New NYU Brennan Center Article on "Using State Constitutions to Combat Exclusionary Zoning"

Today, the NYU Brennan Center State Court Report published my article “Using State Constitutions to Combat Exclusionary Zoning.” Here is an excerpt:

Exclusionary zoning is probably the biggest cause of the housing crisis besetting many parts of the United States. A broad cross-ideological array of economists and land-use scholars has concluded that such zoning is responsible for massive housing shortages, and that it also cuts off millions of people — particularly the poor and minorities — from economic and social opportunities. But relief is possible — state constitutional law can potentially do much to address this issue in ways that other pathways to reform cannot readily match.

Exclusionary zoning involves restrictions on land use that constrain the amount and type of housing that can be built in particular areas. Most notably, some 70 percent of all residential property in the United States is zoned for single-family residences only. This, combined with other restrictions like minimum lot sizes and parking mandates, makes it difficult or impossible to build new housing in response to demand in many areas, particularly those that are most attractive for people seeking job and educational opportunities.

In a 2024 Texas Law Review article and a shorter version in The Atlantic, Joshua Braver and I explained why most exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires payment of “just compensation” whenever the government takes private property. The basic idea is simple: The property right protected by the Takings Clause includes the right to use property, and the right to use is severely constrained by zoning restrictions that block housing construction….

While we hope federal courts eventually adopt this position, it could take a long time. In a recently posted article, “The State Constitutional Case Against Exclusionary Zoning,” currently under submission to law journals, Braver and I build on our 2024 publications, and explain how great progress can be achieved by using state constitutional law. This can be done both by litigation under existing state constitutional provisions and through potential constitutional amendments.

Braver is a progressive living constitutionalist; I am a libertarian and an originalist. Despite ideological and jurisprudential differences, we are united on this important issue, and we hope others might join us.

The rest of the article outlines our ideas for doctrinal improvements with respect to existing state constitutional provisions, and also for constitutional amendments.

We go into these matters in much greater detail in our academic article, “The State Constitutional Case Against Exclusionary Zoning,” recently posted on SSRN, and currently under submission to law reviews.

The fact that the Brennan Center asked me to write a piece based on the longer article, even before the latter was posted and submitted to journals, is perhaps a sign of the widespread interest in this topic.

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