Two law professors, Joshua Braver of Wisconsin and Ilya Somin of George Mason, are coming out with an article suggesting that exclusionary zoning (by which they mean, rules such as apartment bans and minimum lot sizes that are designed to exclude people less affluent than an area’s current residents) violate the Takings Clause of the U.S. Constitution.
Rather than focusing solely on originalist interpretations of the clause and on policy-oriented “living Constitution” theories, the authors rely on both theories. Under a living Constitution view, they argue that zoning unfairly disfavors vulnerable minorities (anyone who cannot afford to live in a place under current zoning), unfairly limit individual autonomy by limiting the right to move to a new neighborhood, and creates an oligarchy of elite homeowners.
From an originalist perspective, the authors argue that the Takings Clause was intended to protect “a right to use [property], not merely a right against physical seizure by the state.” The authors admit that this right is not absolute, but is limited by the police power of the state. However, the authors cite some early treatises suggesting that the police power is limited to truly dangerous activities, as opposed to merely unpopular land uses such as apartments.
