Do the homeless have a right to live on public property? In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that they do. Today, however, with growing homeless encampments commonplace in many cities, the U.S. Supreme Court will hear oral arguments on Monday in a case that will reevaluate that question.
In City of Grants Pass v. Johnson, the Ninth Circuit held that the Eighth Amendment’s cruel and unusual punishments clause prohibits a state from using its criminal or civil law to prevent the homeless from “sleeping” on public property unless there is indoor bed space available from nonsectarian parties that every such person can use to sleep.
In essence, the Ninth Circuit read that clause to grant the homeless a right to live on public property until the government creates adequate housing for them — which is tantamount to saying that the homeless have a constitutional right to public housing. The Supreme Court should categorically reject this gross distortion of the Constitution and reverse the Ninth Circuit’s opinion.
For starters, nothing — and we mean nothing — in the text or history of the cruel and unusual punishments clause remotely grants anyone a right to public housing. The text refers only to “punishment” for a crime. Keeping anyone, including the homeless, from sleeping on public property is not remotely a “punishment.” It is merely proper public land management done for the citizenry’s benefit.
History proves that the founding era adopted that clause to keep the government from boiling convicted felons in oil or inflicting on them equally ghastly sanctions. It is ludicrous to suggest that anyone living in 1791, when the Bill of Rights became law, would or could have read that clause as granting homeless individuals a federal constitutional right to public housing.
It is equally unimaginable to suggest that anyone other than a result-oriented judge bent on willfully substituting his or her personal political preferences for the law, could adopt such an interpretation of the cruel and unusual punishments clause today. Each Ninth Circuit judge who joined in that ruling willfully violated the oath each one took to “faithfully and impartially discharge and perform all the duties incumbent upon me as [a judge] under the Constitution.”
Indeed, the Supreme Court expressly rejected the right invented by the Ninth Circuit in at least two separate decisions. Lindsey v. Normet ruled that the Constitution does not guarantee the indigent the right to a home. Clark v. Community for Creative Nonviolence ruled that the Constitution does not guarantee the homeless a right to sleep on public property.
Moreover, the court later held in Kadrmas v. Dickinson Public Schools (along with several other decisions) that the Constitution does not oblige the government to dispense public welfare benefits of any type. But, hey, the Ninth Circuit judges who joined this opinion obviously live by the maxim “go big or go home.” If you’re going to ignore one Supreme Court decision, what’s two (or three or four) more?
Homelessness has existed since the common law first identified property rights in William the Conqueror’s Doomsday Book of 1086. What makes today’s homelessness different are three factors: (1) the prevalence of illicit drug use by members of the homeless population, particularly synthetically created drugs such as methamphetamine and fentanyl; (2) the willingness of local governments to allow those individuals, along with the noninstitutionalized mentally ill, to use public streets and parks as informal, open-air living spaces; and (3) the ability of television and social media to create visual images of the dire conditions found in modern-day, outdoor Bedlams.
While some elected officials might be doing an inadequate, poor, or disastrous job of addressing homelessness, it is a fantasy to believe the Constitution demands that elected officials create a home or a room for everyone who wants one but can’t afford it.
How did the Ninth Circuit justify its rebellion? The majority strung together passages plucked out of context from two 1960s Supreme Court opinions — the majority opinion in Robinson v. California and Justice Byron White’s concurring opinion in Powell v. Texas. Robinson held that California could not make it a crime to be a drug addict, and Justice White in Powell said that even if a state could not criminalize being a drunkard, a state could make it a crime to be drunk in public.
That is no more than what Grants Pass, Oregon, sought to do here. Grants Pass did not make sleeping or being homeless a crime, although homeless encampments force on residents and the people who live nearby the unfortunate reality of being susceptible to high rates of crime, including illicit drug use and assault. Additionally, allowing homeless individuals to encamp on public property causes concern for a dangerous rise in prostitution, illicit drug sales and usage, and various activities that state governments opt to outlaw in the name of public safety.
Grants Pass only sought to preserve for the public at large the opportunity to use public streets and parks without having to step around people or fecal matter, without having the value of their property degraded by a living toxic waste site next door, and without being assaulted by drug addicts or the mentally ill. Neither Robinson nor Powell came close to telling the state and local governments to stand down when the homeless occupy public property, and neither one read a homeless protection clause into the Constitution. Only the Ninth Circuit did that.
In their brief before the Supreme Court, the respondents largely abandon any attempt to defend the Ninth Circuit’s misleading reading of Robinson and Powell. Instead, their argument is that a municipality or county cannot enforce its trespass laws in a way that forces the homeless to leave the county for a different location. Grants Pass has not physically rounded up anyone and put them on planes, trains, or automobiles bound elsewhere. Aside from being factually inaccurate, the respondents’ argument is just another form of the claim that the homeless have a constitutional right to a home wherever they happen to land.
But if adopted, that argument would place on every city and county in the nation the burden of guaranteeing a home for the homeless because no jurisdiction would be able to enforce its public property trespass laws unless there were somewhere for the homeless to live. No jurisdiction would be able to escape that obligation by pointing to the ample supply of living quarters in a neighboring jurisdiction.
Every jurisdiction — not just the 50 states, but also the more than 3,140 counties across the nation — would have to set aside shelter for the homeless just to ensure that they have room wherever they happen to come to rest. That is no different than saying that the homeless have a constitutional right to shelter that is enforceable against every state and county in the nation. That’s an impressive claim to make, particularly in the teeth of the Supreme Court decisions already rejecting it.
In “Top Gun: Maverick,” after seeing Captain Pete “Maverick” Mitchell (Tom Cruise) break Mach 10 in a hypersonic aircraft, Rear Admiral Chester “Hammer” Cain (Ed Harris) remarks, “You got some balls, stick jockey. I’ll give you that.” The same could be said of the respondents and the Ninth Circuit in the Grants Pass case.
But audacity is all they have. The Supreme Court should reject this attempt to make up a Constitution that does not exist and reverse the Ninth Circuit.
Paul J. Larkin is the Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Julia Jacobson is a Center intern.
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