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Wrong or (Fundamental) Right?: Substantive Due Process and the Right to Exclude

By December 1, 2023January 15th, 2024No Comments

Abstract: Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated—but nevertheless “fundamental”—rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one’s property should be a fundamental right. Yim involved a challenge to Seattle’s Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a rental applicant’s criminal history when making tenancy decisions. The plaintiffs contended that the Ordinance deprived them of their right to exclude by restricting a highly relevant consideration for tenancy decisions.

This Comment argues against the existence of a fundamental right to exclude in the substantive due process context, at least as far as commercial property is concerned. At its core, property is a thing—a resource. When property is used commercially, whether as an apartment or office building or something else, its owner’s power to limit access becomes the power to affect others engaged in the marketplace. This broad power over the public brings commercial property within the concern of the community. So, when the government places limits on the power to exclude from commercial property, it is regulating the marketplace and ensuring access is not being improperly denied to certain persons. Protecting the ability of its citizens to get by is inherently an exercise of legitimate government authority. As such, placing heightened substantive due process limits on the government’s power over the right to exclude would have dramatic consequences for the operation of government and for some individuals’ capacities to access shelter. It would seriously misapply and disfigure the law of substantive due process. The costs of recognizing a fundamental right to exclude from commercial property simply are not justified.

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