Collective Action and a Right to Housing

 Lately, we have been reading John R. Commons' Institutional Economics (Part I).  In it, Commons lays the foundations for a lot of what he sees as the basis of economic transactions, heavily rooted in human psychology, action, and interaction (or, as we like to say-- human interdependence). It is a dense book as explained briefly in Rodrigo's blog contribution last week. One notable component of the Commonsonian approach to economics is the fundamental importance of collective action, or the role collective action plays in shaping the legal rules and informal institutions of the world around us. It's interesting to think about how collective action in relation to housing rights has or may continue to impact existing property law.

In Dr. Lisa Alexander's 2015 contribution to the Nebraska Law Review titled, Occupying the Constitutional Right toHousing, she walks through the various Occupy and other housing-strike movements of the recent past, detailing how each is a form of property law disobedience designed to put pressure on local govs to (hopefully) increase more equitable housing entitlements for individuals in various capacities. While Alexander's paper focuses firmly on the law and description of movements and subsequent or predicted legal change, it almost reads as an application of A. Allan Schmid's Institutional Change Analysis (which undoubtedly built on the work of Commons' students through the Great Lakes School of IE). 

She writes,

"This Article's central thesis is that the conflict and contestation between these groups helps forge new understandings of how local housing and property entitlements can be equitably allocated, consistent with the human right to housing and U.S. constitutional norms. While there is no formal federal, state, or constitutional right to housing in America, these movements' illegal occupations and local housing reforms concretize the human right to housing in local American laws, associate the human right to housing with well-accepted constitutional norms, and establish the contours of the human right to housing in the American legal consciousness.' These movements construct the human right to housing in American law by establishing through private and local laws a right to remain, a right to adequate and sustainable shelter, a right to housing in a location that preserves cultural heritage, a right to a self-determined community, and a right to equal housing opportunities for non-property owners, among other rights. By challenging local property rights, these movements also demonstrate how non-property owners, who lack adequate housing, also lack equal dignity, equal opportunity, equal citizenship, privacy, personal autonomy, and self-determination-all norms explicit in the U.S. constitutional order. Lastly, the backlash these movements face also reveals the limits of what tenants' and homeless' rights in an American society committed to strong private property protections will tolerate. When these movements reformulate local property and housing entitlements in a manner that enhances equity and vindicates well-accepted constitutional norms, they give legal content to a future American constitutional right to housing." (Alexander, 2015).

Much of her central thesis ties back to existing legal entitlements as detailed in the constitution.  While there are not "rights" to housing per se, there are rights to equal dignity, equal opportunity, equal citizenship, privacy, personal autonomy, and self-determination specified in the constitution. She explains,

"...the right to housing still inspires American activists because it emphasizes that humans cannot achieve full freedom, equality, dignity, self-determination, and community without adequate housing." (Alexander 2015).

I have recently been working on a paper on the right to housing in the U.S., prompted by the recent spike in those seeking rent assistance during the shock of the COVID-19 pandemic. It's interesting to recognize that no country has implemented the full dimension of the right to housing, though many have developed temporary methods of dealing with housing shocks, like the recent uptick in those unable to make rent and mortgage payments. Normally, these programs are the result of some kind of cost-benefit analysis.

"The right to housing does not provide funding, so governments and courts must engage in cost and benefit analyses and creatively identify sources of funds to further the right."

But this cost-benefit analysis is only conducted under the existing status quo of no right. This status quo, however, is heavily influenced by social movements.

"The right to housing is not currently a formal legal or constitutional obligation in America. Thus, in America, federal and state courts and legislators do not play a central role in creating or defining the right to housing. Rather, social movements are the primary institutions that define and give legal meaning to an American constitutional right to housing through private ordering and local law reforms...As Harvard Law Professor Joseph Singer has argued, "Property law is not just a mechanism of coordination; it is a quasi-constitutional framework for social life." The term constitutional, as Singer uses it, refers not only to constitutional law, but also to the fact that "property institutions are fundamental to social life, moral norms, political power and the rule of law." We can only determine which ownership structures and property relations are valid under American law by reference to basic democratic values enshrined in the Constitution."

Therefore, Alexander argues that collective action in the form of various protests, etc, are engaged in a long-term process of bottom-up popular constitutionalism in which they associate their reforms with long-standing constitutional principles. This method advances property law and increases consciousness and acceptance of the right to housing in America, reorienting American constitutional culture. These movements ultimately influence constitutional meanings. She calls this process "Demos-prudence", as coined by law professor Gerald Torres.

It is this process of institutional change, Demos-prudence, that I think is most interesting of the legal literature I've read on the subject of the right to housing thus far. Alexander's paper and writing is not connected to the economics literature at all, but it could easily be restated in Commonsonian terms. Again, collective action is at the heart of all things, making it possible for society to evolve and revolve. 

References:

Alexander, L. T. (2015). Occupying the constitutional right to housing. Nebraska Law Review, 94(2), 245-301. 

Schmid, A. A. (2008). Conflict and cooperation: institutional and behavioral economics. John Wiley & Sons.