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How the Philly #HousingNow Encampment Movement Prompts Us to Reimagine a Right to Contract, Part 2


Madison is a JD candidate at University of Pennsylvania Law School.

In yesterday’s post, I recounted the story of the encampments of unhoused people in Philadelphia who occupied public tracts of land throughout the summer and successfully organized to win their demands for permanent housing. In today’s post I explore how the success of those encampments presents a vision of contracting that counters the traditional Lochner-esque “freedom of contract” through the occupation and democratization of the right to contract which, under a commodified housing system, ultimately enlivens the right to housing.

The Traditional Right to Contract

The violence of contract law is especially apparent in the enforcement of housing contracts. Nearly one million families in the U.S. are removed from their houses via eviction under the threat of state violence every year due to the breach of a contract. Roughly four evictions are filed every minute in the United States due to an alleged breach of a contract. Similarly, Americans sleep on the street because of their inability to enter into a contract for housing. On a single night in January 2018, half a million people had no housing at all, with nearly 200,000 completely unsheltered. The coronavirus pandemic has only exasperated the housing crisis, causing millions of Americans to live in fear of losing their home if they are unable to meet a term of a contract that they agreed to before an unexpected, once-in-a-generation, “unprecedented” crisis. More than one in six unemployed tenants has fallen behind in rent payments, and 45 percent of all renters think they will probably be evicted from their homes in the coming months. Under a regime of urban racial capitalism, all of these burdens fall disproportionately on BIPOC. This violence is anti-Black violence.

Under capitalism, access to housing hinges on contract law. As Robert Hale explains in his classic piece “Coercion and Distribution in a Supposedly Non-Coercive State,” the right to contract – like all rights is shaped by property ownership:

“While there is no law against eating in the abstract, there is a law which forbids him to eat any of the food which actually exists in the community – and that law is the law of property. It can be lifted as to any specific food at the discretion of its owner, but if the owners unanimously refuse to lift the prohibition, the non-owner will starve unless he can himself produce food. And there is every likelihood that the owners will be unanimous in refusing, if he has no money.”

The dynamic that Hale explains is felt acutely by unhoused people. While there is no law against smoking cigarettes, unhoused people seeking substance abuse treatment in Philadelphia must choose between smoking cigarettes and getting the treatment they need. While the U.S. Constitution may protect the right to have a romantic partner, having a romantic partner stay over with you in a city-funded shelter after curfew may get you kicked out of housing. While there is no law against urination, there is a law against urinating in public that can be cited as a reason to use state violence to clear out hundreds of people from an encampment. Likewise, the “right” to enter a contract for housing is an empty right for a low-income person or a person facing one of the many forms of systematic discrimination that make owners avoid dealing with people who don’t “fit the neighborhood character”. Landlords and homeowners are likely to be “unanimous in refusing” the sale or rental of housing to someone who has no money.

Hale was writing against the logic of the Lochner era, in which this highly unfree “freedom of contract” was constitutionalized to strike down a series of attempts to rebalance power between workers and capital owners. While Lochner is no longer good law (for now), the political-economic logic of distributing essential goods by “free exchange” continues to animate a vision of distribution via contract, in which “any pre-contracting power differentials, including those power differentials that are created or sustained by law, are rendered invisible.” Capitalist interests in housing – the landlords, the banks, the housing authorities – understand this reality quite well. And, indeed, they have begun to make moves to revitalize Lochnerian Constitutional Law. In Philadelphia, the local landlord lobby filed a federal lawsuit in federal court based in part on a Lochnerian constitutional challenge to the Emergency Housing Protection Act, a local ordinance establishing protections for renters impacted by the coronavirus pandemic.

Traditionally, housing justice advocates have acquiesced to this broad understanding of the right to contract, if not in the landlords’ interpretation thereof. Legal reform efforts seek limits on parties’ ability to contract for rent with rent control, reasons for termination of the lease with “good cause” protections, and reasons for entering a lease or mortgage with discrimination protections. This work is necessary, but it also ratifies the dominant understanding that contract law is a fundamentally unfair arena for people in need of shelter. The idea that the distribution of property fundamentally shapes contracting for housing is internalized, leading advocates to settle for simply limiting the propertied class’s ability to exploit and extort the non-propertied class. It is upon this terrain that the encampment’s organizers called on us to occupy the right to contract as a means to actualize a positive right to housing and to reject the landlord’s domination of contract law.

the encampment’s organizers called on us to occupy the right to contract as a means to actualize a positive right to housing and to reject the landlord’s domination of contract law.

The Occupied Right to Contract

Housing as a human right was an animating principle of the encampment protests – a banner over Camp JTD’s entrance proudly proclaimed as much. In addition to the provision of permanent, quality housing, a robust positive right to housing requires an expansion of the agency of unhoused people to secure and maintain a place to call home. The encampments demonstrate that collective bargaining is not only an effective technique in reaching the outcome of permanent housing, but also an effective strategy in expanding the agency of the unhoused residents of the encampment.

At the core of collective bargaining is the flex of what Hale calls “actual power” that provides an actual,non-legal counterweight to a property owner’s legally created power. Hale describes how the a boss’s “coercive power is weakened by the fact that…his laborers have the power to make matters more or less unpleasant for him through their actual power (neither created nor destroyed by the law) to withhold their services.” Workers channel this actual power through collective bargaining to enter into contracts, re-allocate wages and resources, and to challenge the artificial and legally created but immense power of the property owner.

Increasingly, housing justice advocates are tapping into a similar sort of actual power and corresponding strategy. As Andrew Fahlstrom, a tenant organizer in Minneapolis, recently explained to Matthew Desmond: “City Hall isn’t a place of sun power but moon power…Sometimes [politicians] forget…They think the power comes from them, like they are the sun, sending out the power. But they are like the moon, shining back our power. Our actions remind them that the power comes from the people.” The encampment organizers and residents channeled this “people power” through the occupation of public land. In doing so, they refused to acquiesce to the allocation of rights under the status quo.

Through occupation of public land and vacant properties owned by PHA and the cultivation of corresponding popular support, the encampment organizers mirrored the pressures that families seeking shelter typically face when looking for a home. In the typical search for housing, the party seeking to be housed has limited bargaining power because of the basic, desperate, human need for shelter, whereas the property owner is merely looking for a return on their investment.  This imbalance means that when an individual tenant negotiates a lease alone, the contract is not so much a “meeting of the minds” as it is a set of unilaterally imposed terms. The encampment turns this traditional formula on its head by exerting pressure on the property owner that resembles the pressures traditionally exerted on families seeking housing. In the case of the encampments, the City began its negotiations claiming that it didn’t have the authority to transfer the properties to the encampment but was coerced into admitting that it, in fact, could meet the demand, similar to a family forced to acquiesce to an unaffordable rent. The result is that the individual unhoused members of the encampments gained access to contracts with terms that would have been unreachable if they had bargained for them individually. This exercise of collective action disentangles the right to contract for housing from property ownership or the distribution of resources and instead realigns the right to contract for housing with the cultivation of community power.

The encampment organizers rejected the notion that only the powerful few have the right to contract and instead prompt us to reimagine a world where everyone – especially the most vulnerable of us – can claim and occupy a right to contract.

In doing so, the encampment organizers – even if inadvertently – join a chorus of visionaries provoking the conventional understanding of the right to contract. Feminist law professor Robin West, for instance, has discussed the liberatory potential of the “the civil right to contract.” West has distinguished the “civil right to contract” from the traditional understanding of the right to contract, explaining: “the civil right to contract, unlike the constitutional one, is not, at heart, a right to self-sovereignty. Rather it is a right to participate in markets of various sorts that are themselves conducive to human flourishing.”

As West articulates, a robust right to contract is fundamentally a right to participate. Accordingly, the occupation of the right to contract by a collective of unhoused people in the context of housing makes the housing contract a site of democratic engagement. The redistribution of power inherent to this sort of participatory politics not only disentangles contracting rights from the allocation of property rights but also challenges the traditional power structures that undergird commodified housing. Rather than attempting to limit exploitation, this strategy of organizing and occupation builds the power of the unhoused to meaningfully participate in shaping the terms that will govern their home and shelter. In doing so, the encampments affirm the agency of the unhoused residents as a community and channels Patricia Williams and her poetic reclamation of the formal right to contract: “I may be recognized as a whole, by which I may feed and clothe and shelter myself, by which I may be seen as equal—even if I am stranger.”

The encampment organizers rejected the notion that only the powerful few have the right to contract and instead prompt us to reimagine a world where everyone – especially the most vulnerable of us – can claim and occupy a right to contract. Through collective organizing, the encampment organizers animated a dormant right and transform the unilateral process of contracting for housing into a bilateral one. They disentangle the right to contract from the distribution of property rights, which snowballs into empowering communities to confront the distribution of property rights and to enter agreements that enshrine the right to housing. Under a regime of commodified housing, property rights, contracting rights, and the right to housing are like a set of Russian nesting dolls, and the encampments’ occupation of the right to contract in pursuit of the right to housing and dignity fundamentally challenges the allocation of property rights. More succinctly, in the words of encampment resident and organizer Dee Black, “we want our rights back!”