Don’t read the comments.
Or, sometimes, the emails.
Writing about housing in media outlets can lead to pushback, especially when referring to housing as a human right.
“Housing is a human right? How?” a reader named “Stabilizer” asked in response to one of my columns. “Housing is a human NEED. Also food, sex, and vacations on a nice tropical beach.”
A local lawyer emailed me directly, in part to criticize our law school clinic’s work representing low-income tenants facing eviction. But he was particularly upset with my rights reference. “I am an alum of the school where you teach, so I was appalled to read you refer to housing as a human right,” he wrote. “As you well know, not only is housing not a human right, it never can be one.”
Of course, I do not “well know” that. But the lawyer and other commenters have a point. There is not yet a right to housing explicitly included in our U.S. Bill of Rights, nor has the U.S. Supreme Court yet ruled that it is implied in the Constitution. “We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality,” Justice Byron White wrote in the 1972 case of Lindsey v. Normet.
Yet when our client JaNay is struggling to get her landlord to address widespread mold and a roach infestation, when Curtis is sleeping in his 2012 Chevy after being evicted, and Tanya and her kids can’t even get on the long-closed local subsidized housing waiting list, there is a strong argument that these are all human rights violations. Six strong arguments, in fact:
1. If we want to protect other human rights, we need to ensure the human right to housing.
The Lindsey v. Normet decision is an example of how U.S. judges have usually interpreted our Bill of Rights as protecting only civil and political rights, sometimes called “negative rights.” Those are the rights that prevent government from taking some forms of action: interfering with free speech, arresting and incarcerating without cause, disrupting the privacy of our home and person, etc. “Don’t Tread on Me” flags and bumper stickers champion these negative rights.
At first glance, the right to housing is a pure “positive” right, requiring government action rather than restraint. But in reality it fits neatly within the United States’s cultural and historic support for civil and political rights.
We see that quite starkly with the current wave of criminalizing homelessness, where the simple act of existing without a home can and does lead to arrest, seizure of personal belongings, incarceration, and even death. For the unhoused, our treasured Bill of Rights is off limits.
As anyone who has experienced housing insecurity can attest, people without secure homes have neither the time nor the energy to fully participate in political life and to make their voices heard. They certainly struggle to protect any semblance of constitutionally protected privacy.
The legal term for this human rights phenomenon is interdependence. The so-called negative rights to free speech, political expression, and to be free from unreasonable government intrusion can be fully protected only when rights-holders are safely housed. The interdependence of civil and political rights and positive rights, also known as economic and social rights, is a defining feature of the Universal Declaration of Human Rights, and is a well-settled tenet of international law.
2. The U.S. has a long tradition of recognizing housing as a human right.
The end of World War II was nearing, and it was clear the world would be reshaped. So Franklin D. Roosevelt took the opportunity in his 1944 State of the Union address to articulate a vision of what the U.S. and the world should look like in the generations to come. He outlined a “Second Bill of Rights,” which featured a right to a decent home.
Soon after, the United Nations Commission on Human Rights, chaired by Eleanor Roosevelt, drafted the Universal Declaration of Human Rights (UDHR), modeled in many respects on President Roosevelt’s blueprint. The UDHR squarely rejects the idea that housing is merely a commodity, stating in Article 25: “everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing . . .”
Recognizing the deeply American roots of this pledge, in 1948 the U.S. signed on to the UDHR. The very next year, the U.S. Congress passed and President Harry S. Truman signed the 1949 Housing Act that explicitly commits to “the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family.”
3. Almost the entire world considers housing to be a human right.
Virtually every nation in the world, including all but one in the Americas and Europe, has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 11 of the ICESCR states, “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing” (emphasis added). This commitment is legally binding on these nations. Many have followed up by putting the right to housing in their constitutions and signing on to other treaties that recognize the right to housing.
Unfortunately, the U.S. is one of a handful of outliers that has not ratified ICESCR yet. But we have officially supported housing as a human right in other settings. In his excellent articles and statements reviewing the state of housing as a human right in the U.S., Eric Tars, the legal director of the National Homelessness Law Center, points out that, even without signing on to the ICESCR, the U.S. has several times supported international human rights recommendations and reports that endorsed a right to housing.
There is good reason for optimism that one day we will follow up these pledges by fully ratifying ICESCR, because . . .
4. Most of the U.S. public considers housing to be a human right.
Public opinion surveys show a great deal of concern about housing, along with a real commitment to remedying the problem. Multiple polls show that more than three quarters of Americans surveyed consider adequate housing to be a human right. Those Americans are not content for that right to be an abstraction: most of the people expressing support of housing as a human right also support expanded government programs to make that right a reality.
These opinions matter, because laws, including legislation, constitutions, and treaties, come into existence because of popular support. We already see evidence of U.S. public officials following the lead of the people. Political figures up to and including a U.S. President are on record saying housing is a right, not a privilege. Multiple proposed laws in Congress include names like the “Housing Is a Human Right Act.”
5. All major faith and moral traditions consider housing to be a human right.
The obligation to ensure all of our sisters and brothers are safely housed is at the core of every faith and moral tradition.
Consider the Torah, where Abraham’s radical act of hospitality to three traveling strangers in Genesis 18:1-15 provided the model for the commandment to welcome the stranger that is repeated a whopping 36 times in the Torah. Or the New Testament, where Jesus, born homeless and spending most of the Gospels in that state, made it clear in Matthew 25:38 that he embodied all others who are left without a roof over their head: “I was a stranger, and you invited me in.” And the Quran: “Hast thou seen the one who denied religion? That is the one who drives away the orphan, and does not urge feeding the indigent.”
[RELATED ARTICLE: The Case for a Right to Housing]
More modern religious calls translate these mandates beyond individual charity into collective action for housing rights, both at the national level and in communities like my own. Those calls for policy changes land with real authenticity, because religious communities walk the walk by directly providing housing. Again, in my own community of Indianapolis alone, the Episcopal diocese, the Roman Catholic diocese, and evangelical churches all operate their own homeless shelters and housing programs. So does Family Promise, an organization that relies deeply on an interfaith network of Jewish, Christian, Muslim, and Hindu congregations and organizations.
Why does this matter? Although attendance at religious services has declined in the U.S., a strong majority of Americans identify with a religion and say religion is important to them. Religious leaders and themes still play key roles in our political elections and debates, especially on issues of poverty, and have a long history of being at the core of U.S. human rights movements.
6. U.S. law changes.
As noted above, the U.S. Supreme Court has shut the door on recognizing housing as a right under our Constitution. But it is important to remember that legally closed doors have been kicked open in the past, and will again in the future. The Supreme Court has reversed itself well over 100 times.
That can happen with housing, too. “We should not despair of reinterpreting the federal constitution,” my wonderful colleague and lifelong housing advocate law professor Florence Roisman has written. Roisman echoes other legal scholars’ views that U.S. courts’ interpretation of constitutional rights has been too narrow, directly challenging the permanence of judicial rulings that housing is not a fundamental right. “These ideas are not more fixed than were the ‘separate but equal’ and ‘state action’ doctrines that had to be abandoned with slavery,” she writes.
Beyond these legal arguments to expand the interpretation of U.S. constitutional rights, there continues to be advocacy for the U.S. to finally join the rest of the world by ratifying the housing-guaranteeing ICESCR treaty.
So, is there value in invoking human rights when referring to our housing crisis? Not everyone says yes. Writing in mid-2023, liberal New York Times columnist Nicholas Kristof said, “Slogans can’t replace evidence-based policymaking that understands trade-offs and embraces nuance. It’s easy to say housing is a human right, but that doesn’t get anyone into a home.”
I’m not so sure.
My belief in the value of calling housing a human right comes in large part from having had the privilege of teaching and writing about social movements. The concept of the Overton Window, in which advocates reframe public and political dialogue by asserting rights and policies that are not yet black-letter law, has an impressive track record.
Well before it was law, abolitionists insisted that enslaved people deserved freedom. That turned out pretty well. So did suffragists saying that women were entitled to the vote long before the 19th Amendment was passed, and workers demanding yet-unwritten rights in the workplace.
Speaking a right into existence is a real thing. There is every reason to believe that an established, enforceable human right to housing is traveling this same path.
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2 thoughts on “Six Reasons Why Housing Is a Human Right”
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I value your voice in this debate. There are basic rights not stated in the Constitution, including the Bill of Rights. Yet, most people assume the rights of “life, liberty, and the pursuit of happiness.,” contained in the Declaration of Independence. We assume basic rights as so evident as to be implicitly assumed within the law. Of course, the struggle for recognition of some rights has been harder than others.
You are right to tie explicit rights, such as the right to unreasonable search and seizure, to housing. Without a home, there is no boundary to protect a person.
Thank you for this thoughtful and provocative article. I agree on the value of invoking human rights language and principles in the housing debate. Indeed, a right to housing is compatible with well-accepted U.S. constitutional norms and human rights values – notably, equal dignity, equal opportunity, self-determination, privacy, and personal autonomy.
However, the right to housing debate features dual and dueling visions and narratives on the definition, practicality, cost, and enforceability of such a right. In addition to speech and writing that affirm the human right to housing, meaningful progress toward an actionable right to housing in the U.S. seems to depend on housing advocacy that can compellingly counter the dominant perceptions and critiques that U.S. housing markets are too complicated to implement a right to housing; implementation would be too costly and with benefits too uncertain; and state and local governments are better positioned to address the issues of homelessness, housing, and development.