Document Type



The Untenable Case for an Unconditional Right to Shelter, 15 HARV. J.L. & PUB. POL'Y 17-34 (1992)


As homelessness has become a prominent domestic issue, numerous advocates have called for constitutional recognition of an individual's unconditional right to enjoy a minimum level of shelter. I argue here that these advocates have failed to deal with the fundamental fact that a society must maintain incentives to work. Both theory and data indicate that an unconditional shelter right, presumably coupled with ironclad rights to enjoy other material benefits, would be counterproductive, even for the poor. My stance is grounded on policy considerations, not on a preference for constitutional minimalism. Indeed, after criticizing the proposed right to shelter, I will identify and praise two momentous, but little-heralded, original endowments that our current constitutional scheme guarantees to each citizen.

My remarks will touch on three overarching issues in the design of a constitution's bill of rights. First, should a bill of rights protect only "negative liberties," that is, rights against government intrusions, or should it also affirm specified "positive liberties," such as entitlements to a minimum level of material welfare? Second, should a constitution's bill of rights be complemented with a "bill of duties" that specifies each citizen's civic responsibilities? Finally, what rights in a federal system are appropriately placed only in a state constitution's bill of rights?

Date of Authorship for this Version