The plight of the homeless calls out to anyone with a heart. Drug and alcohol addiction, mental illness, and the outsized cost of housing have driven a sharp uptick in the number of homeless living in tents and makeshift camps in public places.
The spiraling crisis – in all our big cities but particularly in the West – has led to cities and homeless advocates disagreeing about what the government can or should do to solve the problem versus what it must do as a matter of federal constitutional law.
That latter question is now before the Supreme Court in a case called City of Grants Pass v. Johnson. The court granted the case for review last week and will hear arguments in the case later this year. At stake is a very basic question:
Does the Constitution demand that the government do something for each of us proactively, or does it rather state what the government cannot do to us?
In City of Grants Pass, homeless advocates contend that cities like Grants Pass, Oregon, San Francisco, Phoenix and Los Angeles are fining or criminalizing the homeless of their cities just for the “crime” of living in their cities.
When cities issue citations to the homeless to remove them from public sidewalks and parks, the cities are punishing the homeless for their very existence – since the homeless are “involuntarily” homeless and need a place to sleep, after all. They have no choice in the matter. So their argument goes.
On the other hand, the cities contend they are responsible for maintaining order and protecting both public and private property. They offer this as the reason they seek to move the homeless from public spaces to places where they may receive help.
A community may want to help the homeless conquer their demons, but that does not mean it must give up the public safety and protection of private property that ceding the streets and public parks to the homeless entails.
In other words, you may have no choice about being homeless (and thus involuntarily homeless), but that does not mean you have the choice to live, sleep, and camp on public property.
A U.S. 9th Circuit Court of Appeals panel heard these arguments and sided with the homeless advocates. In a 2-1 decision that the 9th Circuit later refused to hear en banc, the panel concluded that the city of Grants Pass violated the Eighth Amendment’s cruel or unusual punishments clause when it put in place ordinances discouraging the homeless from camping and sleeping on public property.
The panel held that “involuntarily homeless persons must have ‘somewhere’ to sleep and take rudimentary precautions (bedding) against the elements.”
This remarkable conclusion – that the homeless have a right to sleep on public property because they are “involuntarily” homeless – amounts to a finding that local governments like the one in Grants Pass, Oregon, owe the homeless (and all other Americans who make their way to Grants Pass, or San Francisco, or any city at all), as a matter of constitutional law, a public place to sleep.
The 9th Circuit panel tried to downplay the importance of this conclusion, but the decision – if upheld by the Supreme Court – would drastically change how the Constitution protects our rights.
Because lurking underneath the surface of the case and that holding is an age-old philosophical issue – the difference between negative and positive rights. So, what is the difference between the two, and which does the Constitution protect?
Negative rights say what the government cannot do to you. Think freedom of speech: pursuant to the First Amendment, the government cannot censor you.
Or property rights: the government cannot take your property except for public use and only upon the payment of just compensation, as per the Fifth Amendment. Or the right to life: the government cannot take your life from you without due process, as set out in the Fifth and 14th Amendments.
On the other hand, the concept of constitutional positive rights means you have a constitutional right to government action. Before this Grants Pass case, you would struggle to think of a constitutional example of a positive right because that is not how the Constitution works.
But the 9th Circuit’s decision says the Eighth Amendment protects a positive right: the right to a place to sleep for the involuntarily homeless.
The Supreme Court has consistently rejected the idea that the Constitution requires the government to do something for us, even though the facts may draw upon our sympathies, like this one. But the homeless may have other ways to demand government help.
For example, the state of Oregon just passed a law to give the homeless the statutory right to sue their community if any local ordinance addressing their act of lying, sitting, sleeping or keeping warm and dry on public property is not “objectively reasonable.” While it is not a constitutional right, homeless people in Grants Pass have a state law right to sue the local government for a place to sleep.
As legendary federal Judge Richard Posner once observed: “the Constitution is a charter of negative rather than positive liberties… [those] who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The 14th Amendment… sought to protect Americans from oppression by state government, not to secure them basic governmental services.”
It is always risky to predict a Supreme Court outcome. But unless the Supreme Court intends to allow the 9th Circuit to change the meaning of rights that the Constitution protects, you should expect the high court to reverse the 9th Circuit’s odd conclusion that the Constitution secures for the homeless the right to a public place to sleep.
This op-ed was originally published at Fox News on January 18, 2023.