Californians Should Be Skeptical of Creating a ‘Right to Housing’ in the State Constitution

California voters may soon have to decide whether to enshrine a “right to housing” in the state constitution.

Assembly Constitutional Amendment 10 provides, in its entirety:

“The state hereby recognizes the fundamental human right to adequate housing for everyone in California. It is the shared obligation of state and local jurisdictions to respect, protect, and fulfill this right, on a non-discrimina- tory and equitable basis, with a view to progressively achieve the full realization of the right, by all appropriate means, including the adoption and amendment of legislative measures, to the maximum of available resources.”

If you’re wondering what this proposed constitutional right would actually accomplish, you’re not alone. Previous “right to housing” proposals have either failed to pass or been vetoed by Governor Newsom for lack of specificity.

BY JON COUPAL

At its most superficial level, if the law merely states that everyone should have a roof over their head, there’s little debate over that self-evident proposition. But the real question is whether this somehow creates an enforceable obligation for government to provide housing to all who want it. In other words, would this amendment create a “private right of action,” a question

Right to Housing — continued on page 28 which lawyers frequently confront when interpreting statutes or constitutional amendments.

The short analysis of ACA 10 prepared by the Legislative Counsel merely observes that “the California Constitution [already] enumerates various personal rights, including the right to enjoy and defend life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” But is this “right to housing” the same as the historical rights with which we are so familiar?

More fundamentally, what is a “right?”

Americans are most likely to be familiar with the Bill of Rights, comprised of the first ten amendments to the United States Constitution. Even a cursory reading of these amendments reveals that they are specific prohibitions on governmental power. For example, the First Amendment prohibits Congress from making laws establishing religion or abridging freedom of speech. The Second Amendment pro- hibits Congress from abridging the right to bear arms, and the Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant.

Thus, the Bill of Rights reflects the fundamental nature of true rights which are limitations on government.

What is not included in our historical understanding of “rights” are “rights” to goods or services provided by others. For example, progressives like to claim that everyone has a “right” to health care. But this would necessarily entail that some other person either pay for the medical services—through taxes— or be required to provide the service without payment.

Let’s be clear here. By suggesting we should hesitate to declare a “right” to health care or, for that matter, to housing, does not mean that, in a wellordered civil society, we shouldn’t provide an adequate safety net to those less fortunate. California can create the most robust welfare state imaginable— if it hasn’t already—without declaring all the benefit therefrom as “rights.”

The danger in creating a society where everything is a “right” is that it becomes difficult if not impossible to know when to stop.

For guidance, perhaps we should return to First Principles—the rights as understood by the Founders of the Republic. That is, that true “rights,” also known as natural rights, are prohibitions against government interference in our lives so that we may live as freely as possible in our pursuit of happiness.

If rights include those things that can only be paid for by the forced redistribution of wealth by our government, doesn’t that necessarily violate the rights of those whose property is taken?

California needs to tread carefully in declaring rights to public services. Taken to its logical conclusion, we’ll be left with no rights at all.