This week, we’re sharing two discussions on John Whitlow’s recently published article reflecting on New York’s right to counsel in evictions proceedings. Our contributors share visions of right to counsel that move beyond due process rights. The contributors show that right to counsel campaigns are part of broader movements that seek to address the material deprivation underlying the need for counsel in the first place.
John Whitlow –
In his seminal article about the relation of Gideon to the crisis of mass incarceration, Paul Butler poses the following question: “When the problem is lack of a right, one keeps going to court until a court declares the right. When the problem is material deprivation suffered on the basis of race and class, where, exactly, does one go for the fix?” As an increasing number of cities enact the right to counsel in eviction proceedings, it is imperative that we apply Butler’s query to the deep crisis of affordable housing. To what extent does a right to counsel in this context have the capacity to move beyond the confines of individual Housing Court cases, to the structural underpinnings of gentrification and displacement? Can the right to counsel be wielded in a manner that builds the power of an emergent tenant movement that is mobilizing for redistributive policy reforms and is fighting to prioritize the use value of housing over its value as real estate? In the following paragraphs—which are a distillation of the arguments made in my recently-published article—I address these questions, pointing out how the right to counsel is being deployed expansively by tenants and organizers in New York City as part of a broad-based effort to democratize and de-commodify housing.
Within the liberal legal tradition, rights have typically operated as guarantors of formal, rather than structural, equality. That is, these formal rights by and large fail to disturb—and may even reify—the structural arrangements that underpin social inequalities and relations of domination and subordination. Because the political emancipation that theoretically flows from liberal rights regimes is located squarely within the prevailing social order, its benefits typically do not redound to those at the bottom of that order. A narrow focus on legal rights in this context tends to individualize inequality and stratification, and in the process legitimizes the status quo by failing to contend with how power is distributed in society. Wendy Brown has put this set of concerns about legal rights succinctly: “Rights in liberalism . . . tend to depoliticize the conditions they articulate.”