New Article on "The Constitutional Case Against Exclusionary Zoning"

Coauthor Josh Braver and I argue exclusionary zoning violates the Takings Clause of the Fifth Amendment.

(Illustration: Sibani Das/iStock)

My new article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver of the University of Wisconsin) is now available for free download on SSRN. It is also under submission to law reviews. The problem it addresses is, in my view, the most important constitutional property rights issue of our time, and one of the most significant constitutional issues of any kind, given the enormous harm zoning restrictions inflict. That's an admission against interest, as I have spent much of my career writing about public use and eminent domain.

Here is the abstract:

We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities—from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

The paper is an example of cross-ideological collaboration. Josh Braver is a progressive and a living constitutionalist. I am a libertarian, generally sympathetic to originalism. We started discussing the issue of zoning after taking opposite sides of a debate over judicial review at the University of Wisconsin, sponsored by the Wisconsin chapters of the American Constitution Society and the Federalist Society. Although we differ on many other issues, we found that we agree on this one!