In the summer of 1986, an embarrassing fact came to light about conservative jurist William Rehnquist, then an associate justice on the U.S. Supreme Court. Rehnquist had been nominated by President Ronald Reagan to become chief justice of the Court, and during his confirmation hearings before the Senate Judiciary Committee, a routine background check unearthed a decades-old deed restriction on the Vermont summer house that Rehnquist had purchased in 1974. The restriction purported to exclude anyone of the “ Hebrew race.”

Another embarrassing deed restriction came to light as well, this one dating back to 1929, on a house that...

Before the turn of the twentieth century, free persons of color seldom faced formal legal measures that excluded them from particular residential areas. All the same, informal norms of racial exclusion were old indeed, particularly with respect to African Americans, the citizens who would become the chief targets of legal exclusion. According to historian Leon Litwak, as early as the 1790s, a minister in Salem, Massachusetts, made a complaint that would echo across the centuries: that the presence of a “Negro hut” would injure the neighborhood, drive out the respectable folk, and drive down property values. Litwak described a second...

When the Supreme Court invalidated racial zoning inBuchanan v. Warleyin 1917, it illustrated the vulnerability of legal devices to higher-level legal norms. Violence might still have been an option to keep a neighborhood segregated, but not everyone was willing to use violence or capable of doing so. Hence it is no surprise that the legal status of covenants would begin to generate much attention after theBuchanandecision ruled out racial zoning, and after the Chicago riots of 1919 gave a special urgency to issues of violence between the races. Racially restrictive covenants were the only legal method...

In the forty-plus years beforeShelley v. Kraemerdisrupted the legal enforceability of racially restrictive covenants, litigation in the courts suggested that these instruments would go largely unpoliced either by constitutional law, property law, or the law of corporations. As we saw in the last chapter, by 1926 it appeared that the U.S. Constitution would have nothing to say about them. Somewhat more restrictively, some states’ property law doctrines of restraints on alienation did limit racial covenants insofar as they applied to residential sales. But when the courts approved covenants against use and occupancy, in effect they reinstated covenant constraints...

In this chapter we will pause to calculate, in at least a rough way, the ways that a white homeowner or prospective homeowner in the first few decades of the twentieth century might have assessed the various options if she wished to live in a segregated residential community. As we shall see in this comparison, there were reasons for favoring racially restrictive covenants as the method. But as we shall also see, the covenant option was sufficiently onerous for individuals that they needed the help of “norm entrepreneurs”—a second topic that we will take up in this chapter. We...

In the last chapter we considered the calculations of a white person trying to decide among various means to keep her neighborhood segregated, and we considered why she might choose racially restrictive covenants. Those covenants gave internal signals of assurance to her white neighbors that they were all committed to “saving the neighborhood.” In this chapter we shall consider the outsiders who were also supposed to receive the signals, particularly the African Americans from whom the white neighborhood was to be “saved.” Of special interest will be the gradual shift through which some of these outsiders stopped paying attention to...

In the middle of August 1945, an African American couple, J. D. Shelley and his wife, Ethel, bought a house on Labadie Avenue in St. Louis. Their white neighbors Louis and Fern Kraemer were not pleased. Neither was the local improvement association, nor the St. Louis Real Estate Exchange, a citywide brokers’ organization that was particularly active in promulgating and enforcing racial covenants. With the association’s and the Exchange’s very active support, the Kraemers filed suit to prevent the Shelleys from taking possession of what they had thought would be their new home. The Kraemers’ claim was based on a...

The Supreme Court decidedShelley v. Kraemerthirty-one years after it upended racial zoning inBuchanan v. Warley. In both these cases the Court departed sharply from existing precedent—inBuchananfrom the then-ruling separate but equal doctrine, and inShelleyfrom three decades of decisions holding that racial covenants were merely private matters rather than state action. But the reaction in the law reviews and press was subtly different by the timeShelleywas decided. As we saw in Chapter 2, before and after the 1917Buchanancase, law review notes in several important journals had favored racial zoning...

As we saw in the last chapter, in the years immediately afterShelley,white neighbors faced a legal universe in which they could no longer count on legal enforcement of racial covenants, and they cast about for substitutes. In this chapter, we analyze some of the situations they faced by analogy to games and strategic interactions. Since we have stressed the signaling function of racial covenants throughout their history, we continue the motif in this chapter, focusing particularly on the interactions between signals and neighborhood “games.”

We will begin with the residual power that covenants retained as signals of neighborhood...

Racially restrictive covenants did many things, but they did not initiate or create the antipathy to residential integration among white Americans. That antipathy long predated racial covenants, as we saw in Chapter 2. Racial covenants did make it possible for this antipathy to harden into action, among many people who would otherwise have been unable to effectuate their antipathies. Violence was always an option in the background, but racial covenants made it possible to mark out neighborhoods as white without resorting to violence—a matter especially important for the urban residents who were not so tightly connected among themselves, and...