This year marks the centennial of zoning in the United States, when the Supreme Court upheld comprehensive municipal land-use restrictions over the claims of property owners. The decision, Euclid v. Ambler Realty, was a milestone in the progressives’ campaign to overcome constitutional impediments to their plans for social engineering. In the ensuing century, zoning fundamentally altered the geography of American life, turning what had just become an urban-majority nation into a suburban one. Critics on both the libertarian right and woke left condemn zoning as a back-door version of apartheid, a stealthy way to keep immigrants and blacks out of “desirable” neighborhoods.

　　By 1900, Southern states had enacted segregation laws for “places of public accommodation” (hotels, restaurants, railroads, and the like), and the Court upheld these in 1896’s Plessy v. Ferguson. The residential segregation campaign began later, a response to the “Great Migration” of blacks into border-state cities in the 1910s. This campaign faced more constitutional difficulties due to American doctrines of property rights.

　　Baltimore enacted the first residential segregation law in 1910. Louisville enacted a law that prohibited members of one race from moving into a block in which the other race was a majority. The NAACP cleverly arranged a case in which a white man, Buchanan, sued to overturn the law. Buchanan sold his house on a white-majority block (situated between the only two black-owned houses on the block) to a black man, Warley. When Warley refused to complete the purchase because of the Louisville ordinance, Buchanan sued him. Given his house’s situation between the only two black-owned houses on the block, Buchanan argued, no white man would buy it. In Buchanan v. Warley (1917), the Supreme Court struck down the Louisville law as a violation of individual property rights. Edward Bassett, the “father of zoning,” lamented that cases like this indicated that American law “gave real estate owners almost total control over the use of their property.”

　　To get around this constitutional impediment, segregationists devised the “racially restrictive covenant,” in which a purchase contract forbade selling the property to members of certain races. The title search for a house that I purchased in 2007 turned up a restrictive covenant from the 1925 sale of the property. The purchaser agreed never to sell the parcel “to any one of the Ethiopian or African descent.” He also promised “that no dwelling house shall be erected on the property that costs less than $1500”—a zoning-use restriction avant la lettre. The Supreme Court upheld such covenants in 1926, the same year that it upheld more comprehensive zoning laws.

　　Zoning was a “quintessentially progressive concept,” historian Michael Allen Wolfe observes, exemplifying the movement’s faith in expertise and state power. It fit particularly into the progressives’ belief that the state could improve the genetic stock of the population, based on their belief in racial group hierarchy and eugenics. One can see the first zoning ordinances in the efforts of cities like San Francisco to control Chinese laundries, and in New York City’s tenement-manufacturing laws.

　　The proponents of such laws supposed they would manage unruly new immigrant populations. Progressive economists like Richard Ely characterized these immigrants as “beaten men from beaten races, representing the worst failures in the struggle for existence,” and planners promoted zoning as a “means for preventing race deterioration.” Progressive sociologist Edward A. Ross had coined the term “race suicide.” (Stanford University fired him for his advocacy of Asian immigration exclusion, which gave rise to the movement for tenure to protect “academic freedom.”) Theodore Roosevelt popularized it. He called the limited child exemption in the first income tax “a premium on race suicide.” Eugenicists believed that zoning to promote single-family homes would encourage the fertility of the native-born, and the tax code still provides for the deduction of home mortgage interest payments.

　　“Urban planning” as a profession had grown up in the late nineteenth century, a kind of social science or social engineering that could impose order on America’s burgeoning urban growth. Zoners benefited from the progressive campaign for municipal “home rule.” Whereas earlier suburbs had desired to be annexed to their core cities, by 1900, most used zoning to keep urban populations out. Like many other progressive causes, it drew deeply from German sources, though, as with the judicial philosophy known as legal realism, the two world wars helped to efface these origins. As Frederic Howe observed, “In Germany the city is as sovereign over the property within its limits as it is over the people.” In legal terms, zoning reflected the progressives’ conviction that common law doctrines like nuisance and trespass were outdated, inadequate to deal with modern urban problems. (Though they would disingenuously plead that zoning was just an updating of common law nuisance.)

　　These planners openly admitted that the “outdated” Constitution stood in their way. American judges need to “get over this bogey of the Constitution,” Andrew Wright Crawford argued. Reflecting Woodrow Wilson’s vision of an administrative state that was separate from politics, zoning would be the work of technical experts, insulated from democratic majorities.

　　Zoning represented a step back to collective security from individual opportunity.

　　New York enacted the first comprehensive zoning law in 1916. Luxury hotels and exclusive retailers had displaced residential mansions in the nineteenth century, and they now organized to keep garment manufacturers from doing the same to them. “You are like cattle in a pasture,” one zoning advocate told the retailers, “and the needle trade workers are the flies that follow you from one pasturage to another, nagging you into abandoning one great center after another.” Aware of the vulnerability of their novel plans to constitutional challenge, zoning advocates tried to get as many American cities to adopt zoning as quickly as possible. The US Department of Commerce aided them; its secretary, Herbert Hoover, ardently supported zoning. The Department’s Standard State Zoning Enabling Act sold over 55,000 copies.

　　The village of Euclid, on the outskirts of Cleveland, joined the campaign. The Ambler Realty Company owned lots that were valued at $10,000 per acre for industrial use. (The founder of the company was the chairman of the Board of Trustees of Hillsdale College.) Euclid’s ordinance limited the zone to single-family houses, reducing their value to $2500 per acre. Even zoning advocate Alfred Bettman called the Euclid plan “arbitrary.” Ambler sued to enjoin the ordinance. The federal district judge, Steven Westenhaver, granted the injunction, though declaring that “this case is obviously destined to go higher.” He drew upon precedents that had protected individual rights against the “police power”—the power of state and local governments to legislate for the “safety, health, welfare, and morals” of the people. As if responding to Frederic Howe, Westenhaver observed that Euclid’s restrictions “recognize no distinction between police power and sovereign power.” If zoning were a valid exercise of the police power, then “all private property is now held subject to temporary and passing phases of public opinion, dominant for a day, in legislative or municipal assemblies.”

　　This conservative judge brought to the decision the kind of factual analysis that progressives repeatedly called for, particularly in zoning. Westenhaver saw in the apparently neutral land-use restrictions significant class and ethnocultural bias that later decades would more fully document. “It is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential sector, are so well known as to be within the judicial cognizance.” Westenhaver noted that the Supreme Court had struck down explicit racial segregation in 1917, and recognized that land-use zoning could act as an equivalent. Noting that “the courts never hesitate to look through the false pretenses to the substance,” he concluded that “the plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life.”

　　On appeal, the Supreme Court reversed Westenhaver and upheld the Euclid zoning ordinance. George Sutherland, one of the more conservative justices who came to be called “the Four Horsemen of reaction” during the New Deal, wrote the opinion. He was helped by Euclid’s lawyers, who tried to cast the ordinance in a common law light, akin to the traditional doctrine of nuisance. Sutherland asserted that

　　while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.

　　He appealed to the classical standard, “the maxim sic utere tuo ut alienum non laedas (use your own property in a way that does not interfere with others’) which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew.” He deferred to the findings of “commissions and experts,” who concluded that “very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.” In low-density areas like Euclid, “apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.” The other three conservative Horsemen dissented, but without opinion.

　　Euclid was a transformative decision, fundamentally redefining the American understanding of property rights and enabling the rise of the administrative state. (In its next term, the Court accepted compulsory sterilization of the “unfit,” another part of the progressive campaign for social engineering.) Nineteenth-century Americans had turned away from medieval English common law rules that exalted the “quiet enjoyment” of the land and opened it up to economic development. Enabling property owners to use their property in dynamic and entrepreneurial ways undergirded the unprecedented economic development of the country.

　　Zoning represented a step back to collective security from individual opportunity. New immigrants and black migrants would not have the same opportunities. New Deal programs to promote homeownership reinforced the zoning regime (the “redlining” practices that we hear so much about). The Supreme Court held racially restrictive covenants to be unconstitutional in 1948, but zoning regulations continue to have their effect. In 2021, the city of Berkeley, California, repealed its single-family zoning restriction. As a local activist put it, “We’re known for our progressive history, but we have a couple of skeletons in our closet.”

　　Portions of this essay are adapted from the author’s 2013 book, The American State from the Civil War to the New Deal.