Almost 2 in every 1000 Americans are currently homeless. While this tragic reality has gained prominence in recent years as a pressing social and political issue, it has not traditionally been considered a constitutional issue. As the French poet Anatole France once observed: “the law,” “in its majestic equality . . . forbids rich and poor alike to sleep under bridges.” The U.S. Constitution is certainly majestic in this way: it’s committed strongly to formal equality, but it lacks any commitment to social welfare rights. Indeed, time and again, the Supreme Court has reaffirmed this insight, holding that there is no federal constitutional right to minimal subsistence, education, or healthcare. And it has made clear that there’s certainly no constitutional right to housing.
Since late 2018, however, this longstanding aversion to constitutional social rights has started to give way. In a series of decisions, the Ninth Circuit Court of Appeals, which has jurisdiction over 20 percent of Americans and 42 percent of the nation’s homeless individuals, has, apparently without intending to, created a right unique in the American constitutional tradition: an effective license for homeless individuals to sleep under bridges, in parks, or on other public lands. The surprising basis for this new right is the Eighth Amendment. The basic logic of these decisions is that, for people with no residence – and therefore no realistic way of complying with laws banning sleeping in public places – punishing them for doing so amounts to “cruel and unusual punishment.” In a 2018 decision, Martin v Boise, the Ninth Circuit held that the city of Boise, Idaho, could not enforce city-wide anti-camping and related ordinances, so long as it lacked adequate shelter beds. The city was thus forced to accommodate homeless individuals somewhere on public land unless and until more shelter became available (which to date it has not). More recently, in a 2022 decision, Grants Pass v. Johnson, the Ninth Circuit expanded Martin to give homeless individuals the right to stay on public lands with their bedding and some belongings.
In this post, we draw on our forthcoming article to make two arguments: first, that Martin and Grants Pass create perhaps the first true federal social right, and, second, that the Ninth Circuit’s approach to doing so is innovative, even from a global perspective. By creating a weak remedy (preventing states from criminalizing actions incidental to homelessness) coupled with incentives for municipalities to do more (promote greater shelter capacity), the court has provided homeless individuals with a benefit that is immediately available: being able to have somewhere to camp with their belongings. In doing so, it avoids two pitfalls that are well-documented in the comparative literature about the judicial enforcement of social welfare rights: micro-managing social rights-related policy, and, conversely, doing so little that plaintiffs receive few tangible benefits.
How Martin Creates a Social Right
At the most general level, positive-social rights stand in contrast with negative-civil rights (sometimes, “civil and political” or “first generation” rights), which concern liberties to engage in life pursuits and participate in civic life without undue government interference. Digging a bit deeper, the concept of positive-social rights has several different connotations. Some lean on the “social” aspect, identifying them as the “rights of people to achieve their basic human needs,” encompassing group-related benefits in areas such as housing, healthcare, education, social security, and food. Others lean more on the “positive” side: providing these rights usually requires affirmative government action. Within this latter family of views, some hold that positive-social rights entail a duty to act, while negative-civil rights entail a duty not to, while others identify a positive-social right as a “claim to something,” such as a scarce good.
Historically, U.S. federal constitutional law has recognized positive-social rights only to a very limited extent. If we focus on the positive dimension of positive-social rights, we find that the U.S. Constitution imposes no positive obligations, at least not unless the government is already constraining liberty, such as through prosecution or imprisonment. And if we focus on the social dimension of positive-social rights, we similarly come up empty-handed: perhaps the closest thing to a social right in the United States is the procedural protection that attaches to the reliance interests created by existing social-welfare programs, which cannot be taken away without a hearing. But even here, this right exists only when the government has already acted by creating social welfare programs.
Martin and Grants Pass may well create the first true positive-social right at the federal level. While it is debatable whether the right to sleep on public land entails an “obligation of government action” or a “claim to something,” at least under the “social welfare provision” connotation, a right for involuntarily homeless individuals to use public spaces to sleep with some of their belongings surely constitutes a positive-social right, as it’s effectively a license to a piece of public land. To be sure, it’s as minimal a shelter right as can be, but for many with no property of their own, it could well represent a valued legal entitlement.
The Global Perspective
What difference does it make if a right is a positive-social right? A great deal, it turns out. Notably, the creation of social rights generally implies justiciability—that is, it implies the right is something over which a court can exercise judicial authority. This consequence raises important questions about how courts can protect the well-being of the most vulnerable, while also leaving a meaningful role for political actors.
An important insight from the comparative literature is that courts are best suited to create weak remedies, since they are neither democratically elected nor possess the expertise to dictate social-rights related policies. In other words, when enforcing social rights, judges ought to minimally scrutinize social policies (or lack thereof), while leaving substantial discretion over implementation to the political branches.
The textbook example of a weak intervention is the South African Constitutional Court’s 2000 housing decision, South Africa v. Grootboom. The case concerned the eviction of Irene Grootboom’s community of over 800 people from private land earmarked for low-cost housing. The court held that the state’s failure to craft a “well-documented” and “reasonable” housing policy that accounted for society’s most vulnerable violated the Constitution’s right to access adequate housing. However, the court stopped short of mandating emergency housing. Instead, without setting any timetable, it merely directed the government to devise and execute a viable housing strategy. The court took this minimalist approach largely out of concerns for its institutional capacity to make decisions outside its competence.
The judgment attracted praise from academics and policy-makers around the world as an example of how courts could enforce social rights while respecting the expertise of other branches. Yet as a practical matter, the decision did very little for those involved. Ms. Grootboom died “homeless and penniless” on a housing waitlist eight years later. And while housing policies were eventually enacted, they were marked by ongoing delays, and, more importantly, would likely have been implemented anyway.
The Ninth Circuit cases are also a “weak remedy.” The Ninth Circuit does not micromanage local governments’ shelter programs, as state courts in New York have done under the N.Y. state constitution. It states merely that municipalities cannot punish homeless individuals for not going away when they have no legal right to go anywhere else. This minimalist edict doesn’t mandate any policy change with respect to housing, let alone dictate the details of that response. But by opening the public parks to homeless communities, and thereby raising the profile of homelessness issues, it has certainly incentivized municipalities to enact policy reform, in whatever form.
But unlike Grootboom, the Ninth Circuit case law actually confers some immediate benefit on the plaintiffs. Jurisdictions must permit some degree of urban camping unless they can shelter homeless individuals. This qualified urban camping right means that they are neither jailed, nor forced to move on to even less comfortable or more dangerous premises, but rather have a qualified right to remain. Of course, we recognize that this right to remain is limited. While some jurisdictions initially created a mostly unrestricted right to urban camping, many have since gone out of their way to restrict this right and hide homelessness from the public eye. Even so, the right is not nothing; and likely preferable to forced relocation or incarceration.
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This coming summer, the Supreme Court may roll back much of the Ninth Circuit jurisprudence, thereby undermining the existence of a social right at the federal level. Nevertheless, much of this limited social right will remain, as aspects of it have been codified in many state and local laws (including, most relevantly to the plaintiffs in Grants Pass, in Oregon). Governor Gavin Newsom, in his Grants Pass amicus brief in support of neither party, endorses the Martin decision in a narrow sense, and this approach might well be codified in California state law.
Of course, social rights at the state level are not novel: state constitutions contain many such rights. Yet, the new minimal social rights for the homeless, with its origins in federal law, stands in stark contrast with more maximalist existing approaches that have focused on shelter. As shelter rights are under intense political pressure in New York City (which has pioneered this approach), we suspect that the minimalist approach to social rights will prevail in years to come. What we have seen, then, is the emergence of a novel American right to sleep under bridges, or elsewhere on public land.
This post is based on “The New Homelessness,” forthcoming in the California Law Review.
