Camping and the Constitution

Larkin, Paul J.

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Camping and the Constitution

Georgetown Journal of Law & Public Policy, Forthcoming

33 Pages Posted: 9 Jan 2024 Last revised: 1 May 2024

See all articles by Paul J. Larkin

Paul J. Larkin

The Heritage Foundation

Date Written: April 30, 2024

Abstract

For some time now, advocates for the homeless have sought to find a place in the Constitution guaranteeing their clients a right to live somewhere, at least on public land. To date, the Supreme Court of the United States has turned aside such claims. In Lindsey v. Normet, the Court held that, because there is no constitutional right to occupy a home owned by someone else, the government may grant landowners civil remedies for trespass. In Clark v. Community for Creative Nonviolence, the Court held that the Free Speech Clause does not prohibit the National Park Service from barring sleeping and camping in national parks even when it is done as a form of symbolic speech protesting the inadequacy of homeless shelters. And on numerous occasions, the Court has expressly rejected the argument that the Constitution requires the government to dispense one or another type of affirmative financial or in-kind benefit. Until recently, the belief that the Constitution guarantees shelter for the homeless should have been seen as a pipe dream.

Nonetheless, in two cases decided in the past five years—Martin v. City of Boise and Johnson v. City of Grants Pass—the U.S. Court of Appeals for the Ninth Circuit gave every homeless person a right to sleep or camp on government property if there is no indoor shelter for them. The Ninth Circuit read two decisions by the Supreme Court of the United States—Robinson v. California and Powell v. Texas—as forbidding the government from punishing anyone for an involuntary act. Given the biological necessity to sleep, sleeping, with some (unspecified) accoutrements, is an involuntary condition that cannot be punished.

The Ninth Circuit’s decisions made a hash out of the law developed under the Cruel and Unusual Punishments Clause for the past 50-plus years. What is worse, the rulings constitutionalize a serious social policy issue that no honest party could plausibly say the Framers remotely sought to address through the Cruel and Unusual Punishments Clause. Homelessness is a difficult enough problem to manage when it is short-term or episodic and occurs due to temporary economic misfortune (being let go from work) or the cyclical nature of the work some individuals pursue (resort-area occupations). The problem becomes horribly complicated when, as often arises in the case of the chronically homeless, drug use and mental illness consign their victims to a life of penury and misery. The Constitution does not demand any particular response.

This Article will explain, in Part I, why the Ninth Circuit’s decisions cannot be reconciled with the text and history of the Cruel and Unusual Punishments Clause. Part II will then discuss why the Supreme Court’s opinions do not demand the result dictated by the Ninth Circuit. Part III will also explain why there is no good reason to create an entirely new rule of constitutional law to address this sad and vexing societal quandary.

Keywords: Homelessness, Drug Use, Sleeping on public property, Camping on public property, Constitution, Eighth Amendment, Cruel and Unusual Punishment's Clause

Suggested Citation: Suggested Citation

Larkin, Paul J., Camping and the Constitution (April 30, 2024). Georgetown Journal of Law & Public Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4686429