Association for Public Policy Analysis & Management

Place, race, and the law intersect powerfully in the passage of early 20th century zoning ordinances requiring “the use of separate blocks, for residences, places of abode, and places of assembly by white and colored people respectively” State v. Gurry, 121 Md. 534 (1913). Baltimore enacted a comprehensive racial zoning ordinance in 1910 and cities throughout the South quickly followed, adopting similar or identical laws. One consequence of these segregation ordinances was a profound shift in judicial conceptions of property rights and regulations. The first three state courts that considered these racial zoning ordinances invalidated them as trammeling unconstitutionally upon property rights. The next three state courts to consider these laws, however, upheld them as a reasonable response to congested municipal conditions. What can explain why state courts responded so differently to these identical laws? These state court decisions, I find, are differentiated by a shift from a theory of property as a natural right to an analysis of property through a utilitarian calculus. This shift facilitated important equitable restrictions on property rights. The utilitarian emphasis on the greatest good for the greatest number, without consideration for who benefits and who sacrifices, however, also enabled, for a time, these municipal segregation ordinances.