Building Bad: How Architectural Utility is Constrained by Politics and Damaged by Expression
Jonathan Ochshorn

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book cover

Monty Python, in their "Architects Sketch," describe a building proposal in which the universal functions of health, safety, and welfare in buildings are turned upside-down: "The tenants arrive here and are carried along the corridor on a conveyor belt in extreme comfort, past murals depicting Mediterranean scenes, towards the rotating knives."1 The sketch is funny not because it is so far off base as to be ridiculous, but precisely because it captures, and exaggerates, a plausible architectural attitude towards health, safety, and welfare. Figure 1.1, for example, shows a real architect's schematic proposal containing dangerous "protruding objects" that, while not exactly "rotating," have a knife-like appearance and a knife-like effect.2 Occupants with vision disabilities (or even distracted students without such disabilities) can collide with such projecting elements whose leading edges are not within the so-called cane sweep or cane-detection zone. Building codes prohibit such designs (see discussion in Chapter 4), yet they proliferate in architect-designed buildings and exhibitions.

Although it is clearly not possible to anticipate all the ways in which architects can make their buildings dangerous and then compile a comprehensive "negative" list of what to avoid (e.g., "rotating knives"), it is also clear that simply advising architects to make their buildings healthy and safe without providing more specific guidance is not effective. Remedies outlined in the Code of Hammurabi (c.1740 BC), which suggested that if "a builder builds a house … and the house … collapse[s] and cause[s] the death of the owner of the house [then] that builder shall be put to death," have long been superseded by prevailing standards of care and the prescriptive mandates found in building codes and zoning ordinances.3 Put another way, many utilitarian architectural functions in the health, safety, and welfare category cannot be adequately addressed by relying on common sense or moral invocations, or even by issuing voluntary standards. The historical record makes it clear that only governmental intervention, embedding minimum health, safety, and welfare standards within legally mandated codes and ordinances, has a chance of overcoming the reluctance of individual building owners to constrain the freedom of their designers or increase the cost of construction.

sharp metal protrusions shown in schematic rendering of library contrasted with current condition with cane detection guards.

Figure 1.1. The schematic proposal for a Fine Arts Library at Cornell University, designed by Wolfgang Tschapeller, contained illegal protruding objects with knife-like edges, shown photoshopped in circle "A," based on the architect's published schematic renderings. The actual as-built condition blunts the knife-edges and adds a continuous cane-detection rod below, as shown in circle "B."

Building codes regulate health, safety, and welfare in several categories: structural strength and stability, fire safety, the provision of adequate light and air, accessibility, sustainability, electrical systems, mechanical systems, and plumbing systems. Zoning ordinances, on the other hand, regulate the provision of light and air more indirectly, by constraining the size and shape of buildings, yards, and courtyards. Architects in the U.S. are also compelled to take continuing education courses related to health, safety, and welfare (HSW) in buildings not only to meet the requirements of voluntary professional organizations such as the American Institute of Architects, but also to maintain their architectural licensure in most (but not all) states in the U.S.

Providing health, safety, and welfare in this context is, of course, relative, and a more accurate statement would acknowledge that codes and ordinances are not concerned with the ideal of an absolutely safe and healthy environment (which, in any case, cannot be achieved), but instead are intended to bring about a politically and economically appropriate level of safety. This occurs when the added value attributed to governmental regulation (e.g., reduced damage from fire, or lower incidence of building collapse) exceeds the costs expended to comply with such regulation (e.g., due to requirements for additional fire-resistive material or sprinklers; or for increased structural strength to resist low-probability events such as earthquakes and hurricanes).

Governmental intervention to enforce functional requirements involving issues of health, safety, and welfare within privately owned buildings may seem both necessary and appropriate, yet the legal basis for restricting what property owners can do with their property has proven to be quite contentious in U.S. practice. The problem comes about because of the apparent contradiction between the ideal of freedom—that is, the freedom to use one's property as one desires and to exclude others from it—and the state's interest in maintaining that freedom by restricting it. The constitutional basis for this ideal of economic freedom can be found in the Fourteenth Amendment, which says in part that no state shall "deprive any person of life, liberty, or property, without due process of law."4 Yet governmental intervention to restrict precisely that freedom, in order to protect public health, safety, and welfare (as well as public morals, but that's another story with less obvious application to questions of architectural function), also has a legal basis—albeit less clearly articulated in the Constitution—in the legitimate exercise of police power:

The most obvious power of states that follows from the original meaning of the Privileges or Immunities Clause [also in the Fourteenth Amendment] is the power to prohibit any violations by some citizens of the liberties or rights of other citizens. In addition to the power of prohibiting wrongful conduct, the power of states may also properly include the power of regulating rightful behavior. It is no coincidence, then, that this very conception of state power came to be advocated by courts and commentators seeking to respect and protect the background rights of the people. This power was called the power of police or the 'police power' of the states. It is notorious for being difficult to define and limit.5

Though the discovery of this contradiction between freedom and public welfare is hardly new, specific boundaries between, on the one hand, the rights of building owners to do whatever they want with their property and, on the other hand, governmental intervention to constrain those freedoms by issuing regulations regarding health, safety, and welfare, are always in flux. As but one example, the constitutionality of zoning to regulate land use was not settled in the U.S. until 1926. Yet even the Supreme Court opinion in "Village of Euclid v. Ambler Realty Co.," while asserting that such laws "must find their justification in some aspect of the police power, asserted for the public welfare," nevertheless admitted that the "line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities."6

The fight over this contested boundary—between property rights and public welfare—determines, at least provisionally, which utilitarian functions become mandated in buildings. And although these functions can be loosely grouped under the categories of health (e.g., minimum requirements for light and air), safety (e.g., minimum requirements for structural strength or fire resistance), and welfare (e.g., minimum requirements for accessibility), there is an underlying rationale that encompasses all such governmental regulations. This rationale resolves the apparent contradiction between property rights and the public good by requiring that all state intervention be undertaken, not out of some freestanding moral impulse, or to maintain order, but rather to promote the accumulation of private wealth. "As the ideal collective capitalist, the state provides … those necessary conditions for competition which are not reproduced in competition [and] preserves the class of competitors with no property, so that it can continue being useful as a means for private property."7 In doing this, the state makes a series of calculations to maximize wealth, even explicitly mandating—at least since Ronald Reagan signed Executive Order 12291 in 1981—that "regulatory action shall not be undertaken unless the potential benefits to society from the regulation outweigh the potential costs to society."8

Thus, well-being of people or ecosystems is not the function of laws regulating health, safety, and welfare in buildings and environments, except to the extent that such well-being is consistent with the competitive needs of capital. Buildings are designed, constructed, and maintained within a competitive environment in which architecture firms, consultants, suppliers, contractors, owners, developers, and all other related businesses are compelled to find ways to lower their costs of production.9 Confronted with workers who must be paid, and natural materials that must be exploited, both human and natural "factors" of production are routinely damaged due to the constant need felt by business entities to maintain a competitive position. The word "damage" is meant to be taken literally: workers are damaged by being exposed to unsafe or unhealthy work environments, and by receiving insufficient free time, wages, and benefits to exploit their own human potential. Environmental conditions are damaged due to cost-cutting measures, taken by businesses to maintain a competitive position, which impair the ability of the natural world to sustain life. Such damage is often noticed, especially when it affects the lifestyle of the elites themselves, or when it threatens the underlying basis of the capitalist system by preventing the reproduction of the class of workers or by destroying the natural world to such an extent that its profitable exploitation can no longer be guaranteed.

The necessity to maintain at least a minimum level of "health, safety, and welfare," and the requirement for some sort of governmental intervention to overcome the destructive tendencies of profit-seeking entities, is the never-ending subject of political debate. Within that debate, the reasons and strategies advocated for individual, not-for-profit, corporate, or governmental intervention take several forms. first, for owners of property and their advocates, the essential argument against any interference with the affairs of business is based on freedom to compete with one's property, and markets to organize social production and consumption, rather than explicit social planning or regulation. The idea that business interests and their moral counterparts develop different arguments about governmental intervention is hardly controversial. As Robert Pear reported in the New York Times: "Business groups generally argue that federal regulations are onerous and needlessly add costs that are passed on to consumers, while their opponents accuse them of trying to whittle down regulations that are vital to safety and quality of life."10

Second, arguments in support of state intervention typically include appeals for human rights and social-environmental justice, based on a moral standpoint. Morality is invariably misconstrued as an intrinsically human attitude, rather than as an ideological reflection on a particular type of economic and political rule. This can be seen in the way modern, moral citizens misunderstand both the world of competition in which they are actually situated, as well as the application of state power that sustains it. Unwilling to confront the reality of these economic and political conditions, they prefer to combine their own morality with an idealization of state power: "Citizens want the law for the sake of personal advantage, despite the fact that it also restricts them. To seek their advantage, then, they also have to want those restrictions imposed on themselves, and this is what morality is. Moral citizens justify their submission to a damaging power by citing the ideal of that power, adding their own private virtue to the force imposed on them."11

A third variant, combining the business mentality of the first with the idealism of the second, argues that human rights and social-environmental justice are not only morally desirable but are logical consequences of—although at the same time subservient to—private ownership and the competitive drive for profit.

These arguments appear in various forms where governmental intervention creates functional mandates for buildings. Even so, virtually every building function involving health, safety, or welfare has, in general terms, the same trajectory. first, a "problem" arises; it becomes noticed and placed on the political agenda to the extent that it either threatens or enables business productivity (or otherwise affects the lifestyles of the elites).

Next, those opposed to governmental intervention, because their own immediate interests would be negatively impacted, typically raise the specter of socialism or wax eloquently about freedom and self-sufficiency (see first argument above). Those negatively affected by the problem begin to agitate for remediation by articulating a moral position (see second argument above). At times, the third argument emerges: moral issues raised by the problem are not only considered legitimate, but at the same time seen as being subservient to market forces which, defying all actual evidence to the contrary, are presumed uniquely capable of determining an ideal course of action.

At this point, programs are implemented that mandate minimum standards for these building functions. But an actual resolution of any particular problem for its own sake is never on the political agenda. Instead, what is debated is the appropriate minimum level of intervention consistent with the accumulation of wealth in the form of private property. Moral arguments continue to be expounded by politicians and other activists, but the actual resolution of the problem comes about through a comparison of costs and benefits attributed to competing political proposals, including the default strategy of doing nothing. While such calculations cannot typically be as precise and certain as, say, those predicting the position of a comet in relation to the earth's orbit at a certain time; while special interests or other forms of corruption may sway, to some extent, the final results; and while politicians and newscasters never fail to deliver moral platitudes about serving the common good; the outcome always, nevertheless, has its basis in the government's fundamental interest in facilitating the production of privately owned wealth and, therefore, its own power. Conventional political science texts most often abstract from this relationship between private wealth and state intervention, arguing instead that the purposes of government consist of "maintaining order (preserving life and protecting property) and providing public goods [while also sometimes] promoting equality, which is more controversial."12 Even so, the various mandated functions discussed in the chapters that follow—enforcing minimum standards of structural strength, protecting buildings from damage (security and fire safety), allowing people to participate in the workforce irrespective of handicaps or disabilities (accessibility), and reducing environmental damage attributed to building design (sustainability)—are all consistent with, and prerequisite to, this fundamental state interest.


1 "The Architects Sketch."

2 The architect's schematic renderings can be found at: Daniel Aloi, "Rand to House Luminous, Voluminous Fine Arts Library," Cornell Chronicle, January 25, 2018, here.

3 Tobriner, "History of Building Codes."

4 "Fourteenth Amendment," (my italics).

5 Barnett, "Proper Scope of Police Power," 475.

6 "Village of Euclid v. Ambler."

7 Held and Hill, The Democratic State (in Chapter 5 "The Ideal Collective Capitalist—The Social State"); bold font in the original for the words "ideal collective capitalist" and "social state" has been removed.

8 Philip Shabecoff, "Reagan Order on Cost-Benefit Analysis Stirs Economic and Political Debate," New York Times, November 7, 1981.

9 A short, unpublished, version of what follows was presented by the author as "What Sustainability Sustains," Hawaii International Conference on Arts & Humanities, January 2008.

10 Robert Pear, "Business Lobby Presses Agenda Before '08 Vote," New York Times, December 2, 2007, here.

11 Held and Hill, The Democratic State (in Chapter 4, "Justice—Protection of Person and Property—Morality"); bold font in the original for the words "morality" and "virtue" has been removed.

12 Janda, Berry, and Goldman, The Challenge of Democracy, 9.

contact | contents | bibliography | illustration credits | ⇦ introduction | chapter 1 | chapter 2 ⇨