Ordinances Banning Public Sleeping Are Unconstitutional Cruel And Unusual Punishment? Seriously?

At first I didn't even read the story about whether laws against the homeless sleeping in public places violated the 8^th Amendment prohibition against cruel and unusual punishment.  I figured it was just one more crazy story to filter out in the effort to retain my sanity when reading our local paper, the San Francisco Chronicle.  Boy was I wrong.  This wasn't just another "only in San Francisco" story—this was the Obama administration's Department of Justice (DOJ) telling the Federal District Court in Idaho that Boise's ban on public sleeping as applied to the homeless was cruel and unusual punishment.  And it's getting the attention of cities everywhere.

You really have to appreciate all those lawyers back in Washington acknowledging that homelessness is a huge problem, pointing out that on any given night in America half a million people are homeless, with 42% sleeping in public locations.  And then going on to tell the nation's cities and mayors, "Sorry, but the way you are dealing with it, banning public camping and sleeping, is unconstitutional.  Oh, and by the way, good luck with figuring out a different solution to this huge social problem.  We've got your back—with a sharp legal filing sticking in it."

Let's agree that homelessness is a huge and complicated issue, compounded in recent years by the recession, tight housing markets, and less money for mental health, public housing and other social services.  While cities, churches and nonprofits try to establish shelters and services, local governments also seek to keep the problem away from public parks and spaces, with laws against camping or sleeping in public or in vehicles.  The latter is admittedly a bit of a defensive holding position while trying to build up the resources to tackle homelessness in more productive ways.

So into that delicate policy balance steps a team of federal lawyers from Washington, D.C.—"I'm from the government and I'm here to help," Ronald Reagan liked to joke.  And with the crudest of instruments, a legal filing, they seek to change hundreds of local policies with a creative interpretation of the constitution and a word processor.  Historically, there is judicial precedent for the notion that one should not be punished for one's condition (for example, addiction), but obviously what cities are seeking to ban is certain conduct.  Now the argument becomes more complicated when you weigh whether the homeless, in certain cities at particular times, have a choice in where to sleep.  But this feels more like a dilemma to be managed than a law seeking a ban.   We await the court's decision on this, but already many cities are nervous about the DOJ's opinion.

This is but the latest example of a growing problem—lawyers and courts as engines of social change.  As Chief Justice Roberts recently wrote in the his dissenting opinion in the gay marriage case:  "Federal courts are blunt instruments when it comes to creating rights. . .[T]hey do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right."  This is far too complicated a matter to resolve with a quick and relatively easy constitutional ban.

Let's face it, these DOJ lawyers are, as our son used to say about his big sister, throwing their weight around.  Courts have gone from being "beyond comparison the weakest of the three departments of power," as Alexander Hamilton put it in Federalist 78, to the strongest.  As recently as 1989, legal scholar Bruce Ackerman described courts as sitting in the last car of the train and deciding whether to throw on the brakes—now they've moved to the engine, powering social policy and deciding which track to take.  Courts are now the quick and easy route to change, but representative government, with its ability to study matters, engage in debate and experimentation, is the better way to tackle social problems.

Comment by clicking here.

David Davenport is a fellow at the Hoover Institution, Stanford University's policy think tank. He writes about politics, law and world affairs, piecing together where the policies underlying the headlines will lead us. He's enjoyed an interesting career as an attorney, professor, university president (Pepperdine University, 1985-2000) and now a research scholar. He recently co-authored a book called "New Deal and Modern American Conservatism.".

Reprinted from Forbes.com

Previously:
• 08/14/15: Making Sense Of The Republican Presidential Race: It's Like Major League Baseball In Augus