So much for the conservative Supreme Court. The same Supreme Court that has been slow to reverse lower court decisions granting cities and states power to thwart federal immigration law suddenly believes that states are vassals of the federal judiciary when it comes to enforcing their own internal public order issues.
Yesterday, the Supreme Court denied an appeal from the city of Boise, Idaho, to reverse a Ninth Circuit ruling that the city cannot close homeless encampments on the streets because it violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Does it get more radical than that?
The growing trend of public homeless encampment is becoming a major public policy challenge for America’s cities, especially in the western part of the country. As Heather Mac Donald noted on my podcast based on extensive firsthand research of San Francisco’s homeless epidemic, the more a city caters to the culture of vagrancy, the more the public encampment takes root. It has brought with it public disorder, environmental damage, drugs, theft, and violent assaults, threatening the basic peace of city streets. “Tolerating street vagrancy is a choice that cities make; for the public good, in San Francisco and elsewhere, that choice should be unmade,” wrote Mac Donald in her blockbuster report on San Francisco’s homeless crisis.
The core job of a local government, as Madison envisioned, is to deal with “objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Keeping the streets safe, clean, and orderly is a core job of local government. Yet in September 2018, the Ninth Circuit ruled, against an Idaho district court ruling, that Boise and other cities cannot enforce anti-encampment ordinances. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property,” ruled the liberal court in Martin v. City of Boise.
This was part of a recent slew of crazy Eighth Amendment rulings from the Ninth Circuit. For example, earlier this year, the court ruled that Idaho is violating the Eighth Amendment if the state doesn’t fund a castration surgery for a male inmate in state prison. Like that case, it seemed to be a no-brainer that the Supreme Court would not allow a lower court to concoct such a sweeping and consequential new constitutional right and that it would immediately stay the injunction or at the very least take up the case on the merits. Yet, shockingly, the faux conservative court denied the appeal. That denial speaks as loudly as if the court actively ruled on this case, given the novel and insane premise of the court below.
The notion that someone has the right to camp out and defile public streets as if it’s an immutable characteristic of the person is insane. In 2000, the Eleventh Circuit (Joel v. City of Orlando) ruled in a similar lawsuit against an Orlando anti-encampment ordinance that cities can always ban a behavior that negatively affects the jurisdiction so long as they are not banning a state of being. “A distinction exists between applying criminal laws to punish conduct, which is constitutionally permissible, and applying them to punish status, which is not,” concluded a unanimous appeals court in favor of a Florida district judge’s ruling. Boise’s law is the same as the one in the Eleventh Circuit in the sense that it prohibits behavior broadly applicable to anyone without targeting an identity.
Of course, to begin with, the entire scope of the constitutional concept of “cruel and unusual punishment” was a degree of severity of criminal punishment, such as torture, not the scope of criminalization of a behavior through police issuing a citation. A citation, by definition, cannot be cruel and unusual, even if there were other legal problems with it. As Justice Thomas wrote in Graham v. Florida, “The Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights” (emphasis added).
Expanding the Eighth Amendment to include the right to public vagrancy is almost as radical as applying it to taxpayer-funded castration. This decision is so radical that even the city of Los Angeles filed an amicus brief in favor of Boise’s anti-encampment law. That places the “conservative majority” on the Supreme Court squarely to the left of L.A. politicians.
One would think this Eleventh Circuit case would be viewed as a circuit split on the issue by the Supreme Court, triggering immediate review. Yet not only can this “conservative” Supreme Court not be trusted to overturn past decades of bogus constitutional rights, it won’t even reverse new radical rights discovered by today’s lower courts.
It’s hard to overstate the significance of this ruling. Cities are being flooded with a culture of vagrancy. It’s inextricably linked to the rise in crime in many cities and states. Courts have already created a right for foreign criminals to immigrate and all sorts of novel rights for domestic criminals to avoid punishment and deterrence. Now they are creating a right to street vagrancy and public defecation. A business owner in Monroe, Washington, recently tried to report drugs and trespassing in front of her business from the vagrant encampments and was assaulted while she was snapping a picture of their behavior. A local police officer told her that they have a right to be there. “He told me that the vagrant had the right to defend himself [from my photography],” said a distraught Jovanna Edge. “And he was defending himself with the rock and with this bottle of liquid.”
Inalienable rights protected by the Constitution, by definition, are things that don’t harm the civil society at large. The growth of street vagrancy and the breakdown of public order are causing enormous fiscal and security threats.
The day the Supreme Court upheld a right for courts to override our self-government at the most local level yesterday happened to be the 246th anniversary of the Boston Tea Party. On December 16, 1773, the colonists living in Boston publicly rebelled against the concept of taxation without representation. What we face today is a greater threat to self-government – that of social transformation without representation. Any random federal court can create the most radical non-right “rights” imaginable and socially transform our communities through them. But only if we let them. (For more from the author of “Supreme Court Agrees to Constitutional Right to Camp on City Streets” please click HERE)
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