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Right to the City

You may not have a moral right to live in an expensive city—but does the government have a moral right to exclude you?
Michael Lewyn | @mlewyn | January 25, 2016, 6am PST
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Bob Duran

When planners and pundits complain about the high social costs of regulations restricting housing supply, a common response is: "Even if regulation does make [city X] more expensive, no one has a right to live there. Why can’t they all live in Detroit or rural South Dakota or some other cheap place?"

If by "right" one means "legal right," this is correct. Although the Supreme Court has held that there is a constitutional right to move to a new state or city, the federal courts have not interpreted this doctrine as a restriction on land use regulation. And because many judges bought their houses or condos decades ago when housing was much less expensive, they are unlikely to overturn rules that raise housing costs.

But if one means "moral right," then the question should be phrased differently. Because people who make the "no one has a right to live…" argument usually do so in defense of government regulation, the real question is: do the current residents of a city have the moral right to use the coercive power of government regulation to exclude supply, raise rents, and thus exclude a) new residents and b) residents who haven't already bought a house and are forced out by rising rents and prices (including most children of existing residents)? 

Two leading 20th century political philosophers, libertarian Robert Nozick and progressive John Rawls, have written books that might be relevant to this discussion. In Anarchy, State and Utopia, Nozick wrote that individuals have a pre-political right to life, liberty, and property. According to this view, tax regulations are a kind of slavery: they take the fruits of one's labor without compensation. Accordingly, government may protect its citizens from other takings such as force, fraud, or theft, but nothing else.  

Under Nozick's theory, an owner of land would have the right to build anything he wants on such land.* Thus, land use regulations designed to limit new housing violate natural rights—not the right of the would-be tenant to live in such housing, but the right of the landowner to build it.

In A Theory of JusticeRawls defines justice as "fairness"—what, in his view, would be agreed to by persons who would be acting behind a "veil of ignorance" preventing them from knowing whether they would be rich or poor, wise or ignorant. Applying this principle, he argues that unequal outcomes are just only if they improve the economic well-being of the worst-off group.   

If a city's zoning policies are so restrictive that they drive the poor out of town, this would obviously not improve the economic well-being of the poor. Regulation-minded cities usually try to get around this problem through policies such as inclusionary zoning, building lots of public housing, or rent control.  As a practical matter, these policies are rarely so universal as to have eliminated the harm caused by high rents. But even if they did work, they would not satisfy Rawls's criteria, since the poor are presumably better off with low rents and government subsidies than they would be with high rents and government subsidies.

At best, a combination of government-mandated high rents with government-mandated affordable housing would create a two-and-a-half-class society, comprised of the privileged rich (who can afford the high rents), the privileged poor (who get to stay because of government regulations and/or subsidies), and a few privileged incumbents of all classes (who get to stay because they bought houses when housing was cheap). 

But I do not think Rawls would like this situation either: people acting behind a "veil of ignorance" would not choose this outcome any more than they would choose an outcome that leaves the poor worse off, since they would not know whether they would be part of the privileged rich/poor/incumbents or one of the people forced to leave town by high housing costs.

A third theory of justice is utilitarianism: the greatest good for the greatest number. It could be argued that restrictive zoning defends the interests of the majority, usually a majority of homeowners. But this argument assumes that the majority is harmed by new housing as much as renters or new residents are harmed by being kept out of a city. Since arguments against new housing are often either vague and intangible (such as concerns about "neighborhood character") or are "beggar they neighbor" arguments designed to shift a problem to some other neighborhood (such as concerns about traffic), it seems to me that the interests of an individual incumbent are often pretty weak. By contrast, the differences between living in New York and living in a job-poor rural area or a cheap-but-dangerous city strike me as pretty tangible. 

Of course, the above discussion assumes that the losers from zoning (either landowners who cannot build housing or tenants who cannot rent it) have interests worth considering. There are some situations where government decides to completely ignore the interests of the losers. For example, immigration policy, by limiting a foreigner's ability to move to the United States, privileges "incumbent Americans" over would-be immigrants, even those unlikely to create any harm other than increasing the labor supply.** Assuming for the sake of argument that this is a just policy, is excluding people from a city any different? Perhaps so. Residents of another country do not pay state or federal taxes to support us, and are unlikely to fight in our wars; thus, our moral duties to them might be less than the duties we owe to people who will pay to support us or fight in our wars. 

Thus, I see no strong justification for arguing that government should price out everyone else in other to make current homeowners a little happier. 

*Presumably excepting activities creating the most obviously harmful externalities, which might themselves constitute the illegitimate use of force. Of course, a defender of the status quo might define the concept of "externalities" so broadly as to bar new construction—but from a basically libertarian standpoint such as Nozick's, that would seem to be an absurd result.

**There are certainly other reasons for excluding specific classes of immigrants—I mention this reason, however, because the question of increased labor supply (and the lower wages or higher unemployment rates that might result) is the only reason that applies to all immigrants and thus might justify limiting immigration generally, as opposed to reasons that apply only to immigrants from certain nations, or immigrants least likely to be employable. 

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