Occupying the Constitutional Right to Housing

JurisdictionUnited States,Federal
CitationVol. 94
Publication year2021

94 Nebraska L. Rev. 245. Occupying the Constitutional Right to Housing

Occupying the Constitutional Right to Housing

Lisa T. Alexander


I. Introduction .......................................... 246

II. The Right to Housing and American Constitutional Norms ................................................ 251

A. The Right to Housing ............................. 251

B. American Housing Rights and Constitutional Norms ............................................ 257

C. Popular Constitutionalism, Social Movements, and Private Law ....................................... 263

D. Local Property Reform as Popular Constitutionalism ................................. 265

III. Occupying the American Right to Housing ............. 268

A. Eminent Domain for Squatters' Control of Land. . . . 268

B. Eminent Domain for Local Principal Reduction . . . . 278

C. Zoning Micro-Homes for the Homeless ............. 284

IV. Law and Social Movements in the Internet Age ........ 291

A. Trans-Local Networks ............................. 291

B. Legal Mobilization Online ......................... 294

C. Legal Framing Through Private and Local Law . . . . 297

V. Conclusion ............................................ 300

The statist impasse in constitutional creation must soon come to an end. When the end comes, it is unlikely to arrive via the Justices . . . . It will unlikely come in some unruly moment-some undisciplined jurisgenerative impulse, some movement prepared to hold a vision in the face of indifference or opposition of the state. Perhaps such a resistance-redemptive or insular-will reach not only those of us prepared to see law grow, but the courts as well.

Robert M. Cover, Foreward: Nomos and Narrative (fn1)

Fight, fight, fight, fight-housing is a human right!

Chant of Housing Rights Activists(fn2)


Housing rights protestors in San Francisco blocked a Google employee bus transporting employees to the company's headquarters in suburban Mountain View.(fn3) The protestors opposed Google's use of over 200 public San Francisco bus stops for its private employee shuttle buses without paying fines for its illegal use of public infrastruc-ture.(fn4) The protestors demanded that the city fine Google $1 billion dollars,(fn5) and dedicate the proceeds to affordable housing initiatives, eviction defenses,(fn6) and measures to prevent the conversion of affordable rental units to market-rate condos.(fn7) Similar protests also took place in other cities.(fn8) The protestors' main grievance was the increasingly inequitable distributions of local housing and property entitlements in San Francisco and Seattle spurred, in part, by technology companies' growth in the region.(fn9)

The San Francisco protestors convinced the city to levy fines against the technology companies,(fn10) and to enact an ordinance that would mitigate the negative effects of the Ellis Act, a state law that allows a landlord to evict all tenants in a rental building, without cause, if the landlord intends to leave the rental market.(fn11) Activists alleged that Ellis Act evictions were increasing and that landlords were abusing the Ellis Act to illegally evict rent-controlled tenants in favor of market-rate owners.(fn12) The new ordinance required landlords evicting tenants under the Ellis Act to pay relocation payments to evicted tenants representing two years' worth of the difference between the rate-controlled rent and market-rate rent.(fn13)

Landlords and conservative legal groups challenged the constitutionality of the ordinance in federal court, and the court struck down the ordinance.(fn14) The city attorney is appealing the decision to the Ninth Circuit.(fn15) Following the federal court's decision, the city supervisor amended the ordinance to comply with the federal court ruling, and the pro-landlord plaintiffs stated they are prepared to litigate the issue all the way to the Supreme Court.(fn16) Yet, housing rights activists continue to use property law disobedience(fn17) to press for a more equitable distribution housing entitlements in the region.(fn18) This saga is representative of the continuous legal, political, social, and cultural battles between U.S. housing rights movements and private property advocates who seek to thwart these movements' efforts.

This Article's central thesis is that the conflict and contestation between these groups helps forge new understandings of how local housing and property entitlements can be equitably allocated, consistent with the human right to housing and U.S. constitutional norms. While there is no formal federal, state, or constitutional right to housing in America, these movements' illegal occupations and local housing reforms concretize the human right to housing in local American laws, associate the human right to housing with well-accepted constitutional norms, and establish the contours of the human right to housing in the American legal consciousness.(fn19) These movements construct the human right to housing in American law by establishing through private and local laws a right to remain, a right to adequate and sustainable shelter, a right to housing in a location that preserves cultural heritage, a right to a self-determined community, and a right to equal housing opportunities for non-property owners, among other rights. By challenging local property rights, these movements also demonstrate how non-property owners, who lack adequate housing, also lack equal dignity, equal opportunity, equal citizenship, privacy, personal autonomy, and self-determination-all norms explicit in the U.S. constitutional order. Lastly, the backlash these movements face also reveals the limits of what tenants' and homeless' rights in an American society committed to strong private property protections will tolerate. When these movements reformulate local property and housing entitlements in a manner that enhances equity and vindicates well-accepted constitutional norms, they give legal content to a future American constitutional right to housing.

This Article relies on document analysis and interviews with key members of umbrella housing rights movements in the U.S.-such as the Occupy Our Homes movements,(fn20) the Take Back the Land movements (TBTL),(fn21) and the Home Defenders' League (HDL)(fn22)-to assess how these movements realize an American right to housing, even in the absence of a formal legal right. These umbrella movements are part of informal trans-local networks(fn23) of housing rights activists, connected nationally and globally through the Internet and social me-dia.(fn24) The author chose these movements because they all used property law disobedience during and after the U.S. housing crisis, participated in Occupy Wall Street, and used the Internet and social media to assert rights that do not exist as a formal legal matter under U.S. law.

These movements apply old legal and constitutional concepts in new ways to assert new housing rights. The Occupy Our Homes and TBTL movements encourage municipalities to use eminent domain to give illegal occupiers title to homes they currently occupy and to transfer ownership of the land under the homes to community land trusts (CLTs)(fn25) owned by the occupiers.(fn26) HDL encourages munici- palities to use eminent domain to refinance the loans of underwater homeowners facing foreclosure.(fn27) Other related homeless rights movements create micro-homes villages for the homeless, and reform local zoning laws to accommodate the new uses of the villages.(fn28) It is unclear if these social movements' legal gains will persist as the U.S. housing market gradually improves,(fn29) and as strong private property rights advocates enact state laws to preempt these movements' local successes.(fn30) Yet, these social movements have made headway in the longer-term war to shift Americans' values regarding how local housing and property rights should be allocated to advance the human right to housing and constitutional norms.(fn31) As criminal justice, environmental, and pro-immigration movements emerge, this Article demonstrates new ways social movements can advance social and economic rights in the U.S.

Section II.A of this Article summarizes the housing rights and entitlements protected by the human right to housing. Section II.B analyzes the landscape of American housing rights and proves that, although the U.S. does not recognize the human right to housing as a formal legal obligation, the human right to housing is consistent with explicit and implicit American constitutional norms. Section II.C as-serts that social movements can create constitutional meanings through private ordering, as well as through constitutional adjudication and federal and state legislation. Finally, section II.D argues these housing rights movements' private ordering and local property law reform efforts constitute a form of popular constitutionalism, whereby the people create constitutional meanings before those interpretations are validated by courts or legislatures.(fn32) In Part III, this Article analyzes qualitative data and case studies to demonstrate how these movements manifest the human right to housing and advance American constitutional norms. Part IV argues that the Internet and social media help these movements advance Americans' cultural acceptance of the human right to housing and avoid the...

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