The ultimate printed model of my article “The Constitutional Case Towards Exclusionary Zoning” (coauthored with Josh Braver) is now available for free download on SSRN. Right here is the summary:
We argue that exclusionary zoning—the imposition of restrictions on the quantity and kinds of housing that property house owners are allowed to construct— is unconstitutional as a result of it violates the Takings Clause of the Fifth Modification. Exclusionary zoning has emerged as a serious political and authorized concern. A broad cross-ideological array of economists and land-use students have concluded that it’s liable for huge housing shortages in lots of elements of the USA, thereby slicing off thousands and thousands of individuals – significantly the poor and minorities—from financial and social alternatives. Within the course of, it additionally stymies financial development and innovation, making the nation as a complete poorer.
Exclusionary zoning is permitted below Euclid v. Ambler Realty, the 1926 Supreme Courtroom determination holding that exclusionary zoning is basically exempt from constitutional problem below the Due Course of Clause of the Fourteenth Modification, and by extension additionally the Takings Clause. Regardless of the wave of educational and public concern concerning the concern, up to now, no trendy in-depth scholarly evaluation has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning must be invalidated below the Takings Clause, extra typically.
We contend Euclid must be reversed or strictly restricted, and that exclusionary zoning restrictions ought to typically be thought-about takings requiring compensation. This conclusion follows from each originalism and a wide range of main residing structure theories. Beneath originalism, the important thing perception is that property rights protected by the Takings Clause embody not solely the precise to exclude, but additionally the precise to make use of property. Exclusionary zoning violates this proper as a result of it severely limits what house owners can construct on their land. Exclusionary zoning can also be unconstitutional from the standpoint of a wide range of progressive residing structure theories of interpretation, together with Ronald Dworkin’s “ethical studying,” representation-reinforcement idea, and the rising “anti-oligarchy” constitutional idea. The article additionally considers completely different methods for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.
Josh and I’ve additionally printed a nonacademic model of our thesis in an article in the Atlantic.
This challenge is an train in cooperation throughout ideological and methodological traces. Josh is a progressive and a residing constitutionalist. I am a libertarian typically sympathetic to originalism. If we are able to nonetheless agree on this essential concern, we hope others can too!
