“The Elusive Quest for a Legal Right to Housing in the U.S.” by Terri Y. Montague

Rally to Defend NYC’s Right to Shelter by Kenneth C. Zirkel (CC BY 4.0).

This essay is part of a virtual conference series “The Roles of Law, Religion and Housing Through the United Nations Sustainable Development Goals (UN SDGs)” sponsored by Canopy Forum and the Center for the Study of Law and Religion at Emory University. This series features scholars, experts, and practitioners who examine global challenges of homelessness, housing policy and housing vulnerability. You can browse all essays and view video presentations from the series here.

The importance of adequate and affordable housing for health and well-being, for poverty-alleviation, and for sustainable cities and communities is well-recognized in international conventions. The Universal Declaration of Human Rights (UDHR), declared that  “everyone shall have the right to own property” and be free from “arbitrary interference” or  “deprivation.” It further calls nation states to protect each person’s “right to a standard of living  adequate for the health and well-being of himself and of his family, including food, clothing,  housing and medical care and necessary social services…” The United Nations’ Global  Sustainable Development Goals (SDG) declared that “ensuring access for all to adequate, safe  and affordable housing…” must be a global priority. The International Covenant on Economic,  Social and Cultural Rights (ICESCR) affirmed each person’s “right to live somewhere in security, peace, and dignity” and defined “adequate housing” as a place to live with “adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location [with proximity to] work and basic facilities – all at a  reasonable cost.” Access to housing is a duly recognized source of economic mobility and  “precondition for access to employment, education, health, and social services.” 

The United Nations, furthermore, approaches housing as integrative and more than a simple matter of  shelter. It stipulates seven criteria of “adequate housing:” legal security of tenure, availability of services and infrastructure, affordability, habitability, accessibility, location, and cultural  adequacy.

Yet, despite international recognition of a human right to housing, the United States has yet to ratify these conventions or formalize a legal right to housing. Meanwhile, new corporate capital sources and approaches have gained dominance in housing markets, and they are making unprecedented demands on communities and housing consumers that expose vulnerabilities in current housing systems. These developments intensify the need to translate the human right to housing into an enforceable legal right to housing. 

Strong new calls for a legal right to housing respond to certain stark housing realities and  inequities. Today more than 1.6 billion people worldwide are inadequately housed, and up to 150 million people are unhoused. One in four people globally live in conditions harmful to their health, safety, and prosperity. And by 2030 an estimated 3 billion people (roughly 40 percent of  the world’s population) are projected to need access to adequate housing. This translates into the  need for roughly 96,000 new affordable and accessible housing units per day.  

In the U.S., housing advocates and policymakers estimate that in 2022 there were 650,000 unsheltered homeless persons and projected a housing shortfall of up to 7 million  housing units, especially for low-wealth households. Still, only one in four eligible households  receive needed federal housing assistance. 

The persistent lack of reasonable-cost and physically adequate housing has, in recent decades, become a pressing issue for many American cities, as elsewhere in the world. Since housing demand outpaces supply, rents have risen, home values escalated, wage growth and  incomes stagnated, and the reach and competence of federal housing laws and subsidies has  diminished. Rising housing cost burdens, environmental degradation, and displacement exacerbate the housing supply shortage, especially for low-income households and communities.  

Meanwhile, housing discrimination, unequal housing conditions and amenities, and bias in the  allocation and attainability of housing resources remain pervasive drivers of disparate housing  outcomes well-known to lawmakers and the general public. 

In response, housing advocates have begun to press for recognition of the “right to  housing” as a human right, whose adequate protection reflects a greater commitment to social  and economic justice. They argue that the right to housing is compatible with well-accepted U.S. constitutional norms, and human rights values – notably, equal dignity, equal opportunity, self determination, privacy, personal autonomy. 

The core tenets of the human right to housing are that individuals – by virtue of their humanity, not their social or economic status – are entitled to certain minimum forms of shelter, security of tenure, dignity, connection to communities, and opportunities that allow for their  human flourishing. Advocates for unhoused persons, particularly, have deployed the powerful  language and international canons of decency and human dignity to counter the logic and combat  laws that penalize the public presence or behaviors incident to homelessness, to (re)interpret  housing rights, and to broaden advocacy venues that could influence the U.S. to fulfill – and  expand – its housing commitments. 

The UDHR called for the protection of the “right to a standard of living adequate for the  health and well-being of himself and of his [or her] family, including . . . housing.” Building on  this declaration, the U.N. Special Rapporteur on Housing has called all participating countries to “take appropriate steps to ensure the realization of the right to housing.” While countries are not  obligated to provide housing for their entire populations, they must “progressively realize” the  right to housing by adopting legislative, administrative, judicial, budgetary, and other measures  to advance the right to housing for all. 

In the U.S., the debate over the right to housing features dual and dueling visions and  narratives. Proponents of the legal right to housing emphasize the social and economic justice of  a home guarantee coupled with practical, cost-benefit reasons for relieving those living  unsheltered or without adequate housing conditions. These arguments stress the direct and  indirect costs of not fulfilling a right to housing in the U.S. and how homelessness or housing  precarity undermines citizenship in a democratic society where political rights are heavily  dependent on property ownership. Proponents further argue that providing such a right is a more  rational and humane approach to housing unsheltered persons and far more cost-effective than dominant approaches today that depend upon politically fraught annual appropriations for  temporary housing subsidies, and already overburdened local emergency shelters, and health and housing agencies. 

Advocates further emphasize that the federal government recognized the right to housing  more than 80 years ago in President Franklin D. Roosevelt’s (“FDR”) New Deal ‘Second U.S. Bill of Rights’, and subsequent U.S. Housing Act of 1949, which pledged, “the realization as soon as feasible the goal of a decent home and a suitable living environment for every American  family…”

Critics of the legal right to housing counterpose that the U.S. Housing Act of 1949  merely states a national housing goal – not a right to housing. They further argue that the U.S. Constitution protects only the right to private property – not the right to housing. The U.S.  Constitution protects property rights through the Fifth and Fourteenth Amendments Due Process  Clauses and, more directly, through the Fifth Amendment’s Takings Clause. For critics, establishing a right to housing would involve regulations of property that constitute unlawful takings in violation of these Constitutional rights to property.

These critics also argue that the U.S. housing markets are too complicated to implement a right to housing; implementation would be too costly; and the benefits too uncertain to make doing so feasible. They argue that it is far better in our federalist system for state and local governments to address issues of homelessness, housing, and development.  

Still others equate the right to housing with a mandate to provide a home free of charge to all who ask – which is not the case elsewhere in the world and undoubtedly would not be the case in the U.S. Others construe a right to housing as a threat to the capital markets – an anti market, anti-profit motive ploy to distract from the real need to devote more energy and resources toward reversing the historic under-supply and building our way out of present housing  woes. Still others view the housing debate as a proxy for other issues and expectations beyond the ambit of housing law and policy – such as ending intergenerational poverty, and maximizing investor returns and the benefits of private risk for public benefit.  

The quest for a legal right to housing in the U.S. remains elusive for several other reasons: 

1. Both advocates and critics of the right to adequate housing differ on the legal sources, goals, and definition of such a right. For some, no legal right to housing exists unless enshrined  in the U.S. Constitution or enacted by the U.S. Congress. For others, establishing a right to housing merely involves requiring some unit of government to accept the obligation to shelter  that meets certain standards of decency and safety for some or all persons who need it.¹Florence W. Roisman, Establishing a Right to Housing: A General Guide, 25 Clearinghouse Rev. 203, 205 (1991) 
2. Discussions of a legal right to housing revives a longstanding controversy over whether the United States Constitution contains or authorizes entitlements to social and economic rights, including shelter rights. Advocates contend that the Equal Protection Clause can be construed to require the federal government to provide everyone with a minimum of  welfare rights, including housing rights. Some argue that the Thirteenth Amendment can be  construed to require the federal government to provide all individuals with a minimum level of  sustenance and shelter. American constitutional law, however, primarily protects civil and  political rights, even though it has for more than a century guaranteed other social and economic rights, such as a right to education, self-ownership of labor, Social Security and Medicare entitlements to certain eligible persons.
3. U.S. Supreme Court case law has not helped the effort to create a legal right to adequate housing. In its seminal Lindsey v. Normet ruling, the Court recognized “the  importance of decent, safe, and sanitary hosing” but declined to find an explicit constitutional  basis for a legal right to “adequate housing” under the state statute in question. The Court also rejected the notion of a broad constitutional right to housing protected under the Equal Protection Clause that trumps a landlord’s property rights. While some legal advocates argue that this Court  decision only forecloses a right to housing of a “particular quality,” others interpret it as entirely  foreclosing the possibility of judicial recognition of a constitutional right to housing. 
4. The U.S. Congress, too, has not advanced the effort to realize a home guarantee or to  protect broader welfare rights. Some argue that a federal bill of rights that delivers on promises  of unconditional welfare rights invites an overly intrusive state. Others worry that providing a  legal right to housing and other welfare rights to those living in poverty will undermine their  incentives to work. 

There is some hope that Congressional action may be forthcoming. In 2020, then again in 2021, Congressional lawmakers co-sponsored the “Housing as A Human Right Act,” a $300 billion bill to address the root causes of homelessness, meet the needs of community members experiencing harm from homelessness, transition communities towards providing housing for all, and for other purposes. Although the bill failed to win the needed Congressional approval, it served to raise public awareness, to change perceptions, and to grow acceptance toward the feasibility of a legal right to housing in the U.S. This bill and similar proposals have sparked state and local legislative measures that have proven more successful – thanks largely to an  unprecedented movement for housing justice that is galvanizing bipartisan support among  public- and private-sector housing stakeholders. 

These recent gains signal progress. They encourage advocates for the legal right to housing that the time is ripe for communities of neighbors to move beyond vague declarations to responsive discourse and policy actions. And for the U.S. to find its way home by joining the community of nations now moving beyond mere investigations to concretely advance a legally enforceable right to housing. 

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Recommended Citation

Montague, Terri. “The Elusive Quest for a Legal Right to Housing in the U.S.” Canopy Forum, May 9, 2024. https://canopyforum.org/2024/05/09/the-elusive-quest-for-a-legal-right-to-housing-in-the-u-s/.

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