U. S. 151,
235 U. S.
161-162.
See Sweatt v. Painter, 339 U.
S. 629,
339 U. S. 635.
This description of the right as "personal," when considered in the
context in which it has been used, obviously has no bearing on the
question of standing. Nor do we violate this principle by
protecting the rights of persons not identified in this record. For
instance, in the
Pierce case, the persons whose rights
were invoked were identified only as "present and prospective
patrons" of the two schools.
Pierce v. Society of Sisters,
supra, at
268 U. S. 535.
In the present case, it is not non-Caucasians
Page 346 U. S. 260
as a group whose rights are asserted by respondent, but the
rights of particular non-Caucasian would-be users of restricted
land.
It is contended by petitioners that for California courts to
refuse to enforce this covenant is to impair the obligations of
their contracts. Article I, § 10, of the Federal Constitution
provides: "No State shall . . . pass any . . . Law impairing the
Obligation of Contracts. . . ." The short answer to this contention
is that this provision, as its terms indicate, is directed against
legislative action only.
"It has been settled by a long line of decisions that the
provision of § 10, Article I, of the Federal Constitution,
protecting the obligation of contracts against state action, is
directed only against impairment by legislation, and not by
judgments of courts. . . ."
Tidal Oil Co. v. Flanagan, 263 U.
S. 444,
263 U. S.
451.
It is finally contended that petitioners are denied due process
and equal protection of the laws by the failure to enforce the
covenants. The answer to that proposition is stated by the Court in
Shelley, supra, in these words:
"The Constitution confers upon no individual the right to demand
action by the State which results in the denial of equal protection
of the laws to other individuals. . . ."
334 U. S. 334 U.S.
1,
334 U. S. 22.
The judgment is
Affirmed.
MR. JUSTICE REED and MR. JUSTICE JACKSON took no part in the
consideration or decision of this case.
[
Footnote 1]
Petitioner Pikaar was not a signer of the covenant, but is
successor in interest of a signer.
[
Footnote 2]
There is no question of restraint of sale here, as agreements
restraining sale of land to members of defined racial groups have
long been held unenforceable in California because they contravened
the State's statutory rule and public policy against restraints on
alienation.
Wayt v. Patee, 205 Cal. 46, 269 P. 660;
Title Guarantee & Trust Co. v. Garrott, 42 Cal. App.
152, 183 P. 470.
[
Footnote 3]
See Frothingham v. Mellon, 262 U.
S. 447,
262 U. S.
486-489 (federal taxpayer sought to challenge a federal
statute in the enforcement of which federal revenues were applied);
Doremus v. Board of Education, 342 U.
S. 429,
342 U. S. 434
(state taxpayer unable to show that there was "a measurable
appropriation or disbursement of . . . funds occasioned solely by
the [state] activities complained of");
Tileston v.
Ullman, 318 U. S. 44
(doctor sought a declaratory judgment that a state statute would
deprive certain of his patients of their lives without due process
of law);
Tyler v. The Judges of the Court of Registration,
179 U. S. 405,
179 U. S. 410
(landowner sought to challenge the notice provisions for a land
registration proceeding in which he had not made himself a party,
although he had notice of the proceedings, and even though "his
interest in the land would remain unaffected" if the act were
subsequently declared unconstitutional);
Gange Lumber Co. v.
Rowley, 326 U. S. 295;
Alabama Power Co. v. Ickes, 302 U.
S. 464,
302 U. S.
478-480;
cf. McCabe v. Atchison, T. & S.F. R.
Co., 235 U. S. 151,
235 U. S.
162-164 (four Negroes who sought to enjoin enforcement
of discriminatory state action denied relief on the ground that
they failed to allege that they themselves had suffered, or were
about to suffer, discriminatory treatment for which there was no
adequate remedy at law).
And compare Doremus v. Board of
Education, supra, with Illinois ex rel. McCollum v. Board of
Education, 333 U. S. 203,
333 U. S. 206,
333 U. S.
234.
[
Footnote 4]
Cf. Goldstein v. United States, 316 U.
S. 114;
Hale v. Henkel, 201 U. S.
43,
201 U. S. 69-70,
and the lower court cases which restrict to the person whose
premises were invaded the right to have illegally seized evidence
excluded. The rights in these cases are obviously closely linked to
the person of the individual.
MR. CHIEF JUSTICE VINSON, dissenting.
This case, we are told, is "unique." I agree with the
characterization. The Court, by a unique species of
Page 346 U. S. 261
arguments, has developed a unique exception to an otherwise
easily understood doctrine. While I may hope that the majority's
use of "unique" is but another way of saying that the decision
today will be relegated to its precise facts tomorrow, I must voice
my dissent.
The majority seems to recognize, albeit ignore, a proposition
which I thought was made plain in the
Shelley case.
[
Footnote 2/1] That proposition is
this: these racial restrictive covenants, whatever we may think of
them, are not legal nullities so far as any doctrine of federal law
is concerned; it is not unlawful to make them; it is not unlawful
to enforce them unless the method by which they are enforced in
some way contravenes the Federal Constitution or a federal
statute.
Thus, in the
Shelley case, it was not the covenants
which were struck down, but judicial enforcement of them against
Negro vendees. The question which we decided was simply whether a
state court could decree the ouster of Negroes from property which
they had purchased and which they were enjoying. We held that it
could not. We held that such judicial action, which operated
directly against the Negro petitioners and deprived them of their
right to enjoy their property solely because of their race, was
state action and constituted a denial of "equal protection."
[
Footnote 2/2]
Page 346 U. S. 262
This case is different.
The majority identifies no non-Caucasian who has been injured or
could be injured if damages are assessed against respondent for
breaching the promise which she willingly and voluntarily made to
petitioners, a promise which neither the federal law nor the
Constitution proscribes. Indeed, the non-Caucasian occupants of the
property involved in this case will continue their occupancy
undisturbed, regardless of the outcome of the suit. The state court
was asked to do nothing which would impair their rights or their
enjoyment of the property.
The plain, admitted fact that there is no identifiable
non-Caucasian before this Court who will be denied any right to
buy, occupy or otherwise enjoy the properties involved in this
lawsuit, or any other particular properties, is decisive to me. It
means that the constitutional defect, present in the
Shelley case, is removed from this case. It means that
this Court has no power to deal with the constitutional issue which
respondent seeks to inject in this litigation as a defense to her
breach of contract. It means that the covenant, valid on its face,
can be enforced between the parties -- unless California law or
California policy forbids its enforcement -- without running afoul
of any doctrine ever promulgated by this Court, without any
interference from this Court.
Page 346 U. S. 263
I turn, first, to the matter of our power to decide this case.
The majority states the issue:
". . . May respondent, whom petitioners seek to coerce by an
action to pay damages for her failure to honor her restrictive
covenant, rely on the invasion of the rights of others in her
defense to this action?"
Logically, this issue should be met where such an issue is
usually met -- at the "threshold"; [
Footnote 2/3] this decision should precede any
discussion of the merits of respondent's constitutional claim. Yet
it is not amiss to point out that the majority has failed to put
first things first; it decides the merits and then, comforted by
its decision on the merits, resolves its doubts that it has power
to decide the merits.
A line of decisions -- long enough to warrant the respect of
even the most hardened skeptic of the strength of
stare
decisis as an effective limitation upon this Court's exercise
of jurisdiction in constitutional cases -- establishes the
principle [
Footnote 2/4] which
should stay this Court from deciding
Page 346 U. S. 264
what it decides today -- from doing what it does today -- from
imposing a novel constitutional limitation upon the power of the
courts of the several states to enforce their own contract laws as
they choose. This deep-rooted, vital doctrine demands that the
Court refrain from deciding a constitutional issue until it has a
party before it was has standing to raise the issue. [
Footnote 2/5] The majority agrees that this
is a "salutary" principle, and supplies us with but a small
sampling of the cases to show that it has been rigorously applied
in many varied situations, and surely no sophistry is required to
apply it to this case. Accordingly, respondent must show, at the
outset, that she, herself, and not some unnamed person in an
Page 346 U. S. 265
amorphous class, is the victim of the unconstitutional
discrimination of which she complains. [
Footnote 2/6]
Respondent makes no such showing. She does not ask the Court to
protect her own constitutional rights, nor even the rights of the
persons who now occupy her property. Instead, she asks the Court to
protect the rights of those non-Caucasians -- whoever they may be
-- who might, at some point, be prospective vendees of some other
property encumbered by some other similar covenant. Had respondent
failed to designate herself as the agent of this anonymous,
amorphous class, the majority certainly would have no power to
vindicate its rights. Yet, because respondent happens to have
decided to act as the self-appointed agent of these principals whom
she cannot identify -- in order to relieve herself of the
obligations of her own covenant -- the majority finds itself able
to assert
Page 346 U. S. 266
the power over state courts which it asserts today. I do not
think that such tenuous circumstances can spawn the broad
constitutional limitation upon state courts which springs from
today's decision. [
Footnote
2/7]
Yet we are told that the rule which restricts our power to
impose this constitutional limitation is but a rule of
"self-restraint." So is every other jurisdictional limitation which
depends, in the last analysis, solely upon this Court's willingness
to govern its own exercise of power. And certainly to characterize
the rule as self-imposed does not mean that it is self-removable by
a simple self-serving process of argument. Yet the majority's
logic, reduced to its barest outlines, seems to proceed in that
fashion. We are told that the reasons for the self-imposed rule,
which precludes us from reaching the merits, have been dissipated
in this case, but the only reason why the reasons do not exist is
because the Court first holds for respondent, and, having thus
decided the merits, it feels free to abandon the rule which should
preclude it from reaching the merits. In my view, respondent
cannot
Page 346 U. S. 267
surmount the hurdle of our well established rule by proceeding
with an argument which carries her in a circle right back to her
precise point of departure. If it should be, as the majority
assumes, that there is no other way that the rights of unidentified
non-Caucasians can be vindicated in court, that is only an
admission that there is no way in which a substantial case or
controversy can be predicated upon the right which the majority is
so anxious to pass upon. I cannot assent to a manner of vindicating
the constitutional rights of persons unknown, which puts personal
predisposition in a paramount position over well established
proscriptions on power.
But even if the merits are to be reached, even if we must decide
whether enforcement of this covenant in a lawsuit of this kind is
state action which contravenes the Fourteenth Amendment, I think
that the absence of any direct injury to any identifiable
non-Caucasian is decisive. The
Shelley case, resting on
the express determination that restrictive covenants are valid
between the parties, dealt only with a state court's attempt to
enforce them directly against innocent third parties whose right to
enjoy their property would suffer immediate harm.
In this case, the plaintiffs have not sought such relief. The
suit is directed against the very person whose solemn promise
helped to bring the covenant into existence. The plaintiffs ask
only that respondent do what she in turn had a right to ask of
plaintiffs -- indemnify plaintiffs for the bringing about of an
event which she recognized would cause injury to the plaintiffs. We
need not concern ourselves now with any question of whether this
injury is fancied or real. The short of that matter is that the
parties thought that any influx of non-Caucasian neighbors would
impair their enjoyment of their properties, and, whether right or
wrong, each had the right to control the use of his property
against that event, and to exact a promise from his or her neighbor
that he or
Page 346 U. S. 268
she would act accordingly. And that is precisely what
petitioners and respondent did. Moreover, we must, at this pleading
stage of the case, accept it as a fact that respondent has thus far
profited from the execution of this bargain; observance of the
covenant by petitioners raised the value of respondent's
properties. By this suit, the plaintiffs sought only to have
respondent disgorge that which was gained at the expense of
depreciation in her neighbors' property.
The majority speaks of this as an attempt to "coerce" respondent
to continue to abide by her agreement. Yet the contract has already
been breached. The non-Caucasians are in undisturbed occupancy.
Furthermore, the respondent consented to the "coercion" -- if
"coercion" there be -- by entering into the covenant. Plaintiffs
ask only that respondent now pay what she legally obligated herself
to pay for an injury which she recognized would occur if she did
what she did.
Of course, there may be other elements of coercion. Coercion
might result on the minds of some Caucasian property owners who
have signed a covenant such as this, for they may now feel an
economic compulsion to abide by their agreements. But visiting
coercion upon the minds of some unidentified Caucasian property
owners is not at all the state action which was condemned in the
Shelley case. In that case, the state court had directed
"the full coercive power of government" against the Negro
petitioners -- forcefully removing them from their property because
they fell in a class discriminatorily defined. But, in this case,
where no identifiable third person can be directly injured if
respondent is made to disgorge enough to indemnify petitioners, the
Court should not undertake to hold that the Fourteenth Amendment
stands as a bar to the state court's enforcement of its contract
law.
Page 346 U. S. 269
Obviously we can only interfere in this case if the Fourteenth
Amendment compels us to do so, for that is the only basis upon
which respondent seeks to sustain her defense. While we are limited
to enforcement of the Fourteenth Amendment, the state courts are
not; they may decline to recognize the covenants for other reasons.
Since we must rest our decision on the Constitution alone, we must
set aside predilections on social policy and adhere to the settled
rules which restrict the exercise of our power of judicial review
-- remembering that the only restraint upon this power is our own
sense of self-restraint. [
Footnote
2/8]
Because I cannot see how respondent can avail herself of the
Fourteenth Amendment rights of total strangers -- the only rights
which she has chosen to assert -- and since I cannot see how the
Court can find that those rights would be impaired in this
particular case by requiring respondent to pay petitioners for the
injury which she recognizes that she has brought upon them, I am
unwilling to join the Court in today's decision.
[
Footnote 2/1]
Shelley v. Kraemer, 334 U. S. 1
(1949).
[
Footnote 2/2]
The state action which we struck down was epitomized in this
language, 334 U.S. at
334 U. S. 19:
"We have no doubt that there has been state action in these
cases in the full and complete sense of the phrase. The undisputed
facts disclose that petitioners were willing purchasers of
properties upon which they desired to establish homes. The owners
of the properties were willing sellers; and contracts of sale were
accordingly consummated. It is clear that, but for the active
intervention of the state courts, supported by the full panoply of
state power, petitioners would have been free to occupy the
properties in question without restraint."
"These are not cases, as has been suggested, in which the States
have merely abstained from action, leaving private individuals free
to impose such discriminations as they see fit. Rather, these are
cases in which the States have made available to such individuals
the full coercive power of government to deny to petitioners, on
the grounds of race or color, the enjoyment of property rights in
premises which petitioners are willing and financially able to
acquire and which the grantors are willing to sell. . . ."
[
Footnote 2/3]
Compare Montgomery Building & Construction Trades
Council v. Ledbetter Erection Co., 344 U.
S. 178,
344 U. S. 179
(1952);
United Public Workers v. Mitchell, 330 U. S.
75,
330 U. S. 86
(1947).
[
Footnote 2/4]
The principle derives, of course, from the nature of the
judicial power conferred by Art. III of the Constitution. At a very
early stage in this Court's history, Chief Justice Marshall put the
matter thus:
". . . The article does not extend the judicial power to every
violation of the constitution which may possibly take place, but to
'a case in law or equity' in which a right, under such law, is
asserted in a Court of justice. If the question cannot be brought
into a Court, then there is no case in law or equity, and no
jurisdiction is given by the words of the article. . . ."
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S. 405
(1821).
And see the discussion of this principle and its
ramifications in Mr. Justice Brandeis' concurring opinion in
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S. 341
(1936).
[
Footnote 2/5]
MR. JUSTICE FRANKFURTER, concurring in
Coleman v.
Miller, 307 U. S. 433,
307 U. S. 461
(1939), sets forth the basis of the principle which I believe the
Court has failed to observe today:
"In endowing this Court with 'judicial Power' the Constitution
presupposed an historic content for that phrase and relied on
assumption by the judiciary of authority only over issues which are
appropriate for disposition by judges. . . ."
"
* * * *"
". . . It is our ultimate responsibility to determine who may
invoke our judgment and under what circumstances. . . . The scope
and consequences of our doctrine of judicial review over executive
and legislative action should make us observe fastidiously the
bounds of the litigious process within which we are confined. No
matter how seriously infringement of the Constitution may be called
into question, this is not the tribunal for its challenge except by
those who have some specialized interest of their own to vindicate,
apart from a political concern which belongs to all.
Stearns v.
Wood, 236 U. S. 75;
Fairchild v.
Hughes, 258 U. S. 126."
"
* * * *"
"We can only adjudicate an issue as to which there is a claimant
before us who has a special, individualized stake in it. One who is
merely the self-constituted spokesman of a constitutional point of
view can not ask us to pass on it. . . ."
[
Footnote 2/6]
Tyler v. Judges of the Court of Registration,
179 U. S. 405
(1900), while not the first, is generally cited as the leading case
on this aspect of the rules governing our exercise of jurisdiction.
The Court said:
"The prime object of all litigation is to establish a right
asserted by the plaintiff or to sustain a defense set up by the
party pursued. Save in a few instances where, by statute or the
settled practice of the courts, the plaintiff is permitted to sue
for the benefit of another, he is bound to show an interest in the
suit personal to himself, and even in a proceeding which he
prosecutes for the benefit of the public, as, for example, in cases
of nuisance, he must generally aver an injury peculiar to himself,
as distinguished from the great body of his fellow citizens."
179 U.S. at
179 U. S. 406.
This historic view has been voiced again and again and applied in
various situations down through the decades.
See, e.g.,
Lampasas v. Bell, 180 U. S. 276
(1901);
Cronin v. Adams, 192 U. S. 108
(1904);
The Winnebago, 205 U. S. 354
(1907);
Rosenthal v. New York, 226 U.
S. 260 (1912);
McCabe v. Atchison, T. & S.R. R.
Co., 235 U. S. 151
(1914);
Jeffrey Manufacturing Co. v. Blagg, 235 U.
S. 571 (1915);
Sprout v. City of South Bend,
277 U. S. 163
(1928);
Tileston v. Ullman, 318 U. S.
44 (1943);
Gange Lumber Co. v. Rowley,
326 U. S. 295
(1945);
Bode v. Barrett, 344 U. S. 583
(1953).
[
Footnote 2/7]
Similarly, I think that respondent's reliance, in her brief, on
Buchanan v. Warley, 245 U. S. 60
(1917), as a precedent to show that she has met the minimum
requirements on standing, is misplaced. In that case, a white
vendor attacked a zoning ordinance which prohibited the sale of his
property to any Negroes. The Court held he had standing to attack
the ordinance, since his constitutional attack was founded on the
theory that the ordinance unconstitutionally abridged his right to
sell his property to any willing purchaser, and not on the theory
that it abridged the Negro vendee's right to buy property without
being subject to discrimination by the state. The Court then held
the statute invalid as an unreasonable classification.
Similarly, in
Pierce v. Society of Sisters,
268 U. S. 510
(1925), upon which the majority relies, a private school challenged
a state law forbidding private education on the theory that the
statute unreasonably abridged its (the school's) property rights.
It was the assertion of the school's property rights which the
Court considered in determining the validity of the statute.
[
Footnote 2/8]
See Mr. Justice Stone dissenting in
United States
v. Butler, 297 U. S. 1,
297 U. S. 78-79
(1936).