The Color of Law

The Color of Law

by

Richard Rothstein

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Separation of Powers, Legal Activism, and Minority Rights Theme Analysis

Themes and Colors
De Jure vs. De Facto Segregation Theme Icon
Segregation and the Preservation of Racial Caste Theme Icon
Racism, Profit, and Political Gain Theme Icon
Separation of Powers, Legal Activism, and Minority Rights Theme Icon
LitCharts assigns a color and icon to each theme in The Color of Law, which you can use to track the themes throughout the work.
Separation of Powers, Legal Activism, and Minority Rights Theme Icon

In his Preface to The Color of Law, Richard Rothstein notes that the U.S. government only truly began addressing de jure (legally-mandated) segregation in 1968, with the Fair Housing Act, even though it had already been ostensibly illegal for more than a century, since the ratification of the Fifth and Fourteenth Amendments (which require “equal protection” for all people by federal and state governments, respectively). Why did it take so long for the American government to begin following its own Constitution? Having antidiscrimination laws on the books, Rothstein emphasizes, does not mean discrimination will not occur, whether by private individuals, corporations, or the government itself. In fact, Rothstein shows how the American system of government is both stronger and weaker because of its separation of powers: the executive branch can essentially ignore laws unless it is stopped by the courts, which usually only act after the discriminatory deed is done, and so can seldom reverse unconstitutional executive action. Rather, to truly undo residential segregation and protect the rights of African Americans and other minority groups, legislation must be passed with the support of public opinion: this is the only way to keep government constitutional and protect minority groups’ rights in the United States.

Throughout the 20th century, the executive branch and local governments strayed widely from the law, and were only reined in by the courts—and only to a limited extent. Zoning laws are an excellent example of this process. Even though the Fourteenth Amendment banned cities from subjecting different racial groups to different laws, not only was pervasive legal segregation widespread in the South for nearly a century after the end of Reconstruction, but cities like Baltimore, Louisville, and Atlanta passed explicitly racial zoning ordinances that reserved certain blocks or neighborhoods for only white or black residents. Until the 1960s, the Fourteenth Amendment was an ideal seldom reflected by reality—precisely because local governments and the executive branch of the federal government decided against implementing it. In the 1917 case Buchanan v. Warley, the Supreme Court decided that Louisville’s block-by-block segregated zoning policy was unconstitutional—but it was too late, as the policy had essentially already been put into place. Similarly, the Atlanta city government continued using a segregated neighborhood map “for decades” after the Supreme Court deemed it unconstitutional. Other cities also found ways to racially segregate themselves without violating the Supreme Court’s specific ruling—most commonly, they implemented zoning laws that prevented the construction of apartment buildings in white suburban neighborhoods. All these examples show how, when told by the Supreme Court that their laws were unconstitutional, local governments sought ways to technically follow the Court’s orders but continue violating the Constitution’s intent. Something similar happened with the Federal Housing Administration (FHA) after the Supreme Court ruled restrictive covenants—paragraphs in property deeds that prohibited a house from being sold to nonwhite people—to be unconstitutional in the 1948 case Shelley v. Kraemer. In response, the FHA exhibited “massive resistance” to the Court’s decision and openly flouted the ruling by continuing to support restrictive covenants. Even though the Court determined these covenants unconstitutional because they were racist, the director of the FHA publicly announced that he was looking for a new, “objective” way to ban people from getting mortgages “because of race.”

These examples show why, although the court system can rein in executive agencies and local governments when they stray too far from what is constitutionally permitted, judicial action is not enough to actually reverse segregation. Rather, this requires action by the legislative branch. In many cases where the Supreme Court does intervene, Rothstein notes, it is already “too late” to stop segregation: people have already moved into segregated housing in segregated neighborhoods, and the Court’s decision serves only as a footnote, marking what has happened as unconstitutional. For instance, in Miami, the Court did not stop discrimination in Section 8 vouchers until 1998, several decades after this discrimination began. Similarly, near San Francisco after World War II, the California Supreme Court did not rule on behalf of illegally-fired African American shipyard workers until “the shipyards [had] shut down.” This is a constant pattern: because the damage of segregation is already done and embedded into the American urban landscape, Rothstein argues, it is too late to “provide adequate justice” for the damages caused. This does not mean that it is not worth trying to reverse segregation—only that stopping future segregation through the courts does nothing to repair the harms caused by past segregation. Rather, Rothstein concludes that truly reversing segregation—to whatever extent this is possible—“will require a national political consensus that leads to legislation.” In other words, the public needs to pressure Congress to take affirmative and definitive steps toward integrating American cities.

In addition to providing a detailed history of 20th-century housing segregation, then, The Color of Law also addresses two important questions about the nature of government. First, how can a government be forced to follow its own rules? And secondly, how can a democratic system ensure that it protects the rights of its minorities? However, Rothstein does not provide definitive answers to either of these questions: he notes that the judiciary’s purpose is to resolve these problems and to defend the rights of minorities by keeping executive agencies and lower-level (state and local) governments within the bounds of the laws that protect them. But the courts do not always succeed in doing this, and are often too slow to effect the necessary change, which means that the majority are often able to trample on the rights of minorities (and especially those of African Americans). Ultimately, Rothstein’s attention to the wide gap between the American government’s laws and its actions leads him to call for “the American community” as a whole to take collective responsibility for its crimes against African Americans, historical and present, and pressure Congress to integrate American cities through legislation. While the government will never function perfectly, it is citizens’ responsibility to push it toward constant improvement.

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Separation of Powers, Legal Activism, and Minority Rights Quotes in The Color of Law

Below you will find the important quotes in The Color of Law related to the theme of Separation of Powers, Legal Activism, and Minority Rights.
Preface Quotes

By failing to recognize that we now live with the severe, enduring effects of de jure segregation, we avoid confronting our constitutional obligation to reverse it. If I am right that we continue to have de jure segregation, then desegregation is not just a desirable policy; it is a constitutional as well as a moral obligation that we are required to fulfill.

Related Characters: Richard Rothstein (speaker)
Page Number: xi
Explanation and Analysis:

Half a century ago, the truth of de jure segregation was well known, but since then we have suppressed our historical memory and soothed ourselves into believing that it all happened by accident or by misguided private prejudice. Popularized by Supreme Court majorities from the 1970s to the present, the de facto segregation myth has now been adopted by conventional opinion, liberal and conservative alike.

Related Characters: Richard Rothstein (speaker), The Supreme Court
Page Number: xii
Explanation and Analysis:
Chapter 2 Quotes

The director of the Federal Housing Administration supported Tenerowicz, stating that the presence of African Americans in the area would threaten property values of nearby residents. Foreman was forced to resign. The Federal Works Agency then proposed a different project for African Americans on a plot that the Detroit Housing Commission recommended, in an industrial area deemed unsuitable for whites. It soon became apparent that this site, too, would provoke protests because it was not far enough away from a white neighborhood. First Lady Eleanor Roosevelt protested to the president. The FWA again reversed course and assigned African Americans to the Sojourner Truth project. Whites in the neighborhood rioted, leading to one hundred arrests (all but three were African Americans) and thirty-eight hospitalizations (all but five were African Americans).

Related Characters: Richard Rothstein (speaker), Franklin Delano Roosevelt
Page Number: 26-7
Explanation and Analysis:

The waffling of San Francisco’s elected leaders and housing administrators about whether to segregate public projects, like similar waffling in Boston and elsewhere, makes sense only if these officials knew that the segregation they imposed was wrong, if not unconstitutional.

Related Characters: Richard Rothstein (speaker)
Page Number: 29
Explanation and Analysis:
Chapter 3 Quotes

In the wake of the 1917 Buchanan decision, the enthusiasm of federal officials for economic zoning that could also accomplish racial segregation grew rapidly.

Related Characters: Richard Rothstein (speaker), The Supreme Court
Page Number: 51
Explanation and Analysis:
Chapter 5 Quotes

The Supreme Court decision in Shelley v. Kraemer, banning court enforcement of restrictive covenants, had been unanimous, 6-0. Three of the nine justices excused themselves from participating because their objectivity might have been challenged—there were racial restrictions covering the homes in which they lived.

Related Characters: Richard Rothstein (speaker), The Supreme Court
Page Number: 91
Explanation and Analysis:
Chapter 7 Quotes

The consequences of racially targeted subprime lending continue to accumulate. As the housing bubble collapsed, African American homeownership rates fell much more than white rates. Families no longer qualify for conventional mortgages if they previously defaulted when they were unable to make exorbitant loan payments; for these families, the contract buying system of the 1960s is now making its return. Some of the same firms that exploited African Americans in the subprime crisis are now reselling foreclosed properties to low- and moderate-income households at high interest rates, with high down payments, with no equity accumulated until the contract period has ended, and with eviction possible after a single missed payment.

Related Characters: Richard Rothstein (speaker)
Related Symbols: Homeownership
Page Number: 113
Explanation and Analysis:
Chapter 8 Quotes

The Milpitas story illustrates the extraordinary creativity that government officials at all levels displayed when they were motivated to prevent the movement of African Americans into white neighborhoods. It wasn’t only the large-scale federal programs of public housing and mortgage finance that created de jure segregation. Hundreds, if not thousands of smaller acts of government contributed. They included petty actions like denial of access to public utilities; determining, once African Americans wanted to build, that their property was, after all, needed for parkland; or discovering that a road leading to African American homes was “private.” They included routing interstate highways to create racial boundaries or to shift the residential placement of African American families. And they included choosing school sites to force families to move to segregated neighborhoods if they wanted education for their children.

Taken in isolation, we can easily dismiss such devices as aberrations. But when we consider them as a whole, we can see that they were part of a national system by which state and local government supplemented federal efforts to maintain the status of African Americans as a lower caste, with housing segregation preserving the badges and incidents of slavery.

Related Characters: Richard Rothstein (speaker), David Bohannon
Page Number: 122
Explanation and Analysis:
Chapter 11 Quotes

As it has turned out, schools are more segregated today than they were forty years ago, but this is mostly because the neighborhoods in which schools are located are so segregated. In 1970, the typical African American student attended a school in which 32 percent of the students were white. By 2010, this exposure had fallen to 29 percent. It is because of neighborhood segregation that African American students are more segregated in schools in states like New York and Illinois than they are anywhere else. Throughout the country, not just in the South, busing of school-children was almost the only tool available to create integrated schools—because few children lived near enough to opposite-race peers for any other approach to be feasible. Were housing segregation not pervasive, school desegregation would have been more successful.

Yet unlike the progress we anticipated from other civil rights laws, we shouldn’t have expected much to happen from a Fair Housing Act that allowed African Americans now to resettle in a white suburb. Moving from an urban apartment to a suburban home is incomparably more difficult than registering to vote, applying for a job, changing seats on a bus, sitting down in a restaurant, or even attending a neighborhood school.

Related Characters: Richard Rothstein (speaker)
Related Symbols: Homeownership
Page Number: 179
Explanation and Analysis:

Actions of government in housing cannot be neutral about segregation. They will either exacerbate or reverse it. Without taking care to do otherwise, exacerbation is more likely.

Related Characters: Richard Rothstein (speaker)
Page Number: 190
Explanation and Analysis:
Chapter 12 Quotes

I hesitate to offer suggestions about desegregation policies and remedies because, imprecise and incomplete though they may be, remedies are inconceivable as long as citizens, whatever their political views, continue to accept the myth of de facto segregation. If segregation was created by accident or by undefined private prejudices, it is too easy to believe that it can only be reversed by accident or, in some mysterious way, by changes in people’s hearts. But if we—the public and policy makers—acknowledge that the federal, state, and local governments segregated our metropolitan areas, we may open our minds to considering how those same federal, state, and local governments might adopt equally aggressive policies to desegregate.

Related Characters: Richard Rothstein (speaker)
Page Number: 198
Explanation and Analysis:

“In the North, too, African Americans faced segregation and discrimination. Even where there were no explicit laws, de facto segregation, or segregation by unwritten custom or tradition, was a fact of life. African Americans in the North were denied housing in many neighborhoods.”

[…]

With very rare exceptions, textbook after textbook adopts the same mythology. If middle and high school students are being taught a false history, is it any wonder that they come to believe that African Americans are segregated only because they don’t want to marry or because they prefer to live only among themselves? Is it any wonder that they grow up inclined to think that programs to ameliorate ghetto conditions are simply undeserved handouts?

Related Characters: Richard Rothstein (speaker)
Page Number: 200
Explanation and Analysis: