The problem with rights: Part 3, Once considered a promising alternative

June 7, 2017 | Affordable Housing, Government, Homelessness, Housing, legal rights, Litigation, New York City, Subsidy, Supportive housing


By: David A. Smith


[Continued from yesterday’s Part 2 and the preceding Part 1.]


So far, in exploring the problem of rights-based urban policy, we’ve seen that:


1.     The assertion of a right-based mandate (Part 1) is fraught with cost peril, because a journo-genic anecdote is blown up into a GAIA statistic, which leads to a venue-shopped judge deciding that the government’s failure to alleviate a person’s condition is a violation of that person’s rights, and by extension the rights of the entire class of ‘similar persons’.


Publish, decry, fulminate, repeat


2.     Not content simply to mandate that an unfortunate or deplorable condition disappear, judges (who spend their time adjudicating belligerence) are prone to seeing policy in Manichaean terms (good versus evil), so as soon as the judge concludes one party (the plaintiff) isn’t evil, then the other one must be – and that party is placed in judicial purgatory, forced to return to court periodically to explain how it is doing what the judge decided it must do.


You see?  I knew you could do it


That is much easier ordered than completed, in part because people are smart, no matter how addled or how disadvantaged they may be, and they treat all encounters as crooked games, which they figure out faster than those who put together the complex system do. 


Sources used and AHI major posts referenced in this post


Pro Publica (April 6, 2017), purple font

New York Times (April 14, 2017), black font

New York Times (July 23, 2013), caramel font

New York Times (June 24, 2010), burnt orange font

New York Times (April 28-30, 2002), dark green font


Hoarding and housing, February 12, 2009, 2 parts

New York’s self-reinforcing homelessness system, October 21, 2013, 3 parts

New York City’s homeless magnet, January 9, 2017, 3 parts, green shaded


In the case of New York City, as I wrote back in January in Part 2 of New York City’s homeless magnet (text back-shaded),



2. Once housing has become a judicial mandate, homelessness is ‘rationally advantaged’


The city has become the sole provider and sole payer for homeless services.  (Proponents of mandatory national health care as an entitlement, take note of the ecosystemic implications.)


Part of the city’s challenge is that, unlike many other cities, New York has a right-to-shelter provision for everyone.


Thus the accession of rights to independent living (not an ‘adult home’) followed from the accession to earlier rights (no homelessness regardless of circumstances):



[Starting in the 1970s], thousands of homeless New Yorkers each year were forced to fend for themselves on the streets.


Homeless children sleeping, New York, 1890


Despite the coalition’s choosing to frame homelessness as a modern phenomenon, to the best of my knowledge it existed in New York ever since Gotham’s founding and was much worse in the late Gilded Age (cf. Jacob Riis photographs) – a consequence of rapid industrial urbanization. 


Actually, I speculate that the only reason homelessness went so little remarked in those times because so many of them simply died of disease, malnutrition, and exposure, and hence decreased the surplus population. 


The first to warn of population surplus


[Any readers who know of historical studies on this point, please email me! – Ed.]


No, it was only we Boomers with our tumultuous rights-based approach to every problem who brought New York its judicial mandate that the city house everyone who yearned to breathe free:



In 1979 the founders of Coalition for the Homeless brought a class action lawsuit called Callahan v. Carey against the City and State arguing that a constitutional right to shelter existed in New York.  [Narrative history on the Coalition for the Homeless web site (gray font).]


The lead plaintiff in the lawsuit, Robert Callahan, was a homeless Korean War veteran who had been sleeping on the street like many other men.


Note to policy makers: Beware the lawsuit whose plaintiff has been hand-picked for maximum optics.  Such legal tactics are often effective but can yield dubious outcomes where everybody loses.


In particular, the lawsuit pointed to Article XVII of the New York State Constitution, which declares that “the aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions….” 


That quote was selectively truncated, and the full text is this:


Section 1. The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine. 


Both the manner of ‘aid, care, and support’ and the funding of such air, care and support are the prerogative of the legislature, not the judiciary, and undoubtedly that is how it was interpreted for the first forty years of its existence – until Callahan.


I quote this at length because it bears repeating: Judges have a habit of sweeping aside the economic consequences of their ‘finding of rights.’


Damn your whining about costs


Four or five decades of right-based judiciary are slowly bankrupting programs, cities, and even states:



New Jersey’s Mount Laurel decision, and Illinois’ pension-fund decision are two other examples of the judiciary usurping the power of the purse by creating unsatisfiable and therefore infinitely expandable mandates that other branches of government spend money to correct a problem the law has found the public has a right to demand be cured.  The expansive interpretation as root cause of a burgeoning unfunded mandate is a feature of both Mount Laurel and the Illinois pensions, which are bringing Illinois ever closer to state bankruptcy, as well as CalPERS’s bootstrap claim to inviolability – and because these decisions can result in sorcerer’s-apprentice uncontrollable and unsustainable costs, I have become progressively more skeptical of using the law in this way.  I think it’s bad policy and it’s certainly bad political economics.


Damn the cost, do it!


As we saw before, no matter how quickly the City of New York creates (expensive, substandard) supportive housing, the influx of people claiming it is faster:


More people, more people


The result is ever more properties, ever more people who can claim the judicial right, ever more grounds for a judge to find fault with the city:


The sprawling [Journalist trigger word alert! Implies connection and coordination and out-of-control blight.  – Ed.] network of privately run and state-regulated adult homes in New York City — once considered a promising alternative to the bleak psychiatric wards that the state began closing in the 1960s — began to face increased scrutiny for a host of abuses.


Again, with a right-based approach to a social or policy problem, there is a strong tendency to demand a rights-based perfect solution, and since a right-based solution has no price tag, the judiciary can order it on someone else’s credit card.  Then that imagined perfect solution runs up against challenges of scale – cost per customer, loss of touch per customer, inability to replicate ideal conditions everywhere – and everybody is back in the same place, only with a different unacceptable fact pattern, and the GAIA cycle begins all over again.


A 2002 investigation by The New York Times showed that many had “devolved into places of misery and neglect, just like the psychiatric institutions before them.”


For the benefit of low-information readers, the three Times 2002 articles were titled For Mentally Ill, Death and Misery, Here, Life Is Squalor and Chaos, and Voiceless, Defenseless, and a Source of Cash:


The miserable condition of adult homes for the mentally ill raises the most fundamental question: How could a system so broken remain in place for so long?


Always with us, not always housed at large


Actually, it wasn’t ‘so long’.  As this grim Mother Jones timeline makes clear, mental illness has always occurred in some people, and for most of urban history the mentally ill were housed in prison or in institutions (by 1955, it was 3% of the population), and starting in 1965 the mentally ill were ‘de-institutionalized,’ which may have done some of them good but also resulted in many of them being released into society and becoming homeless. 


Couple that with the rise of more potent psychotropic drugs – illegal and legal – and the shift to euphemistic terminology and you have the makings of a system that shuffles people from asylum to jail to shelter to street, even as it plays pass the buck. 


Who’s going to pay for my diabetes and schizophrenia treatments?


In 1981 the Federal government block-granted mental health funding to the states, and since then the states and cities have been batting the cost back and forth.  Everyone wants someone else to pay for it.


Lawsuits were filed [Passive voice, denying responsibility or human agency. – Ed.],


Note the GAIA sequence: Expose article, followed by legal-aid lawsuit.  In fact, the suits came within a year, in 2003:


No frivolous suits, please, this is serious business



[Continued tomorrow in Part 4.]