Today, the Atlantic published my article on “The Constitutional Case Against Exclusionary Zoning” (coauthored with Prof. Josh Braver of the University of Wisconsin). It is based, in part, on our longer academic article on the same topic (forthcoming in the Texas Law Review).
America is suffering from a severe housing shortage, and one of the main culprits is exclusionary zoning: regulations that restrict the amount and type of housing that property owners are allowed to construct on their land. Exclusionary zoning slows economic growth, severely limits economic mobility, and imposes burdens that disproportionately fall on racial minorities.
No one simple solution to this problem exists. But a crucial tool may lie in the Constitution: the takings clause of the Fifth Amendment. The clause requires that, when the government takes “private property,” it must pay “just compensation” (usually the fair market value of the property rights taken). As we argue in a forthcoming Texas Law Review article, because exclusionary zoning severely restricts property owners’ right to use their land, we believe that it qualifies as such a taking, and is therefore unconstitutional unless the government pays compensation. Consistent enforcement of this interpretation would severely constrain exclusionary zoning….
Just as there is substantial cross-ideological agreement on the policy aspects of zoning reform, there can be similar broad agreement on the constitutional dimension of this issue. One of us, Ilya Somin, is a libertarian sympathetic to originalism. The other, Joshua Braver, is a progressive living constitutionalist. We differ on many things, but agree here….
When the Bill of Rights was enacted, in 1791, the right of private property was generally understood to include a right not just to exclude, but also to determine the use of that property. William Blackstone, the great British jurist whose Commentaries on the Laws of England enormously influenced the founding generation, famously wrote that “the third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions” (emphasis added). Use undoubtedly included building a house on one’s own property. Blackstone’s formulation was echoed by many of the American Founders, including—most notably—James Madison, the principal author of the takings clause. At the time of the founding, like today, housing was one of the most common uses of land….
For those who reject originalist arguments, the main alternative framework of living constitutionalism, championed by many progressives, may be more persuasive. Living constitutionalism is a broad tent of theories about how to interpret the Constitution, which permits change over time. We argue at length elsewhere that multiple versions of the theory support striking down exclusionary zoning. Here we focus on the representation-reinforcement theory….
Exclusionary zoning is a perfect example of [John Hart] Ely’s fear of the “ins choking off the channels of political change to ensure that they will stay in and the outs will stay out.” In this case, the “ins” are a community’s current residents, and the “outs” are potential residents. To protect their home values and other perceived interests, residents vote for politicians who will work to prevent construction that would entice newcomers….
Here, judicial review can give voice to voiceless outsiders by providing them an opportunity to acquire the housing they need to move in, an idea Ely partly anticipated when he endorsed judicial protection for a “right to relocate.” The takings clause is the best option for this, given that it is the constitutional provision that protects private property from uncompensated government interference. And it is thus best fitted to the problem of exclusionary zoning, which limits the use of property.
Ely also worried that certain groups, especially racial minorities, were subject to prejudice and hostility by the majority and would systematically be on the losing end of political decisions. The racist and classist history of zoning provides further justification for using judicial review to curb the practice, especially because the disproportionate impact on racial minorities persists to this day….
If all or even a large proportion of exclusionary zoning gets invalidated under the takings clause, the effect could be very great. If courts hold that a regulation is a taking, the government must pay compensation. Local governments could not afford to pay compensation to the many thousands of property owners whose rights are restricted by exclusionary zoning. They would likely be forced to repeal or severely constrain most exclusionary-zoning rules…..
Historically, successful constitutional-reform movements have combined legal and political action, and have not relied on one to the exclusion of the other. That was true for the civil-rights movement, the women’s-rights movement, advocates of same-sex marriage, gun-rights advocates, and others. The cross-ideological YIMBY movement should do the same.
I also recently wrote about the potentially valuable role of constitutional litigation in breaking down exclusionary zoning in this piece on Bryan Caplan’s Bet On It substack.
