Restrictive Covenants: Rule by the Dead Hand of the Past

Many concerns could be raised about racially restrictive deed covenants and the State, including:

1) the risk of defining “private action” out of existence;

2) the risk of the slippery slope (what other agreements might the State decide not to enforce?); and

3) the question whether enforcement or non-enforcement becomes a matter of public policy only because a coercive “public” agency – the State – has claimed a monopoly on enforcement. In contrast, in the private competitive legal system envisioned by Gustave de Molinari, the market (not to mention direct social action) could punish firms that honored racially restrictive covenants. But I’ll leave those considerations aside and confine my comment to but one area.

I should think that in a fully free society restrictive covenants in deeds would be unenforceable because they are feudal in nature and thus violate fundamental libertarian principles. A restrictive covenant constitutes a prohibition that “runs with the land” in perpetuity, permitting rule by the dead hand of the past. Under the covenant the buyer is said to be obligated not only to abide by the restriction himself, say, by never selling to a black person; he is also supposed to pass the restriction along in any resale. Why should that be enforceable? It has the appearance of a naked promise to perform or not perform some action in the future. How is it different from promising to marry someone and then changing your mind? If the restriction is violated, who has been wronged or deprived of just property? The former owner? How so? What if he dies? What about the owners of neighboring homes? Should they have legal recourse when they had no legal relationship with the buyer who violated the covenant?

I acknowledge that in throwing out the bathwater of racially restrictive covenants, I may also be throwing out some desirable babies. But my hunch is that the constructive things we might get from covenants could be achieved other ways. The virtue of my approach to invalidating racially restrictive covenants is that we would both strike another blow against racism and rid ourselves of the last vestiges of feudalism.

Also from This Issue

Lead Essay

  • Context Matters: A Better Libertarian Approach to Antidiscrimination Law by David E. Bernstein

    In this month’s lead essay George Mason University professor of law David E. Bernstein argues that libertarian opposition to antidiscrimination law generally makes sense because the current notion of legally impermissible discrimination is so expansive. He writes: “To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.” However, Bernstein argues that libertarians can accept antidiscrimination law as long as it conforms to an appropriate limiting principle and goes on to argue that Title II of the Civil Rights Act fits the bill. “Many libertarians today, including me, think our predecessors were wrong in their blanket opposition to such laws, in part because they neglected some of the legal and historical context.”

Response Essays

  • Context-Keeping and Community Organizing by Sheldon Richman

    In his reply essay, The Freeman’s Sheldon Richman drives home David Bernstein’s point “that the Southern states operated the equivalent of a ‘white supremacist cartel’ in public accommodations,” but suggests that “direct nonviolent social action” would have been superior to a legal remedy. “Social pressure – the public shaming of bigots – was working,” Richman argues. Title II was not only unnecessary, Richman says, but it shifted the focus from local nonviolent action to Washington, D.C., and laid the groundwork for further clearly unjustified legal limits on private discrimination.

  • The Garden Paths of Ideology by Jason Kuznicki

    In his reply to this month’s lead essay, Cato Unbound’s own Jason Kuznicki argues that “what we got from the 1964 CRA was on balance much, much less coercion. We also got a less racist society…I can’t say exactly why the 1964 CRA worked, but I suspect that Title II, as its most innovative feature, played a big part.” Not only did Title II work, Kuznicki finds it perfectly consistent with his own Hayekian ideological standards. Kuznicki then asks if Title II is Constitutional and expresses some doubts, but implores originalists to focus their energies elsewhere. “[A]dvocates of limited government have scant political capital, so let’s not squander it,” he concludes.

  • What Matters Are Consequences, Not Context by Jeffrey Miron

    Harvard economist Jeffrey Miron vigorously dissents from the conclusion of David Bernstein’s lead essay. “[L]ibertarians should not only oppose Title II,” he writes, “they should shout that opposition from the highest roof tops.” Miron argues that the elements of the Civil Rights Act that targeted government discrimination would have sufficed: “[A]CRA that merely targeted government discrimination would likely have changed the social norm, allowed non-discriminatory forces to emerge, and toppled the Jim Crow regime.” The primary consequences of Title II, Miron argues, were to weaken property rights and set the stage for further interventions such as smoking bans and safety regulations, while “institutionalizing the view that blacks are too weak to overcome discrimination on their own.” Miron finds the libertarian case against Title II so strong that he is surprised to see libertarians defend it. “[I]f libertarians are supporting Title II out of political expediency, they are on a fool’s errand.”

The Conversation