The Volokh Conspiracy

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8th Amendment

Combat Homelessness by Ending Exclusionary Zoning

The Eighth Amendment provides little, if any, protection for the homeless. But courts can help them by striking down exclusionary zoning, which is the major cause of housing shortages that lead to homelessness.


Homeless encampment under an overpass in Oakland, California.
Homeless encampment under an overpass in Oakland, California. (Blackkango |


Today, the Supreme Court heard oral argument in City of Grants Pass v. Johnson, a case which raises the issue of whether a law that criminalizes camping on public property by homeless people who have nowhere else to qualifies as "cruel and unusual punishment" under the Eighth Amendment. I highly doubt the Eighth Amendment can do much to help the homeless. But courts could help them in a different way: by striking down exclusionary zoning as a violation of the Takings Clause of the Fifth Amendment.

Today's oral argument reveal more sympathy for the plaintiffs' argument among the justices than I might have expected. But I highly doubt there are going to be five votes to affirm the Ninth Circuit's ruling in their favor. The fundamental problem with the plaintiffs' position is that the Cruel and Unusual Punishment Clause of the Eighth Amendment only restricts the types of punishments that the government can use, not the range of activities it can criminalize in the first place. Prof. Michael Mannheimer, a prominent academic expert on the Eighth Amendment, articulates this point well in his amicus brief in the case.

At the oral argument, Justice Neil Gorsuch suggested some criminalization of sleeping outside by homeless people might be forbidden by the Due Process Clause of the Fourteenth Amendment, or by the Excessive Fines Clause of the Eighth Amendment. I think he may be right about that, though I don't know enough about the relevant questions to be sure. These issues, however, are not before the Court.

Even if the plaintiffs prevail in this case or win a narrower victory in a future case, along the lines suggested by Gorsuch, letting people sleep in public streets and parks is far from a great solution to the homelessness problem. And it creates serious problems for the surrounding community, potentially rendering some public spaces unusable for their primary purposes.

But there is a much better way for judicial review to help alleviate homelessness: strike down exclusionary zoning laws under the Takings Clause of the Fifth Amendment.

As a recent Pew Charitable Trusts report explains, research shows that housing costs are a major cause of homelessness, accounting for most of the increase in it in recent decades. And the biggest driver of high housing costs is exclusionary zoning: building restrictions that make it difficult or impossible to build new housing in response to demand, especially in many of the most attractive metro areas on the East and West coasts. For example, single-family home zoning (an extremely widespread practice) bars the construction of multifamily housing affordable for working class and lower-middle class people.

The Pacific Legal Foundation amicus brief in the Grant Pass case provides further detail on how exclusionary zoning greatly increases homelessness. PLF attorney Mark Miller (author of the brief) has a helpful summary in a recent Fox News article.

Obviously, some people are homeless primarily because of severe mental illness or physical disabilities. But evidence indicates that a large part of the problem¬†—and the vast bulk of the increase in it in recent decades—is caused by high housing costs driven by exclusionary zoning.

In our forthcoming Texas Law Review article, Josh Braver and I explain why exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" when it takes private property. As we show, this conclusion follows from the standpoint of both originalism and leading variants of living constitutionalism. We also explain how todeal with the badly flawed 1926 ruling in Village of Euclid v. Ambler Realty, upholding exclusionary zoning against a Fourteenth Amendment challenge. In Part IV, we explain how the Supreme Court can sideline Euclid without even having to overrule it.

Courts cannot do much to alleviate homelessness by using the Eighth Amendment. At least when it comes to the Cruel and Unusual Punishment Clause, they probably should not even try. But they can and should help the homeless by striking down exclusionary zoning.

The imperative of curbing exclusionary zoning is the goal of a growing cross-ideological YIMBY coalition, including leading economists and land-use experts across the political spectrum. Our article is a small example of this dynamic at work: I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause.

This issue isn't before the Supreme Court in Grants Pass. But perhaps it will come before the justices again sooner rather than later.  If so, they could give a genuine boost to the struggle against homelessness, while simultaneously also providing much-needed protection for constitutional property rights.