Brief of Thurgood Marshall et al., U.S. Supreme Court, McGhee v. Sipes, 1947 WL 30427 (1947), excerpt | Samuel Moyn | August 10, 2016


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Brief of Thurgood Marshall et al., U.S. Supreme Court, McGhee v. Sipes, 1947 WL 30427 (1947), excerpt

Supreme Court of the United States

Orsel MCGHEE and Minnie S. McGhee, his wife, Petitioners,


Benjamin J. SIPES, and Anna C. Sipes, James A. Coon and Addie A. Coon, et al., Respondents.


October Term, 1947


1947 WL 30427 (U.S.) (Appellate Brief)

Brief for Petitioners


Thurgood Marshall, Loren Miller, Willis M. Graves, Francis Dent, Counsel for Petitioner.

Petitioners are citizens of the United States and are Negroes (R. 48, 53). They own and occupy as a residence *3 Lot 52 in Seebaldt's Subdivision of the City of Detroit, Michigan, commonly known as 4626 Seebaldt Avenue (R. 7). Respondents are the owners of lots in the same subdivision and an adjoining subdivision (R. 7). At various times during the year 1934 the predecessors in title of the petitioners and respondents had executed and recorded an instrument relating to their respective lots in such subdivisions, providing in its essential parts as follows:

“We, the undersigned, owners of the following described property:

Lot No. 52 Seebaldt's Sub. of Part of Joseph Tireman's Est. 1/4 Sec. 51 & 52 10 000 A T and Fr'l Sec. 3, T. 2S, R 11 E.

for the purpose of defining, recording, and carrying out the general plan of developing the subdivision which has been uniformly recognized and followed, do hereby agree that the following restriction be imposed on our property above described, to remain in force until January 1, 1960-to run with the land, and to be binding on our heirs, executors, and assigns:

“This property shall not be used or occupied by any person or persons except those of the Caucasian race.

“It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction” (R. 42).

Such restriction was sought to be imposed upon 53 lots in the two subdivisions in which respondents reside (R. 34). Petitioners purchased their property from persons who did not sign the restrictive agreement (R. 13).


Question Presented

Does the enforcement by state courts of an agreement restricting the disposition of land by prohibiting its use and occupancy by members of unpopular minority groups, where neither the willing seller nor the willing purchaser was a party to the agreement imposing the restriction, violate the Fourteenth Amendment and treaty obligations under the United Nations Charter?


Errors Relied Upon

The Supreme Court of Michigan erred in holding:

1. That the due process clause of the 14th Amendment afforded petitioners no rights other than notice, a day in court and reasonable opportunity to appear and defend, and was not violated by the issuance of the injunction enforcing the race restrictive agreement (R. 65-66).

2. That court enforcement of the restriction in question does not violate the equal protection clause of the 14th Amendment, because “we have never applied the constitutional prohibition to private relations and private contracts” and that on the contrary to refuse to enforce the agreement would deny equal protection to the plaintiffs below (R. 66).

3. That the human rights provisions of United Nations Charter are “merely indicative of a desirable social trend and an objective devoutly to be desired by all well-thinking peoples.” It is not “a principle of law that a treaty between sovereign nations is applicable to the contractual rights between citizens of the United States when a determination of these rights is sought in State courts” (R. 67).



Judicial Enforcement of This Restrictive Covenant Violates the Treaty Entered Into Between the United States and Members of the United Nations Under Which the Agreement Here Sought to Be Enforced Is Void.

By Articles 55 and 56 of the United Nations Charter, each member nation of that body is pledged to take joint and separate action to promote:

“Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”

While the Charter recognizes the sovereignty of the members, it states at the outset:

“All members, in order to insure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations in accordance with the present Charter.”[FN1]

FN1. United Nations Charter, Article 2, Paragraph 2.

This solemn international compact was described by the Michigan Supreme Court as merely, “indicative of a desirable social trend and an objective devoutly to be desired by all well-thinking people” (R. 67).

In addition to the decisions of this Court defining human rights to include the right of colored persons to own and use property, the provisions of the United Nations Charter have been similarly construed by authorities.[FN3] For example, *85 the American Law Institute interprets the provisions of Article 55 to include the right of every person to adequate housing.[FN4]

FN3. See January, 1946 issue of 243 Annals of the American Academy of Political and Social Science, on “Essential Human Rights,” particularly articles by Edward R. Stettinius, Jr., p. 1, Charles E. Merriam, p. 11.

FN4. American Law Institute, 243 Annals of the American Academy of Political and Social Science. See also in the Annals, C. Wilfred Jenks, “ “The Five Economic and Social Rights,” pp. 43-45.

The United Nations Charter is a treaty, duly executed by the President and ratified by the Senate (51 Stat. 1031). Under the Constitution such a treaty is the “supreme Law of the Land” and specifically, “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”[FN5]

FN5. Article VI, Section 2.

In the face of this provision, the Michigan Supreme Court stated that it is not a principle of law that a treaty between sovereign nations, “is applicable to the contractual rights between citizens when a determination of these rights is sought in State courts” (R. 67).

Historically, however, no doubt has been entertained as to the supremacy of treaties under the Constitution. Thus Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective.

“To counteract it by the supremacy of the state laws would bring on the Union the just charge of national perfidy, and involve us in war.”[FN6]

FN6. 3 Elliots Debates 515.

The treatment of minority citizens within the border of a sovereign state is the proper subject of international negotiations and is a subject directly affecting international relations. The question arose, in view of the Nazi extermination policy, whether, “sovereignty goes so far that a government can destroy with impunity its own citizens and whether such acts of destruction are domestic affairs or matters of international concern.”[FN11] That question was resolved by the human rights provisions of the United Nations Charter, and by the subsequent adoption by the United Nations General Assembly of a resolution affirming the principles that genocide is a crime under International Law whether committed by private individuals, public officials or statesmen.[FN12] This resolution changes fundamentally the responsibility of a sovereign nation toward its citizens.[FN13] While the Nuremberg trials were confined in scope to acts committed after the commencement of war or in preparation for it, the inclusion of persecution of German nationals in crimes against humanity indicates that the field of international affairs has been broadened to include domestic activity of a nation.

FN11. Raphael Lemkin, “Genocide as a Crime under International Law,” Am. J. of Int. Law, Vol. 41, No. 1 (Jan., 1947), p. 145.

FN12. Resolution of General Assembly of United Nations, Dec. 11, 1946.

FN13. Lemkin, op. cit., p. 150.

Official spokesmen for the American State Department have expressed concern over the effect racial discrimination in this country has upon our foreign relations and the then Secretary of State Stettinius pledged our government before the United Nations to fight for human rights at home and abroad.[FN14]

FN14. McDiarmid, “The Charter and the Promotion of Human Rights,” 14 State Department Bulletin 210 (Feb. 10, 1946); and Stettinius' statement, 13 State Department Bulletin, 928 (May, 1945). See also letter of Acting Secretary of State Dean Acheson to the F. E. P. C. published at length in the Final Report of F. E. P. C., reading in part, “the existence of discrimination against minority groups in this country has an adverse effect upon our relations with other countries.”

The interest of the United States in the domestic affairs of the nations with whom we have signed treaties of peace following World War II can be seen from the provisions in the peace treaties with Italy, Bulgaria, Hungary and Rumania, and particularly with settlement of the free territory of Trieste, in all of which we specifically provided for governmental responsibility for a non-discriminatory practice as to race, sex, language, religion, and ethnic origin.[FN15]

FN15. See description of these provisions in, “Making the Peace Treaties, 1941-1947” (Department of State Publications 2774, European Series 24); 16 State Department Bulletin 1077, 1080-82.

The Potsdam Declaration provided for the abolition of all Nazi laws establishing racial or religious discrimination, “whether legal, administrative or otherwise.”

This growth in international law has established that it is now proper for the executive arm of the United States Government to enter into treaties affecting the treatment of citizens of the United States within its own boundaries. There was never any question, however, that at all times the United States could by treaty protect and extend the rights of nationals of other states residing in this country, and as to covenants running against the foreign born of many nations, such power has always existed.…

Within the framework of our federal form of government, there may be fields in which enabling legislation is required to implement the solemn obligations of the human rights sections of the United Nations Charter. But the decisions of this Court leave no doubt that a contract by its own terms violative of the treaty obligations of the United States is void.

Even were it not established that the individual's right to enter into contracts in violation of treaties is restricted, certainly such contracts cannot be enforced by resort to the power of the state's judiciary since the states have divested themselves of all authority in connection with international relations and have agreed that for their mutual protection, this authority must be vested solely in the federal government.

Such a decision was reached by the Court of another member of the United Nations, the Ontario Supreme Court, when it held unenforceable a restriction against ownership of land by, “Jews or persons of objectionable nationality.”[FN19]

FN19. In Re Drummond Wren, 4 D. L. R. 674 (1945).

The attempt by the courts of the various states to aid private individuals in the prosecution of a course of action utterly destructive of the solemn treaty obligations of the United States must be struck down by this Court or America will stand before the world repudiating the human rights provisions of the United Nations Charter and saying of them that they are meaningless platitudes for which we reject responsibility.


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August 10, 2016

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Samuel Moyn

Harvard Law School

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