The “basic human right” to housing

Reading the stories about what we’ve come to call “Occupy Magnolia Street,” it didn’t take us long to tell the good guys from the bad guys.

The good guys were the two women who moved their belongings into a vacant house in west Oakland without the knowledge or consent of the owner last November and then refused to leave.  So sympathetic were the two occupiers – now calling themselves “Moms 4 Housing” – that they got Governor Gavin Newsom and virtually every “progressive” politician in the East Bay to rush to their side.

The bad guy was the Redondo Beach-based real-estate investment firm that had bought the run-down house with the intent to fix it up and sell it for a profit, and now wanted the occupiers out.  So fearful of public opprobrium was the company that it hired a high-priced San Francisco publicist to mount its defense.  (Alan Dershowitz was tied up on another matter.)

The story played out in the papers as a morality play:  two single moms battling for shelter against a greedy developer trying to “displace” them.  Now, we like a morality play as well as anyone, and, at first, we bought into the narrative.

But then our inner lawyer spoke up.

The two women occupying the West Oakland building were what used to be called “squatters”:  they didn’t have a lease for the property, nor were they paying rent.  And they had lived in the house for only a few months, far less than the five years required under California law to establish a claim for adverse possession.

What was the legal basis, we found ourselves asking, for declaring that the women ought to be permitted to stay where they were?

One of the news stories supplied the answer.  “Housing is a human right,” the East Bay Times quoted one of the occupiers, Dominique Walker, as saying.  “And today, I’m using that right.”

This caused a bit of momentary head-scratching.  “Housing is a human right” – where had we heard that before?

It was, we remembered, in a speech by Alameda’s own Councilman Jim Oddie during the debate over the so-called “just-cause” ordinance.  Housing, Mr. Oddie said that night, “is a basic human right.  Period.  End of sentence.  Stop.”

Ms. Walker’s assertion that housing was a “human right” – assuming it was repeated by her counsel – didn’t convince Alameda Superior Court Judge Patrick R. McKinney, who issued an order holding that the two occupiers had no right to possession and therefore no right to remain in the house.  So the County sheriffs came and evicted them.

Mr. Oddie’s audience was different – and so was the reaction and result.  The tenant activists on whom he is depending to overlook his violation of the City Charter and return him to Council applauded his unequivocal pronouncement.  His three colleagues who also aspire to the “progressive” label then joined him in passing the “just cause” ordinance.

We suspect that this isn’t the last time we’ll be told that housing is a “human right” or, even more emphatically, a “basic human right.”  After all, the words fit well within a 280-character limitation.

But at the Merry-Go-Round, we take “rights” seriously (apologies, Professor Dworkin).  Here’s the reason:  Recognizing something as a “basic human right” carries consequences for the way in which government deals with its citizens.  If a person has a “basic human right” to something, one can argue that the government must provide it if she doesn’t have it, and must not take it away if she does.

Thus, if Ms. Walker had a “basic human right” to remain in the West Oakland house even though she had no lease and wasn’t paying rent, the government – through the courts and the sheriff’s office – should be forbidden from evicting her.  And if an Alameda renter has the “basic human right” to remain in an apartment as long as she continues to pay rent, the government – through the municipal code and the court system – shouldn’t allow the building owner to rent to a new tenant when the current lease is up.

Moreover, treating something as a “basic human right” gives it a higher status than rights that are deemed less fundamental or universal.  As a result, citizens asserting a “basic human right” will prevail over others relying on rights, however legitimate, that do not rise to the same level.

Our examples illustrate the point.

Even a left-wing stalwart like Senator Elizabeth Warren appears willing to acknowledge that property owners have some rights.  (After all, Ms. Warren describes herself as a capitalist.)  But these rights are primarily economic in nature.  As such, they can’t be allowed to undermine the “basic human right” to the housing of one’s choice.

Thus, Ms. Walker’s “basic human right” to remain in the West Oakland house trumps the real-estate investment firm’s economic right to develop its property.  And the Alameda tenant’s “basic human right” to stay in her apartment trumps the landlord’s economic right to select its tenants.  No balancing test is necessary – the party with the “basic human right” always wins.

Given these consequences, we don’t think it’s enough simply to proclaim, “Housing is a basic human right,” and stop there.  If you want to be more than a sloganeer (or an activist or a politician), you’ve got to tell us where this right comes from and what it consists of.  If you can’t, all you’ve done is to add to the rhetorical rubbish heap.

So let’s spend a few minutes on those questions.

Traditionally, the search for “basic human rights” begins with the Bill of Rights to the U.S. Constitution.  But none of those first 10 amendments (or any subsequent ones) recognizes any right to housing.  And while the Declaration of Independence sets forth certain “unalienable rights,” the right to housing is not one of them.  Indeed, as a historical matter, the Framers probably would have elevated the right to own property over the right to occupy it.  Sorry, Ms. Walker and Mr. Oddie:  you can’t count Madison or Hamilton as part of your crew.

But maybe we’re sticking too closely to the text.  Anyone familiar with the background of Roe v. Wade knows that the case established a right to abortion that, like the purported right to housing, is found nowhere in the Constitution.  Instead, the abortion right was derived from the “right to privacy,” which itself is never mentioned in the Constitution but which Justice William O. Douglas managed to discover in a “penumbra” formed by “emanations” from the rights the Constitution does guarantee.  Unfortunately, Justice Douglas is no longer around to tell us where to find the penumbra containing the right to housing.

Still too myopic?  Expand the search to political philosophy.  Is a right to housing one of the “natural rights” identified by John Locke?  Not that we recall (although Locke did posit a “natural right” to own private property.)  Or does it follow from religious doctrine?  Not the one we were taught:  if housing were a “basic human right,” surely there would have been room at the inn for Mary and Joseph.

We’re not being (totally) facetious here.  If a proponent can’t identify a source – any source – for treating housing as a “basic human right,” she’s left with asserting that it should be regarded as such simply because she believes it merits that status.  But, though ipse dixit may be the style favored by certain of our local politicians, to us it doesn’t pass muster as an argument.  Even the right to privacy has some connection, tenuous as it may be, to the Bill of Rights.  Where can one locate the link for the right to housing?

And then there’s the scope problem.

Previously, we cited two examples of people on whose behalf a “basic human right” to housing has been asserted:  those currently without housing, like Ms. Walker, and those already housed, like Mr. Oddie’s tenants.  If such a fundamental right exists, how would it apply in each case?

Recognizing a “basic human right” to housing would require, at a minimum, that the government ensure that every citizen gets a place to live.  But what kind of place?  Recently, Governor Newsom delivered 15 state-owned trailers to Oakland that will house unsheltered residents.  Are trailers good enough, or does the “basic human right” to housing demand more?  Likewise, since December 2017 the City of Oakland has opened five “cabin communities” consisting of so-called “tiny homes” furnished with one or two cots, a blanket, socks, hygiene items, lights, outlets and two storage bins for each occupant.  Are tiny homes good enough, or do the new residents have a “basic human right” to larger and better-furnished abodes?

Moreover, if a citizen has a “basic human right” to something, ordinarily she isn’t obligated, and can’t be forced, to pay for it.  There’s no toll collector stationed outside Alameda High to collect money from the kids exercising the right to a public education guaranteed by the state Constitution.  Does the same rule apply to housing?  As far as we can tell from the news stories, the formerly homeless living in trailers or tiny homes don’t have to pay rent.  But none of the officials behind the programs stated that this benefit came as a matter of right.  So we still need to ask:  Does the “basic human right” encompass not just housing but free housing?

Suppose the answer is no.  Then the question becomes:  If a citizen may be charged for availing herself of the “basic human right” to housing, how is the fee to be determined?  Setting the charge on a per-unit basis wouldn’t seem to work:  If the amount is too high, some families won’t be able to afford it and therefore they won’t be able to exercise their “basic human right.”  Nor would it seem appropriate to set the fee on a percentage-of-income basis:  Not every family can afford to spend the HUD-standard 30% (or whatever percentage is picked) of their income on housing; are these families also to be deprived of their “basic human right”?

And there’s a flipside to the cost issue.  If recognizing a “basic human right” to housing is understood to require the government to provide housing for all of its citizens, how is the public entity supposed to pay for it?  No state or local government is sitting on a pile of cash that could be used for this purpose; that’s why they’re issuing housing bonds.  (And, BTW, Bernie, who buys these bonds?  It’s the “billionaire class” seeking tax-free income.)  Yet even this might not generate enough money to fund housing-for-all.

Nevertheless, if housing truly is a “basic human right,” it can’t be denied on the grounds that it’s too costly to provide every citizen with a place to live.  Rather, state and local governments would have to revise their budgets to prioritize housing over every other function.  Whatever IAFF Local 689 may think, Alamedans don’t have a “basic human right” to a fire prevention bureau staffed by union personnel.  If raising enough money to make sure that no Alamedan goes unhoused makes it necessary to sell a couple of staff cars and get rid of a captain and deputy chief, that’s what the City is going to have to do.

Similar issues arise from recognizing housing as a “basic human right” for those who already are housed.  The “just cause” ordinance so proudly approved by our Council restricted the grounds on which a tenant could lose her place to live – but it did not eliminate them.  Yet if housing is truly a “basic human right,” why isn’t it absolute?  Sure, a tenant may forfeit her right to remain in her apartment if she commits a crime.  But what about so-called “no fault” evictions, such as when the property owner ends one person’s tenancy so that she can rent the apartment to a close relative?  In such a case, the existing tenant has done nothing wrong.  By permitting the landlord to evict her anyway, isn’t the ordinance countenancing the destruction of a “basic human right”?

Likewise, our Council (and now the state legislature) has enacted laws limiting the percentage by which a landlord may raise rent annually.  Yet if housing is truly a “basic human right,” why should the landlord be allowed to raise the rent at all?  There may be some families who cannot afford the new rent even if the increase is modest.  Does the “basic human right” to housing mean they should be allowed to remain in the apartment and pay rent at the old rate?  And there may be other families who, as a result of a change in circumstances, no longer are able to pay the original rent even if no increases are permitted or imposed.  Does the “basic human right” to housing mean that these families should be allowed to stay and pay whatever rent they can afford?

It should be apparent by now that we have a problem with the concept of housing as a “basic human right.”  It may sound compelling on a protest sign or in a tweet, but what does it mean for real people living in the real world?  That needs to be fleshed out a lot more before we’d be comfortable signing on.

We also fear that using such dogmatic terms in the “conversation” about housing makes it more difficult to find a solution to the “crisis.”  Proclaiming housing to be a “basic human right” creates a test of virtue:  Those who agree that housing should have that status are enlightened; those who are unwilling to go so far are ignorant – or worse.  But nothing is going to get done if the ideologues view everyone outside their camp as an infidel.  Success, like peace, occurs only when the lion lies down with the lamb.

Far better, we believe, would be an approach that regards housing as a legitimate, even vital, object of governmental concern – but not the only, or even the paramount, one.  In making decisions, a public body like the Alameda City Council ought to balance the interest in providing housing to those who need it and protecting those who already have it with other valid public – and private – interests.  And it ought to do so within a framework that acknowledges the constraints of limited resources and the possibility of unintended consequences.  In short, our Council members ought to act like a policy-making body – not a propaganda machine.