The Constitutional Case Against Exclusionary Zoning

65 Pages Posted: 18 Feb 2024 Last revised: 4 Nov 2024

See all articles by Joshua Braver

Joshua Braver

University of Wisconsin Law School

Ilya Somin

George Mason University - Antonin Scalia Law School

Date Written: February 15, 2024

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.

Keywords: Property rights, zoning, land use, Euclid, eminent domain, public use, constitutional theory, racial discrimination, racism, John Hart Ely, originalism, Takings, representation-reinforcement, Dworkin, moral reading, oligarchy, anti-oligarchy

JEL Classification: K10, K11, H11, H70, O18, J15, J60, J61

Suggested Citation

Braver, Joshua and Somin, Ilya, The Constitutional Case Against Exclusionary Zoning (February 15, 2024). Texas Law Review, Vol. 103, No. 1, pp. 1–64 (2024), George Mason Legal Studies Research Paper No. LS 24-05, Univ. of Wisconsin Legal Studies Research Paper No. 1796, Available at SSRN: https://ssrn.com/abstract=4728312

Joshua Braver

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

HOME PAGE: http://https://law.wisc.edu/profiles/joshua.braver@wisc.edu

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

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