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Right to Housing THE RIGHT TO HOUSING If a person has a low opinion of himselfand is unhappy because he lives in a filthy, dilapidated,rat-infested house, you cannot tell him to apply positive thinking-and "Be Happy!" Happiness will begin to blossom only when he finds a way to get out of his physical trap into improved surroundings. Harold Cruse* I. INTRODUCTION Housing is basic to human survival. When properly constructed and maintained, it provides an essential element for life: shelter from the forces of nature. The 1949 Housing Act' recognized the importance of housing by enunciating the national goal of a "decent home and a suitable living envi- ronment for every American family." The impact of housing quality on so- cietal well being is undeniable. For example, the quality and character of the family living unit significantly affects the nature of organized family life.2 Moreover, poor housing has been shown to cause mental and physical illness and is a contributing factor to the cause of crime.3 The demonstrated importance of housing quality supports the assertion that the right to habitable housing is a personal interest which is "implicit in the concept of ordered liberty"4 and thereby deserving of constitutional pro- tection. Yet, in Lindsey v. Normet5 the Supreme Court held that access to housing of a particular quality is not a fundamental interest which requires application of a strict standard of review under the Equal Protection Clause of the Fourteenth Amendment. Thus, governmental action which curtails a person's ability to obtain habitable housing need only bear a rational rela- tionship to a permissible governmental objective.6 Because the range of per- missible governmental objectives is broad, a rational relationship can usually be established and a challenged governmental action upheld.7 * H. CRUSE, THE CRISIS OF THE NEGRO INTELLECTUAL 551 (1967). 1. 42 U.S.C. § 1441 (1977). 2. [Whether or not any organized family life will be at all possible depends very much on the character of the house or dwelling unit. Children cannot be reared in a satisfactory manner if there is no place for them at home where they can play without constantly irritating the adults or being irritated by them. Overcrowding may keep them out of their homes more than is good for them-in fact so much that family controls become weak. The result is that some of the children become juvenile delinquents. This danger may become even more pronounced if there are insufficient recreational facilities in the neigh- borhood. Children in crowded homes usually have great difficulty in doing their homework; their achievements in school may suffer in consequence. G. MYRDAL, AN AMERICAN DILEMMA 375-6 (1962). 3. Id. at 376. See K. CLARK, DARK GHETTO: DILEMMA OF SOCIAL POWER, 31 (1965) for a collection of sociological data. See also L. FRIEDMAN, GOVERNMENT AND SLUM HOUSING, 3-13 (1968). 4. Roe v. Wade, 410 U.S. 113, 152 (1973). 5. 405 U.S. 56 (1972). 6. The rational relationship test is applicable to both the Due Process Clause, U.S. v. Carolene Products, 304 U.S. 144 (1938), and the Equal Protection Clause, Railway Express Agency v. N.Y., 336 U.S. 106 (1949). 7. See, e.g., Berman v. Parker, 348 U.S. 26 (1954), in which the court noted the expansive nature of one governmental objective, protection of the public welfare: The concept of the public welfare is broad and inclusive. ITIhe values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of 248 THE BLACK LAW JOURNAL Moreover, statutory and common-law measures for achieving habitable housing for all have proven ineffective.8 The premise of this Comment is that every person in the United States should be entitled to habitable9 housing as a matter of constitutional right. Before addressing constitutional issues, it is necessary to examine the need to be fulfilled and to identify difficulties faced by those seeking to obtain an increased standard of housing. The current constitutional status of the right will then be discussed. Several theories which support constitutional status for a right to habitable housing will be advanced. Finally, the necessary scope of the right will be outlined. II. THE NEED FOR A RIGHT To HABITABLE HOUSING Shortage of HabitableHousing There is an urgent need in the United States for a sufficient supply of structurally sound housing which adequately provides for the physical needs of its occupants."0 According to Census Bureau data, physically substan- dard housing units are occupied by over thirty percent of American house- holds with annual incomes under $1000, and five percent of all households.' 1 In addition, the existing supply of physically sound housing is often occupied under overcrowded conditions. 2 Moreover, the census figures do not truly reflect the seriousness of the housing shortage. A team of university researchers 3 suggest utilization of three factors-physical ade- quacy, 14 rent burden' 5 and overcrowdingt 6 -to measure housing quality. the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. 1d. at 33. 8. See text accompanying notes 26-51, infra. 9. For purposes of this Comment, habitable housing is that which meets minimum standards of quality. Factors which affect housing quality are neighborhood characteristics, compatibility of the housing unit with the surrounding neighborhood, existence of recreational facilities, security and safety, functional design and rent burden. See Cooper, Pointing the Way to Housing Quality, 2 FORDHAM URBAN L.J. 1 (1973). 10. See generally REPORT OF THE NATIONAL COMMISSION ON URBAN PROBLEMS, BUILDING THE AMERICAN CITY [hereinafter cited as Douglass Report], H.R. Doc. No. 9134, 91st Cong., 1st Sess. (1969). 11. BUREAU OF THE CENSUS, U.S. CENSUS OF HOUSING: GENERAL HOUSING CHARACTER- ISTICS (1970) [hereinafter cited as HOUSING CENSUS]. Based on a 1976 survey, out of approxi- mately 7,711,000 black housing units, an estimated 618,000 lacked some or all plumbing facilities; 448,000 either had no complete kitchen facilities or shared kitchen facilities with another house- hold; 646,000 either had no complete bathrooms or shared bathroom facilities with another house- hold; 43,000 had no heating equipment; 296,000 units lived in, were valued at less than $7500. See U.S. BUREAU OF CENSUS, DEP'T OF COMMERCE and U.S. OFFICE OF POLICY DEVELOPMENT AND RESEARCH DEP'T OF HOUSING AND URBAN DEVELOPMENT, Annual Housing Survey, Series H- 150-76, 32-39 (1976). 12. Occupied units with more than 1.01 occupants per room are considered overcrowded and with more than 1.51 occupants per room, severely overcrowded. HOUSING CENSUS, supra note 11. 13. The team consisted of researchers from the Massachusetts Institute of Technology and Harvard University. Its findings were published in JOINT CENTER FOR URBAN STUDIES OF THE MASS. INSTITUTE OF TECH. AND HARv. UNIV., AMERICA'S HOUSING NEEDS: 1970 to 1980 (1973) [hereinafter cited as AMERICA'S HOUSING]. 14. Physical adequacy is measured by the soundness of the physical characteristics of the housing unit, the presence of complete indoor plumbing, and adequate heat for the local climate. Id. at 4-3. 15. Rent burden negatively impacts upon housing quality if it consumes an excessive amount THE BLACK LAW JOURNAL Based on these factors, an estimated 13.1 million American families, approx- imately twenty one percent of the total, occupy dwellings which are in some way substandard.' 7 Since housing quality is closely correlated to income, substandard housing is usually occupied by low income persons. 18 The cumulative effect of the exodus of industry to the suburbs' 9 and the use by suburban communities of tactics which prohibit or discourage the 2 ° construction of low income housing within their borders has also contrib-21 uted to the inability of low income persons to obtain habitable housing. As industries move to the suburbs, the loss of city-based jobs causes a loss of tax revenue. This adversely affects a city's ability to provide adequate com- munity services, which in turn may have a detrimental effect on urban neighborhood housing quality.22 Although most American families express the desire to own their own home, even with federal assistance, homeowner- of household income. Rent is considered excessive if it amounts to more than 35% of family in- come for a single person or household with the heads over age 65. For other households, payment of more than 25% of family income for rent is regarded as excessive. Id. at 4-5. 16. Overcrowding becomes a factor only if housing units which are occupied by households with three or more persons have more than 1.5 persons per room. Id. at 4-4. 17. AMERICA'S HOUSING, supra note 13, at 4-7 to 4-9. Although this standard of housing quality is broader than that employed by the Bureau of Census, it fails to consider many factors which affect housing quality, e.g., the condition of the surrounding neighborhood. Id. at 4-2, 5-56 to 5-58. 18. This conclusion is subject to significant reservations. As stated by one commentator: [N]ot all of the poor live in bad housing, and not all bad housing is occupied by poor families. Some low-income people manage to live in adequate housing by skimping on other forms of consumption. Their nutrition, education, and medical care may suf- fer due to the high cost, relative to income, of the dwellings in which they live. Other poor families are able to find decent housing through the assistance of family or friends, private charities, or governmental subsidies, Some older households have paid off the capital cost of their living units, and thus can live in good housing with minimal outlays, while others have savings which can be drawn upon to cover housing costs despite their low current incomes.
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