This week in America the main news is about how the right-wing majority of Supreme Court justices intend to overturn Roe v. Wade and allow states to make abortion completely illegal under all circumstances. The newfangled ‘originalist’ reasoning of Samuel Alito discards 50 years of precedent in Roe—and indeed anything beyond the Tenth Amendment—by attempting to redefine Liberty much more narrowly as it was understood by the slave-owning authors of the initial Constitution. This retrogressive line of reasoning assumes that the era referred to in ‘Make America Great Again’ is not to the 1950s, nor the 1850s, but apparently the 1780s. ‘Originalist’ reasoning therefore also threatens the right to contraception, same-sex marriage, and inter-racial marriage.
Curiously, these supposedly well-read right-wing justices want to discard a series of liberties by disregarding the Ninth and Tenth Amendments—which are in fact ‘original’ to the deal that allowed the Continental Congress to form a United States in 1789. They read, in full:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Constitution of the United States, Amendment 9
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Constitution of the United States, Amendment 10
Right-wingers want to use the original Constitution as a bludgeon to deprive millions of Americans of their rights. Alito argues that if a right is not enumerated in the Constitution explicitly, then it cannot be defended by the courts. And yet, Amendment 9 explicitly states that the people reserve other rights NOT enumerated in the Constitution. From a legally conservative (in contrast to activist right-wing) point of view, personal liberty is the default condition into which the Constitution treads as minimally as possible. Amendment 10 explicitly extends that restriction to States as well: States may pass laws which restrict rights. But beyond US and State law, all rights are reserved to the people as the default condition of American liberty.
Alito’s ‘originalist’ interpretation is flawed because he presumes the opposite of what these two Amendments actually state. He argues that if a right is not explicitly stated in the Constitution, the Supreme Court will not protect it:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.
Samuel Alito, Dobbs v. Jackson Women’s Health Organization draft Opinion, p.5
This is a categorical denial and disparagement of ‘other rights retained by the people,’ in direct violation of the Ninth Amendment. Here, I want to make a distinction between right-wingers and principled conservatives, who value liberties and a government that does not forcibly deprive you of your rights. The current Republican Party and its extremist affiliates are a threat to your liberties. Vote against them. And please try to take back control of the Republican Party and return it to a party that defends personal liberties.
Alito argues “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” (Dobbs v. Jackson, p.6) Alito’s feeble reasoning implies that overturning these decisions will reduce division. Really? Someone with his depth of cynicism and poor reasoning is qualified to sit on the court?
A looming wave of rights-refugees to California
How does the extremist takeover of the Supreme Court affect housing in California? A direct result of inhumane right-wing policies is that we need to make room for refugees. Several months ago I saw an interview with a woman living in Texas who bitterly explained how she could not flee to California because she could not afford the higher rents here.
Despite what we declare in principle, in practice California is denying her human-rights protection through our unethical shortage of housing. With a Supreme Court packed by ill-willed extremists, we cannot rely on the federal government to protect any rights other than those of privileged property-owners. However, SCOTUS is constrained by the Tenth Amendment: States can enumerate and protect more rights, as California is currently doing. But to make this de jure declaration into a de facto practice, Californians must make permanent room for these refugees.
California already needed to radically overhaul its planning laws.
The first major reform we need is to address our failed attempt at participatory planning. Unfortunately, in practice this ended up being ‘white-privilege planning’ that has severely suppressed housing development statewide for fifty years. We need to declare, in state law, that current residents are NOT the only people who have standing in local development decisions. Future residents, and poor people who have been held out or driven out, deserve at least equal weight in each and every development decision.
Next, we need to resettle our own in-state climate refugees. Last October I argued that climate change will reduce the land California has available for permanent settlement, while simultaneously displacing several million Californians from terrain that the State Fire Marshal now recognizes as dangerous. This does not just apply to canyon communities in Los Angeles or exurban neighborhoods near Santa Rosa and Redding. It also applies to the 20% of Berkeley that is built east of the Hayward Fault, on steep hilly terrain with narrow, twisting streets (see below). The USGS also shows areas of high flood risk, and landslide risk. We need to un-settle these areas and try to make better use of them as wilderness zones supporting biodiversity.
Furthermore, we need to resettle people into areas that have employment and urban services that can support them. Generally speaking, this means incorporated cities and the areas within and immediately adjacent to cities that have full infrastructure and services. Unincorporated county land generally lacks the pre-existing services needed to rapidly and permanently accommodate large numbers of refugees. Infill development in existing cities is most difficult because of NIMBY opposition, but reforms need to go far beyond overruling homeowner neighbors.
Beyond supply-side solutions
If housing is a human right, comparable to the right to breathe clean air (Clean Air Act) and the right of dignified equal accessibility (ADA), then we need to re-think, re-legislate, and re-produce housing as an essential resource, not merely as a speculative commodity investment. Singapore has shown that the costs of construction and maintenance can be covered by affordable purchase-prices, which is how they produce 80% of their housing. Singapore faced a similar refugee-crisis in 1965, and their housing-first method of addressing this crisis led to massive economic growth. They built housing at-cost on a massive scale, suppressing speculative profiteering from banks and private investors. From the urban economic-development point of view, profitability and profiteering have almost opposite meanings. Profitability is a means of massive housing production that increases affordability. Profiteering is a parasitic process that results only in the minimal production of luxury units. Profiteering disrupts households, whole communities, and the economic growth they would otherwise contribute to the city. More on this in a future post.
Meanwhile, inhumane legislation and litigation in other parts of the country compounds our housing problem here in California. I cannot overstate how quickly we may need to make room. We may experience influxes of several million people in each of California’s major cities over a year or less. Existing policies cannot even accommodate our own children. These existing policies will be completely inadequate for resettlement from the next major urban fire or cruel right-wing legislation.