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Tag: Voting With Your Feet

  • New Article on “The Constitutional Case Against Exclusionary Zoning”

    New Article on “The Constitutional Case Against Exclusionary Zoning”

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    (Illustration: Sibani Das/iStock)

    My new article, “The Constitutional Case Against Exclusionary Zoning” (coauthored with Josh Braver of the University of Wisconsin) is now available for free download on SSRN. It is also under submission to law reviews. The problem it addresses is, in my view, the most important constitutional property rights issue of our time, and one of the most significant constitutional issues of any kind, given the enormous harm zoning restrictions inflict. That’s an admission against interest, as I have spent much of my career writing about public use and eminent domain.

    Here is the 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.

    The paper is an example of cross-ideological collaboration. Josh Braver is a progressive and a living constitutionalist. I am a libertarian, generally sympathetic to originalism. We started discussing the issue of zoning after taking opposite sides of a debate over judicial review at the University of Wisconsin, sponsored by the Wisconsin chapters of the American Constitution Society and the Federalist Society. Although we differ on many other issues, we found that we agree on this one!

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    Ilya Somin

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  • My Forthcoming Article on “Empowering Hispanics to Vote With Their Feet”

    My Forthcoming Article on “Empowering Hispanics to Vote With Their Feet”

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    My forthcoming symposium article, “Empowering Hispanics to Vote With Their Feet” is now available on SSRN. It is part of the University of Houston’s annual Frankel Lecture symposium, which this year focuses on the role of Hispanics in our democratic system.

    My contribution applies my general ideas on democracy and foot voting to the situation of America’s largest minority group. Here is the abstract:

    This symposium contribution outlines the significance of foot voting for America’s Hispanic population and highlights ways in which we can better empower them to “vote with their feet.” People vote with their feet when they make individually decisive choices about the government policies they wish to live under, as opposed to ballot box voting, where each voter usually has an only an infinitesimally small chance of determining electoral outcomes or otherwise affecting policy. There are three major foot voting mechanisms: through international migration, by moving between jurisdictions in a federal system, and by making choices in the private sector.

    Part II summarizes the advantages of foot voting over conventional ballot box voting as a mechanism of political choice. Foot voters have more meaningful opportunities to make decisive choices with a real impact on their lives, and better incentives to become well-informed. Part III outlines ways in which Hispanics often benefit from foot voting opportunities even more than most other groups in American society. This applies to both international migration and domestic foot voting. Part IV describes ways in which we can enhance both international and domestic foot voting opportunities for Hispanics. Much can be accomplished by increasing access to legal migration, legalizing the status of current undocumented migrants within the United States, and breaking down barriers to domestic interjurisdictional foot voting.

    Expanding Hispanic foot voting is not merely a benefit for this group alone. Empowering them to “move to opportunity” also benefits other groups, including native-born Americans of all races. The liberty and prosperity of America’s largest minority group is of obvious significance to the nation as a whole.

    The piece also includes a brief explanation of why I use “Hispanic” instead of the more academically fashionable “Latinx” (a term rejected by most actual members of the group in question).

    The principal Frankel Lecture was that of Prof. Rachel Moran (Texas A&M), entitled “The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics.” There is also a commentary by Prof. Joseph Fishkin (UCLA). I will post links to them when they become available online.

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    Ilya Somin

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  • My Forthcoming Publius Review of Christopher Zurn, “Splitsville, USA: A Democratic Argument for Breaking Up the United States”

    My Forthcoming Publius Review of Christopher Zurn, “Splitsville, USA: A Democratic Argument for Breaking Up the United States”

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    (Routledge)

    My forthcoming review of Christopher Zurn’s book, Splitsville, USA: A Democratic Argument for Breaking Up the United States is now available on SSRN. It will be published in Publius: The Journal of Federalism. Here is the abstract:

    The US political system has been suffering from multiple serious problems, most notably severe polarization and weakening of crucial political norms underpinning democracy. In Splitsville USA, political philosopher Christopher Zurn advocates a radical solution: national divorce. He contends that Americans will be better off if the United States were divided up into two or more new nations. The book is a useful thought experiment and will surely help stimulate debate. But ultimately, Zurn’s proposed remedy is unconvincing. The author overstates the feasibility and effectiveness of peaceful dissolution, while undervaluing those of some potential alternatives, most notably decentralization and limitation of government power. Splitsville also fails to convincingly address a number of potential negative effects of dissolution, particularly the threat to dissenting minorities within the new nations, and the impact on the international system.

    As noted in the review, the fact this book was written by a serious scholar and is getting respectful attention is a notable sign of the times. A decade or two ago, calls for breaking up the United States were far more unthinkable than is the case today. It is also notable that, while arguments for breakup and secession are often associated with the political right, Zurn is a progressive.

    In my own writings on these issues, I have argued that secession should be a more easily available option than is the case in most political systems today, but also that the flaws in American democracy are better addressed by other means, including by limiting and decentralizing government power, and otherwise empowering people to “vote with their feet.”

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    Ilya Somin

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