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
