today, Atlantic Published my article “The Constitutional Case Against Exclusionary Zoning” (co-authored with Professor Josh Braver of the University of Wisconsin). It is based in part on our longer academic article on the same topic (forthcoming in Texas Law Review).
America is suffering One of the main causes of the severe housing shortage is exclusionary zoning: regulations that limit the number and type of homes property owners can build on their land. Exclusionary zoning slows economic growth, severely limits economic mobility, and places a disproportionate burden on minorities.
There is no simple solution to this problem. But there may be a key tool in the Constitution: the Fifth Amendment’s takings clause. This provision 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 an upcoming article Texas Law Review article, Because exclusionary zoning severely limits the rights of property owners to use their land, we hold that it qualifies as such a taking and is therefore unconstitutional unless the government pays compensation. Consistent enforcement of this interpretation would severely limit exclusive partitioning….
Just as there is substantial cross-ideological consensus on the policy aspects of zoning reform, there is likely to be a similarly broad consensus on the constitutional dimensions of the issue. One of us, Ilya Somin, is a liberal with originalist sympathies. The other was Joshua Braver, a progressive constitutionalist who is still alive. We disagree on a lot of things but agree here…
When the Bill of Rights was enacted in 1791, it was generally understood that private property rights included not only the right to exclude that property but also the right to determine the use of that property. William Blackstone, the great British jurist british law review He had a huge influence on the founding generations. He famously said: “The third absolute right inherent in every Englishman is the right of property: it includes the right of liberty.” useBlackstone’s statement was echoed by many of America’s founding fathers, most notably James Madison. At the time of the founding, as today, housing was one of the most common uses of land…
For those who reject the originalist argument, the leading alternative framework to current constitutionalism espoused by many progressives may be more persuasive. Living constitutionalism is a broad theory of how to interpret the Constitution that allows for change over time. We have argued in detail elsewhere that several versions of this theory support the abolition of exclusionary zoning. Here we focus on representational reinforcement theory….
Exclusionary partitioning is a perfect example [John Hart] Ely worries that “those who are in will clog the pipeline of political change to ensure that they stay in and those that are out are excluded.” In this case, “ins” are the current residents of the community and “out” are Potential resident. To protect their home values and other interests, residents vote for politicians who will work to block construction that attracts new immigrants….
Here, judicial review could give voiceless outsiders a voice and provide them with the opportunity to obtain the housing they need to move into, an idea that Ely partly anticipated when he supported judicial protection of the “right to relocate.” Given that the Takings Clause is a constitutional provision that protects private property from uncompensated government interference, this is the best option. Therefore, it is best suited to address exclusionary zoning issues that restrict the use of a property.
Ely is also concerned that certain groups, especially minorities, will be subject to prejudice and hostility from the majority and will be systematically disadvantaged in political decision-making. Partition’s racist and classist history provides further justification for the use of judicial review to curb the practice, especially since the disproportionate impact on minorities continues to this day….
If all or even most of the exclusive zoning is invalidated under the eminent domain clause, the impact could be significant. If a court finds that a provision constitutes an expropriation, the government must pay compensation. Local governments are unable to pay compensation to thousands of property owners whose rights are restricted by exclusionary zoning. They may be forced to repeal or severely restrict most exclusionary zoning rules…
Historically, successful constitutional reform movements have combined legal action with political action and have not relied on one to the exclusion of the other. This is true for the civil rights movement, the women’s rights movement, same-sex marriage advocates, gun rights advocates, etc. The cross-ideological YIMBY movement should do the same.
I also recently wrote an article on Bryan Caplan’s Bet On It substack about the potentially valuable role of constitutional litigation in breaking up exclusionary zoning.
