The 9th Circuit Is Wrong: There’s No Homelessness Protection Clause in Constitution

By Paul J. Larkin and Zack Smith, The Daily Signal | January 19, 2024

Once upon a time, constitutional interpretation actually involved interpreting the text of the Constitution.

It’s not a blank slate. Its words have actual meanings. While the federal 9th U.S. Circuit Court of Appeals recognizes that the Constitution contains words, the judges on that court seem to think they can ascribe any meaning—no matter how outlandish—to those words.

One of their latest provocations can be found in a series of three cases: Martin v. City of Boise, Johnson v. City of Grants Pass, and Coalition on Homelessness v. San Francisco.

Martin, the lead case, held that the government may not punish a homeless individual for sleeping on public property if there is no bed in a secular facility for him or her to use free of charge. (The decisions actually go much further, but let’s take it slowly.)

Now, that ruling might surprise most people, because the government holds public property for the benefit of the public and has the same right to decide who can sleep (or camp, or micturate, or do No. 2) on public property that private parties have to protect their own property. Plus, there is neither a homeless protection clause in the Constitution, nor a right-to-sleep-on-public-property Clause.

To be fair, the 9th Circuit did point to a passage in the Constitution—the Eighth Amendment’s cruel and unusual punishments clause—that the court thought justified its ruling. This provision prohibits the infliction of “cruel and unusual punishments.” (Yes, we had the same puzzled look that you now have, but read on.) It says nothing about whether the government can criminalize certain conduct.

But the 9th Circuit mistakenly thought that the Supreme Court’s decisions in Robinson v. California and Powell v. Texas held that an act must be voluntary for a state to make it a crime and sleeping is involuntary. Accordingly, the laws at issue must fall.

But legal interpretation is not like Creative Writing 101 or a class on cubism. There is a limit as to how far the Supreme Court’s words can be stretched before the reader distorts their meaning.

Robinson held that the state cannot make it a crime to be addicted to drugs (as opposed to possessing or distributing drugs), while Powell held that a state may define public drunkenness as a crime. The latter decision, written by Justice Thurgood Marshall (who was hardly an “extreme MAGA” Republican), is particularly relevant because it expressly distinguished being drunk in public from being drunk at home, with the former being a fit subject for a criminal sanction.

That decision should have made short work of the case, but it wouldn’t have given the 9th Circuit the result it wanted. So, a little improv was necessary.

In the second case, Grants Pass, the 9th Circuit went even further and held that the city could not enforce criminal or civil penalties in an attempt to enforce the city’s anti-camping laws.

And, most recently, in Coalition on Homelessness, Judge Patrick Bumatay, dissenting from the decision, said the 9th Circuit “let stand an injunction permitting homeless persons to sleep anywhere, anytime in public in the City of San Francisco unless adequate shelter is provided.”

He went on to say that this “represents yet another expansion” of the 9th Circuit’s “cruel and unusual Eighth Amendment jurisprudence.” He explained that in reality, though, the decision itself is “cruel because it leaves the citizens of San Francisco powerless to enforce their own health and safety laws without the permission of a federal judge.” And he said the decision is “unusual because no other court in the country has interpreted the Constitution in this way.”

After all, the state’s decision to prohibit sleeping on public property is not an irrational or mean-spirited attack on the homeless. The homeless encampments that have taken over the streets in places like San Francisco, Los Angeles, and Seattle rob the public of the opportunity to use those areas safely.

Plus, as Sam Quinones, a journalist who has chronicled America’s ongoing drug crisis, put it, “[t]hough other drugs and alcohol are part of the mix, many encampments are simply meth colonies.”

Homeless encampments are rife with open drug sales and use, along with prostitution and the fact or threat of violence—including violence against the homeless in those camps—and they are governed by the law of the jungle, as the strong prey on the weak.

Fortunately, the U.S. Supreme Court last week agreed to hear the Grants Pass case and has a chance to undo the damage done by the 9th Circuit’s bizarre use of the Eighth Amendment’s cruel and unusual punishment clause to prohibit cities from protecting their own residents and properties.

Whatever you can say about the policy choice reflected by the 9th Circuit’s rulings, those decisions make almost no pretense of finding a home in the Constitution. They are result-oriented jurisprudence at its worst, proof that an intellectually dishonest judge can reach any result he or she wants just by writing grammatically correct sentences and sprinkling in a few citations to, or quotations from, Supreme Court decisions.

The Supreme Court should reverse the 9th Circuit’s judgment in the Grants Pass case, allow public officials to address the problems of homelessness and public safety, and order that the judges responsible for that atrocity be publicly (at least metaphorically) spanked—a fitting punishment that no doubt most honest observers would find neither cruel nor unusual.

Paul J. Larkin directs The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level, as senior legal research fellow in the Center for Legal and Judicial Studies.

Zack Smith is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

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