Proponents of the city of Austin’s repeal of its ban on homeless encampments and other vagrancy laws have tried to justify their support by pointing to a recent federal court decision out of Idaho. Not only is this Ninth Circuit opinion not binding in Texas but the court’s rationale would not apply to the situation in Austin. Under both constitutional and common law principles, Austin’s prior homeless regulations were lawful and would be upheld by courts if challenged.
In Martin v. City of Boise, a Ninth Circuit panel found the Idaho city’s public camping ordinance unconstitutional because it decided that the Constitution “prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” As other members of the court recognized, this holding took the extraordinary step of “creating new constitutional rights.”
This “right” to live on the streets would have been unrecognizable to America’s founders. It certainly is not the kind of “unalienable” right that governments are instituted to secure. Instead, this creates the power for one segment of the population to expropriate public land for its own purposes and to the exclusion of that property’s use and enjoyment by others.
The founding generation would have recognized homeless camping bans as rather mundane examples of vagrancy laws, which were widespread at the founding and date back to at least the mid-1300s. Such laws have long been considered a valid exercise of the “police powers” of the states in our federalist system—the powers to pass laws advancing the health, safety, morals, and general welfare of a state’s inhabitants.
Indeed, one of the primary powers that people give to local governments is the ability to prevent activities that would constitute a public nuisance. While my neighbor may generally have the right to do what he wishes on his land, that right does not include activities that will harm me on my land. And this logic extends to activities done on public land, including publicly relieving oneself, leaving used needles on the ground, and living in conditions that attract fleas, rodents, and other disease transmitting animals.
With the long history of the police powers’ use to prevent such harm, combined with the absence of any violation of an enumerated right, the Ninth Circuit should have upheld the Boise ordinance. Instead, the court decided that criminalizing camping on the streets was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishments.
But the Ninth Circuit panel’s reliance on the Eighth Amendment is absurd for several reasons. As originally understood, “cruel and unusual” meant the sorts of outrageous, arbitrary actions taken by the King’s Bench in late-17th century England, including drawing and quartering, burning, beheading, and disemboweling. Further, that Amendment’s prohibition only applied to “punishments” of those that had been convicted of a crime. But forbidding camping is neither “cruel and unusual” nor a punishment following conviction.
Even accepting the Supreme Court’s earlier departure from this original meaning, the Ninth Circuit’s decision remains unsupportable. In 1962, the Warren Court struck down a law that criminalized drug addiction. In a later case, the Court explained that this decision was based on the prohibition against criminalizing a “status” rather than an “act.” But that is exactly what Boise’s ordinance did—criminalize the act of camping on streets and sidewalks, not the status of being homeless. And before its repeal, Austin’s ordinance did the exact same thing.
Thankfully, the Ninth Circuit’s rulings are not binding on states outside of their jurisdiction. In the unlikely event that the Fifth Circuit adopts the reasoning in Martin, Austin’s more limited ban would still pass constitutional muster. In Boise, the ban applied to all areas within the city, while Austin’s ban only covers select areas such as downtown. This means that the homeless may still travel to other areas of the city, where at least the problems and challenges that these folks often bring with them are geographically diluted.
The Texas state government has gone even further by dedicating a 6.7-acre piece of state-owned property in Southeast Austin to the homeless population. This site at once provides the homeless population with better security and sanitation and moves them away from downtown, reducing difficulties experienced by employees, business owners, and tourists in the area. The property is being leased for $1 per month by ATX Helps, a nonprofit created by Austin’s business community. This dedication of state land, which was completely absent in Boise, provides yet another alternative to those who might otherwise sleep on the streets.
Even with all these efforts, homelessness remains a major problem in Austin. Any solution must come from state and local governments, private charities, and concerned citizens all doing their part. How can we best deliver mental health services to those in need? What are the best ways to help people break their drug addictions? How can we remove obstacles that dissuade homebuilders from meeting the demand for affordable housing? These weighty policy questions deserve thoughtful, effective answers. But those answers cannot come from self-appointed philosopher kings and queens donning black robes and conjuring up nonexistent rights.
Those that are trying to use the Ninth Circuit’s ruling as an excuse for Austin not to fully reinstate its homeless camping and vagrancy prohibitions are the same people that argued for repeal before the decision was issued. If such advocates believe this remains the best policy for Austin, even after the negative consequences of repeal have become apparent, they are welcome to try to persuade elected officials with a good faith argument. But they should stop hiding behind a federal court opinion addressing a very different ordinance that has no precedential value in Texas.