Hunter v. Erickson/Dissent Black
Mr. Justice BLACK, dissenting.
Section 10, Art. I, of the Constitution provides, among other things, that: 'No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts * * *.' But there is no constitutional provision anywhere which bars any State from repealing any law on any subject at any time it pleases. Although the Court denies the fact, I read its opinion as holding that a city that 'wields state power' is barred from repealing an existing ordinance that forbids discrimination in the sale, lease, or financing of real property 'on the basis of race, color, religion, national origin or ancestry * * *.' The result of what the Court does is precisely as though it had commanded the State by mandamus or injunction to keep on its books and enforce what the Court favors as a fair housing law.
The Court purports to find its power to forbid the city to repeal its laws in the provision of the Fourteenth Amendment forbidding a State to 'deny to any person within its jurisdiction the equal protection of the laws.' For some time I have been filing my protests against the Court's use of the Due Process Clause to strike down state laws that shock the Court's conscience or offend the Court's sense of what it considers to be 'fair' or 'fundamental' or 'arbitrary' or 'contrary to the beliefs of the English-speaking people.' I now protest just as vigorously against use of the Equal Protection Clause to bar States from repealing laws that the Court wants the States to retain. Of course the Court under the ruling of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), has power to invalidate state laws that discriminate on account of race. But it does not have power to put roadblocks to prevent States from repealing these laws. Here, I think the Court needs to control itself, and not, as it is doing, encroach on a State's powers to repeal its old laws when it decides to do so.
Another argument used by the Court supposedly to support its holding is that we have in a number of our cases supported the right to vote without discrimination. And we have. But in no one of them have we held that a State is without power to repeal its own laws when convinced by experience that a law is not serving a useful purpose. Moreover, it is the Court's opinion here that casts aspersions upon the right of citizens to vote. I say that for this reason. Akron's repealing law here held unconstitutional, provides that an ordinance in the fair housing field in Akron 'must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective.' The Court uses this granted right of the people to vote on this important legislation as a key argument for holding that the repealer denies equal protection to Negroes. Just consider that for a moment. In this Government, which we boast is 'of the people, by the people, a d for the people,' conditioning the enactment of a law on a majority vote of the people condemns that law as unconstitutional in the eyes of the Court! There may have been other state laws held unconstitutional in the past on grounds that are equally as fallacious and undemocratic as those the Court relies on today, but if so I do not recall such cases at the moment. It is time, I think, to recall that the Equal Protection Clause does not empower this Court to decide what ordinances or laws a State may repeal. I would not strike down this repealing ordinance.