RACE, PLACE AND THE LAW, 1836-1948 by David Delaney. Austin: University of Texas Press, 1998. 229 pp. Paper $17.95. ISBN 0-292-71597-8.

Reviewed by Lawrence M. Friedman, Law School, Stanford University.

RACE, PLACE, AND THE LAW begins with an interesting essay about the role of place, of geography in the law (and in society in general). The way we orient ourselves in space, the way we travel through the concrete world, our "geographies of experience," affect how we see the world, how we behave; and also affect the law. Many of the spatial aspects of life we simply take for granted; we never think about "how the world is carved up into meaningful spaces." Consider, for example, how the whole notion of property depends on ideas about space and the meanings of space. And power itself rests on "complex territorial configurations" (p. 6).

All this I found quite insightful and provocative. The rest of the book then proceeds to discuss how "geographies of experience" have affected race relations and the law, in American history. Some aspects of these "geographies" are quite obvious: nothing was more crucial to slavery than the division of the country into slave states and free states. Cases like DRED SCOTT turned on whether crossing the line from slave to free territory erased the legal status of slavery. Once slavery was abolished, the territoriality of race took on different dimensions. A good part of the book considers one of these dimensions, the issue of housing segregation.

I liked this book; I learned a lot from it; it's interesting and well-written. I do have some reservations about the central organizing framework. As I said, I found the opening essay extremely illuminating. But its insights were somewhat disappointing when they came to be actually applied to issues of race relations and the law. Many of the spatial aspects of slavery and segregation are, frankly, rather obvious. In other words, the essay and the framework do not add very much to the story of slavery and segregation-- they do not tell me anything that I did not know before. They simply attach new labels to old stories.

Once you get past this problem, you can sit back and enjoy the book for what it is-- an extremely lucid and informative account of the geography of slavery, the law of housing segregation up to SHELLEY v. KRAEMER, and so on. Others have, of course, plowed particular aspects of this field before; but this is nonetheless a useful synthesis. Slavery, as is well known, created a "house divided against itself;" issues of federalism, fugitive slaves, "personal liberty laws," and the like, arose in the attempt to draw boundary lines around slavery-- lines that ultimately were unable to hold still in a mobile and expanding society.

Especially good are the treatments of housing segregation ordinances and restrictive covenants. The segregation ordinance movement was a "grassroots social movement" aiming at a kind of "municipal apartheid." These ordinances ultimately found their way to the Supreme Court, which struck them down in BUCHANAN v. WARLEY (1917). This was a famous victory. It did not, of course, end housing segregation. The Supreme Court has no way of following-through. All the Court could do, and perhaps all it wanted to do, was to make clear that states and cities had to find subtle or extra-legal ways to discriminate against African-Americans. States could not LEGALLY define juries as all-white; could not blatantly keep blacks off voting lists with grandfather clauses; could not pass ordinances (like the Louisville ordinance in BUCHANAN) that prohibited blacks from living on blocks with white majorities (and vice versa). Nonetheless, southern blacks did not vote or serve on juries or live in white neighborhoods. Restrictive covenants, like the failed ordinances, were supposed to guarantee white neighborhoods and subdivisions against "invasion" by blacks. Delaney explores an interesting, largely forgotten group of cases which turned on the doctrine of "changed conditions." In these cases, the attack on the covenants was not on constitutional grounds, but on the grounds that neighborhood change had made some particular covenant obsolete-- for example, that black families had already "penetrated" into the neighborhood.

Ultimately, the Supreme Court ruled against the covenants in SHELLEY v. KRAEMER (1948). And, of course, all forms of segregation, housing or otherwise, are now totally against the law. Yet, as Delaney points out, racial separation is more than ever a fact of life. Segregation is the rule in "contemporary geographies of race."

A number of factors are to blame, some of them governmental (urban redevelopment, for example). Suburbanization in general has been "a highly racialized process. Of the millions of Americans who participated in the creation of these new worlds, very few were African Americans." The landscape itself remains bounded and localized according to race. So much so, that one can ask whether the legal struggle was worth it: the litigation, arguably, simply did not "deliver the goods."

This last judgment may be a shade too pessimistic. A world in which blacks serve as mayors of big cities, sit in the cabinet and on the Supreme Court-- in which blacks with money can, if they wish, live almost anywhere, presents a "landscape" which in fact is profoundly different from the landscape of slavery, or the segregated landscape of 1940. Exactly how different is, of course, open to debate. Certainly the boundaries of racialized territories are more porous than they were before the civil rights movement and the legal changes that accompanied it.

As I said, I have some skepticism about how far the metaphors of space can be profitably carried; and indeed how far Delaney himself has carried it. But the book is nonetheless insightful and rewarding with regard to the topics it covered; and is recommended reading for those interested in the intersection of race and the law.

Copyright 1995