The United States Court of Appeals for the 9th Circuit is not the only reason why cities across the West Coast have been overrun with plague-infected homeless camps, but the court is a big part of the problem.
Last week’s denial by the circuit for a full court review of the efforts of Grants Pass, Oregon, to address that city’s homelessness crisis creates an opportunity for the Supreme Court to step in and undo the 9th Circuit’s mistake. There is no Eighth Amendment right to camp in a public park — the 9th Circuit’s invention of such a right is spreading disease and chaos across the West, and the Supreme Court should fix the problem as soon as possible.
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Anti-vagrancy laws are older than the Constitution itself, first originating in England and crossing the Atlantic with the first colonists. Most colonies had anti-vagrancy laws before the revolution, and they kept them through the foundation and growth of the republic.
When the founders adopted the Bill of Rights, not one person suggested there should be a right to camp on city property. Patrick Henry did worry that Congress “may introduce the practice of France, Spain, and Germany — of torturing, to extort a confession of the crime.” So he suggested adding an amendment to prevent such punishment by adding the Eighth Amendment, which says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment has since been used to overturn sentences for crimes that were considered disproportionate, including life sentences for juvenile offenders. Never has the Eighth Amendment been used to invalidate a criminal statute entirely. Never, that is, until the 9th Circuit did exactly that in 2018.
In Martin v. Boise, the 9th Circuit held that cities were prohibited from enforcing their anti-camping statutes unless they could prove that the city had enough shelter beds available to house every homeless person in the city. Never mind that most homeless don’t want shelter — usually because they don’t want to comply with shelter rules. If there were one more homeless person in the city than beds available, not a single anti-camping citation could be given out.
The homeless population was already rising before Martin, but it has exploded since then. More than half of all unsheltered homeless people now live in California alone, and Los Angeles has over 70,000 homeless people in encampments today.
These encampments take up entire parks, denying their use by otherwise law-abiding citizens. They have become vectors for diseases, including literally the plague, as well as for robbery, rape, and open drug use.
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Homelessness is a complex problem caused by a number of factors, including environmental regulations that prevent affordable housing, drug legalization that creates more addicts, and inadequate systems for dealing with mental health concerns. But denying cities the ability to clear out public spaces and disincentivize public camping is also making this problem harder to deal with.
The Supreme Court wisely took abortion regulation out of federal courts and returned it to democratically elected leaders a year ago. It is time they did the same thing for homelessness policy now.