"To view homeless people in our midst is deeply disturbing in a country of such vast wealth... The attack must be on the cause, not the victims; for they in the main are no more content with their circumstances than anyone else is."Given the current climate of gentrification and the subsequent criminalization of homelessness here in Nashville, the following Georgetown law review is required reading for anyone interested in what's going on, how to deal with it, and how to change it..... (You will need a sub to Lexis Nexis to access the links in the following piece)
While homelessness has been a constant presence in American cities throughout the past generation, the portrayal and treatment of the homeless has shifted dramatically since the 1980s. n1 During the 1980s, when central cities across the nation were in disrepair and decline, n2 homelessness was widely viewed as the most critical social issue in urban America. n3 The public debate at the time dealt with how to identify and implement long-term solutions to homelessness, including the provision of adequate shelter and stable income. n4 Two complementary trends in urban America changed this debate: the revitalization of downtowns and the increase of "compassion fatigue" n5 towards the poor. These trends have shifted cities' efforts to address homelessness from the more humane treatment of the homeless to the creation of anti-nuisance laws that make the homeless population less visible and less intrusive to urban residential and business communities. n6
The passage of anti-nuisance laws has been a nationwide phenomenon. A 2002 survey of fifty municipal codes and police practices in the nation's largest cities found without exception that every city had imposed some type of restraint on the use of public space, but had not provided a sufficient number of shelter beds or [*546] transitional housing units to meet the needs of the cities' homeless populations. n7 Such regulations included prohibitions against camping outdoors, n8 offering food to people in public, n9 and panhandling without a license, n10 as well as discriminatory enforcement of existing public space laws specifically against homeless people (such as selectively enforcing prohibitions against feeding pigeons in public areas n11 and soliciting cars at stop lights for donations n12). Penalties under these laws vary significantly across jurisdictions but typically consist of a fine and/or jail sentence. The evolution of these laws without a contemporaneous
Although anti-nuisance laws have become a popular method for making the urban homeless less visible, whether the implementation and enforcement of anti-nuisance laws proves to be worth the negative consequences remains to be seen. This Note will attempt to assess the tangible impact of such laws, taking into account their costs to the homeless themselves and to the criminal justice system overall. Furthermore, this Note will address the intangible effects of the laws, including the threat that they pose to America's ability to meet its constitutional commitments to minority and marginalized communities. n14 I argue that the perceived benefits of the laws do not compensate for their extraordinary tangible and intangible costs.
Before undertaking a substantive analysis of anti-nuisance ordinances, the specific population targeted by the laws must be defined. Thus, Part I will define homelessness, [*547] distinguishing between the street homeless who are most affected by anti-nuisance laws and those individuals who are simply susceptible to homelessness due to extreme poverty. n15 Part II will outline the strategies that cities have pursued in criminalizing the behavior of the homeless. Anti-nuisance laws have been strongly criticized by homeless advocates and legal scholars, and Part HI will outline the legal challenges to these laws, most of which have been unsuccessful. In light of the failure of the legal arguments in the courts, Part IV will pose an alternative critique of anti-nuisance laws based not on their constitutional flaws, but instead on their costs to important constituencies.
I. ELUSIVE DEFINITIONS: WHO ARE THE HOMELESS?
One of the most challenging tasks for advocates and social scientists is arriving at a suitable definition for what it means to be homeless. n16 This difficulty results from two phenomena. First, the homeless are an extremely diverse population, n17 whose situations have innumerable causes and take many distinct forms. Identifying with particularity the common traits shared by a majority of the homeless is simply not possible. n18 This includes the basic presumption that all homeless people simply "lack a home," as there is a spectrum between those who sleep on the street, those who stay with friends and family, and those who stay in shelters. Second, advocates, commentators, and social scientists who deal with homeless issues have varying agendas, and they tend to refer to different images of the homeless depending on which best supports their arguments. n19
The broadest definition of the homeless includes all of those individuals who will experience a spell of being without a home during a given one-year period. n20 As of 2000, 2.3 million individuals in America (just under 1% of the population) met this criterion. n21 The definition commonly used by the government in crafting programs serving the homeless tends to be more limited. These programs define the homeless as those "who lack a fixed, regular, and adequate nighttime residence," who live in a shelter intended for the homeless, or who otherwise live in a private place "not ordinarily used as a sleeping accommodation for human [*548] beings." n22 While providing an accurate census of this population is extremely difficult, n23 the most-cited estimate is that 700,000 homeless individuals meet this definition on any given night. n24
A third conception of homelessness--that of the "street homeless"--is the most appropriate basis for an analysis of the impact of anti-nuisance laws. n25 The street homeless are those individuals who sleep regularly in public spaces outside of shelters and in conditions that are not meant for human habitation. n26 Without access to shelter that is fit for human habitation, these individuals do not have a place in which to carry out necessary daily activities such as eating, sleeping, defecating, and storing belongings--act
Widespread homelessness in urban America emerged in the early 1980s in conceit with the recession of 1981-82. n29 Prior to this period, the street homeless were primarily "'disaffiliated
Moreover, since the homeless population skyrocketed in the 1980s, certain common characteristics
With regard to the racial characteristics
Today, the street homeless are disproportionat
[*550] These commonalities among the street homeless represent traits that have been traditionally marginalized in society, indicating the struggle of the street homeless to secure wealth in society. While some economists argue for the state to broaden the opportunities available for such individuals, n44 this Utopian vision is not currently plausible as a solution for the street homeless. Instead, by virtue of their diminished access to the opportunities enjoyed by the majority of society, upward economic and social mobility is extremely difficult for the street homeless. n45 As a result, the impact of anti-nuisance provisions against this particular group of homeless people is particularly pronounced.
II. ONCE ON SKID ROW, NOW ON CELL BLOCK:
THE EVOLUTION AND CONTENT OF ANTI-NUISANCE LAWS
While anti-nuisance laws have taken on a much more prominent and aggressive tone in the past two decades, they have a long and storied history in the United States. n46 After describing the history of these laws, this section will discuss the purposes of current anti-nuisance laws.
A. History and Types of Anti-Nuisance Laws
Ordinances limiting the ability of the poor to use public spaces in America have been a part of state and local law for centuries. n47 During the early- and mid-twentieth century, every state in the nation actively enforced vagrancy laws against the unemployed poor. n48 Vagrancy laws permitted the arrest or fining of individuals in public spaces who did not have visible means of support. n49 The broad discretion inherent in such laws allowed city police forces to use them as a tool to rid the streets of "undesirables,"
[*551] Source: National Coalition for the Homeless, Illegal to Be Homeless (2004). n54
increased in the early 1980s, cities began to embrace more narrowly-tailor
NO. OF PERCENT OF TYPE OF OFFENSE CITIES SURVEYED Camping / Sleeping / Loitering Sleeping in public city-wide 22 17% Sleeping in particular public places 73 55% Camping in public city-wide 31 23% Camping in particular public places 70 53% Sitting or lying in particular public places 62 47% Loitering/Loafi 25 19% Loitering/Loafi 82 62% Obstruction of sidewalks/publi 120 90% Closure of particular public places 79 59% Panhandling / Peddling Begging in public places city-wide 41 31% Begging in particular public places 92 69% "Aggressive" panhandling 71 53% Sanitation Bathing in public waters 69 52% Urination/Defec 77 58% TOTAL 133 100%
Today, of the nation's largest cities surveyed in the periodic report by the National Law Center on Homelessness & Poverty (jointly with the National Coalition for the Homeless), every city surveyed was found to restrict access to public space in some fashion. n53 Cities employ a number of types of ordinances to reduce the visibility of the street homeless. Generally, the three types of laws used most frequently are: (1) restrictions on sleeping, sitting, or storing property in public spaces; (2) prohibitions on panhandling and peddling; and (3) when discriminatoril
In practice, although it displays the prevalence of anti-nuisance laws, the chart on the previous page does not fully depict the wide variation in enforcement methods and the level of impact that the laws have in their various jurisdictions. A number of cities (though not the majority) do not have extensive written provisions in their code, but enforcement practices have created a culture of fear and exclusion for the homeless that equals or exceeds the cultures of those cities that do have written anti-nuisance provisions. For example, in Berkeley, California, although the city code does not contain provisions specifically targeted against the homeless, the police routinely search and/or arrest people suspected of being homeless in public spaces, based on the authority of nonexistent or selectively enforced laws. n55 Other cities have had public space restrictions for a long time, but do not enforce the rules or do not levy burdensome penalties. This is the case in Minneapolis, Minnesota, which has had vagrancy laws on the books throughout the past century, but does not generally enforce the laws. n56 Public organizations and some governmental entities have called for repealing the laws. n57
Most threatening to the homeless are instances where extensive anti-nuisance provisions have been passed recently, the penalties are severe, and the enforcement is inconsistent. This issue is particularly prevalent in areas attempting to revitalize or maintain a tourism base, and enforcement is most severe during tourist season. For example, in preparation for the opening of the Clinton Presidential Library in November 2004, Little Rock, Arkansas, police took steps towards "sweeping" twenty-seven known homeless encampments in public spaces, even though they had previously agreed to leave the encampments intact. n58 Similar actions have been well-documented
Penalties under these laws typically consist of fines and jail sentences, but jurisdictions vary significantly. For example, in Roanoke, Virginia, homeless people have been fined only $ 10 for sleeping in public spaces, but in the state of Hawaii, violating a similar ban is a second degree offense and can lead to a [*553] $ 1,000 fine and thirty days in jail. n61 Penalties have also been used as a tool of coercion, effectively forcing the homeless out of downtown areas, as they are given a choice between receiving a suspended sentence and leaving downtown on the one hand or going to jail and establishing (or adding to) a criminal record on the other. n62 The common element, however, is that penalties greatly exceed a homeless person's ability to pay, and they thus have the effect of lengthening the individual's criminal record, increasing his debt to the city, or forcing him or her to leave the city out of fear of further prosecution.
B. Purpose of Modern Anti-Nuisance Laws
Politicians, business leaders, and academics who endorse the passage and enforcement of anti-nuisance laws point to three distinct rationales for their implementation:
The most commonly-cited justification is that the presence of street homeless in public spaces makes downtown neighborhoods less safe. In their seminal 1982 article Broken Windows, Wilson and Kelling argued that "if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken." n66 The "unchecked panhandler" is "the first broken window." n67 The presence of panhandlers allows for the influx of more dangerous criminals, which begins the cycle of "urban decay." n68 Thus, Wilson and Kelling contended, the mere presence of street homeless in the public sphere has the effect of unraveling the social order, leading to an increase in crime and thereby driving middle- and upper-class consumers out of downtown areas and into the suburbs. n69 By extension, the unchecked presence of homeless people would have a substantially negative impact on the safety and economic well-being of central cities.
The second rationale for implementing anti-nuisance laws is that homeless individuals sleeping, panhandling, and carrying out their daily lives in public [*554] spaces is a disincentive to tourists and other outsiders who may come into the city. n70 In a biannual assessment of criminalization
This argument has taken on special significance in the past decade, during which downtowns across the United States have experienced an unprecedented revitalization as both population and median incomes have increased and business infrastructures
Lastly, "compassion fatigue" is cited by policymakers as a rationale for endorsing and passing anti-nuisance ordinances. n76 In the 1980s, as the incidence of homelessness was increasing, homelessness was an issue of heightened priority for the public. Individuals contributed heavily to charities for the homeless, and cities spent significant resources attempting to address the issue of increased homeless populations. n77 However, by the early 1990s, enthusiasm among elites had become apathy, even antipathy, towards the homeless. n78 In an [*555] analysis of the shifting view of the elites toward the homeless, Gary Blasi compared New York Times articles on homelessness issues in the early 1980s to articles on similar subjects in the late 1980s. n79 He found that the earlier articles documented the detailed efforts to assist the homeless with housing, social services, and finances, but that in the late 1980s a sea change took place. Articles began to focus exclusively on only the "most troubled and troubling subgroups" of homeless people and on the overall "backlash" against them. n80
Related to the incidence of compassion fatigue is the rise of "NTMBYism" among city-dwellers. "NIMBYism"--"No
III. THE RISE AND FALL OF CONSTITUTIONAL PROTECTIONS FOR THE HOMELESS: LEGAL CHALLENGES TO ANTI-NUISANCE LAWS
"A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law." n83
From the 1970s to the present, courts' attitudes towards anti-nuisance laws have shifted from questioning the constitutionali
Four constitutional arguments in particular have been pursued by homeless advocates. n87 First, specifically regarding begging ordinances, plaintiffs have pursued First Amendment claims that a prohibition of panhandling, or a requirement that panhandlers possess a license, is a violation of free speech. n88 Although the rulings have not been completely consistent, most courts have not found panhandling to be protected under the First Amendment, as panhandling is considered conduct and not speech. n89
The second constitutional argument is that the frequent sweeps of homeless camps in public spaces violate the Fourth Amendment's protection of an individual's right to property. n90 Courts have held that, as long as cities do not actively seek out property owned by the homeless for condemnation and destruction, the homeless are not guaranteed a Fourth Amendment right to store personal possessions in public spaces. n91
Advocates for the homeless have also crafted an Eighth Amendment claim that criminalization
Lastly, advocates have asserted a number of constitutional challenges to prohibitions on homelessness under the Fourteenth Amendment. These arguments include asserting a violation of equal protection because the homeless deserve suspect classification n97 and asserting an infringement on the fundamental right to travel. n98 Based on the courts' consensus that being homeless does not constitute a protected "status" necessitating suspect classification under Equal Protection doctrine, the Fourteenth Amendment arguments have been largely unsuccessful. n99
There are notable and important cases in which a constitutional argument opposing an anti-nuisance law has succeeded. Therefore, homeless plaintiffs and their advocates in the legal community have continued to bring constitutional challenges to anti-nuisance laws. However, the trend in the courts has been to avoid treating the homeless as a suspect class in any way, thus allowing for deferential review of cities' anti-nuisance ordinances.
IV. THE NUISANCE OF ANTI-NUISANCE LAWS: ARE THEY REALLY WORTH IT?
The overwhelming majority of the literature critiquing anti-nuisance laws has focused on the laws' constitutional defects and on their effective exclusion of the [*558] homeless from economic and social networks. However, an alternative critique that has not been addressed in the literature is whether the laws are actually successful in achieving their stated goals. Do the costs of such ordinances outweigh the potential benefits?
As discussed in Part II.B, municipalities have a variety of objectives in passing laws that criminalize homelessness. The objectives most frequently cited are the desire to maintain public safety, to improve the city's image, and to meet the desires of middle- and upper-class elites who experience compassion fatigue and NIMBY-ism after decades of increasing homelessness. n100 Underlying this compassion fatigue and NIMBY-ism is likely a psychological desire of elites simply to make the homeless invisible, as they are a population to which the elites cannot relate and which they do not understand. n101 And because of the obvious power disparities between the groups, including the elite's access to the legislative process that the homeless lack, this underlying goal is realizable.
However, the critical question is whether realizing these objectives is worth the costs associated with anti-nuisance laws. I have identified three separate categories of costs, and I will evaluate them each in turn. These categories are: (1) costs to the homeless; (2) costs to public safety; and (3) costs of enforcement. I posit that the laws do not achieve their expected benefits and have unintended negative consequences.
A. Costs to the Homeless
It may seem obvious, but it bears repeating that being homeless is difficult. Contrary to the attitudes of the courts and the American public, who are increasingly skeptical of the "helplessness" of the homeless, n102 the majority of homeless appear to be legitimate victims of increased housing costs, urban deindustrializa
First, contrary to some of the misconceived notions of the public, the homeless have an extremely difficult time earning an even meager wage. When an individual becomes homeless, the work that is required to gain an income is extremely strenuous. In a study of street homeless in New York, 60% of those interviewed worked seven days per week and 65% worked more than seven hours per day. n104 In spite of these hours, a typical week's income for moderate- and [*559] high-functionin
Furthermore, street homeless are subject to highly disproportionat
While the homeless experience itself poses substantial challenges, laws that make it a crime for homeless people to carry out their necessary daily activities exact an even greater cost on the homeless population. In short, criminalization
In addition to the destruction of property and intimidation of the homeless, these laws have adopted two harmful enforcement mechanisms: fines and jail time. n112 The level of fines varies greatly across the country, but their payment is almost always unrealistic for the homeless. Examples of these punishments include a Cincinnati ordinance, which levies a fine of up to $ 250 for panhandling without a license and up to thirty days in jail. n113 In Orlando, sitting or sleeping on sidewalks can lead to a fine of $ 500 and 60 days in jail. n114 In Los Angeles, fines up to $ 1,000 are given to individuals urinating in public areas. n115
Levying fines on the homeless for camping, panhandling, or storing property in public space poses the obvious dilemma that the offender is likely to be unable to pay the fine. When fines are not paid, they lead to jail time, which has a significant negative impact on access to employment and social services and [*560] stigmatizes the incarcerated individual. n116 Long criminal records and indebtedness to the city lead to the possibility that the offender will be excluded from jobs, housing, credit, and public assistance benefits. n117 For example, anyone who has been incarcerated for 30 days or more suffers an automatic loss of Social Security benefits during their incarceration. n118 The alternative for the homeless person is to pay the fine, but the subsequent loss of capital prevents them from being able to afford housing and other basic necessities in the future. n119
Cities have also used the threat of penalties to coerce the homeless to leave the city limits. For example, in Reno, Nevada, police have embarked on a program where people with a history of misdemeanor charges, including trespassing on public property, public drunkenness, and panhandling, are given the choice of either (a) receiving a suspended sentence in exchange for a promise to stay out of the downtown area, or (b) going to jail. n120
While homelessness itself exacts a tremendous cost on those individuals experiencing it, anti-nuisance provisions perpetuate these circumstances and transform policy from one of mere neglect to active punishment.
B. Costs to Public Safety
Although one of the primary goals of anti-nuisance ordinances is to promote public safety, studies indicate that efforts leading to the "invisibility" of homelessness have an unintended negative impact on public safety. Two such threats to public safety exist: (1) when panhandling is outlawed, the homeless may opt to participate in more violent or subversive crimes; and (2) by focusing police efforts on deterring the otherwise innocent activities of the homeless, valuable resources are diverted away from fighting more dangerous crime.
1. Substituting Passive Panhandling With More Anti-Social Crimes
As discussed, one prevalent form of anti-nuisance provisions outlaws or severely restricts the ability of a homeless individual to panhandle in public. n121 Although panhandling is seen as a nuisance in many areas, it is more socially acceptable than violent or destructive crimes. When panhandling is outlawed without increasing the social services available to the homeless to obtain a steady [*561] income, the homeless are left with even fewer opportunities, and anti-panhandlin
Panhandling can take a variety of forms, from passive requests for change to aggressive and intimidating pursuit of handouts in public spaces. While most of the commentary on panhandling has focused on aggressive panhandling (including such activities as blocking sidewalks, persistent questioning, and even harassment), many cities have outlawed or otherwise regulated all forms of panhandling, whether aggressive or passive, in some or all downtown areas. For example, in Modesto, California, people are not allowed to ask for money "in front of banks, ATMs, at outdoor restaurants, in places where people are standing in line, and by roads and intersections,"
De facto and de jure prohibitions on panhandling have potentially negative impacts on public safety. While few studies have been conducted that attempt to track what homeless individuals who are no longer able to panhandle do to gain an income after the institution of anti-nuisance laws, the negative effects can be inferred from Toronto, Ontario's prohibition on "squeegee workers" from 2000 to 2003. n124 During the 1990s, cleaning windshields at public intersections was the primary source of income for approximately 220 people in Toronto, the majority of whom were between the ages of sixteen and twenty-five and 76% of whom were homeless. n125 In 2000, Ontario passed a statute prohibiting this "squeegeeing" and other forms of active panhandling. n126 In 2003, Bill O'Grady and Carolyn Greene canvassed homeless youths in the Toronto area in an attempt to track how former "squeegee workers" now gain an income. n127 The results indicate that many workers have turned to far more dangerous and socially-unacce
2. Misallocation of Police Resources
Rather than maintain public safety, anti-nuisance laws may actually decrease public safety due to a misallocation of funds. Enforcing ordinances against the homeless has the unintended effect of preventing police from addressing more socially destructive crimes. n129 As the Chief Superintendent of a London, England, police district has commented, increased policing of homelessness would "tie up" police resources with "processing people through the Criminal Justice system, placing vagrants before the courts whose only option is a fine or return back to the [public streets]." n130
While there is not a significant amount of public data that parses police efforts in enforcing anti-homeless ordinances from more traditional crime-fighting activity, there are numerous examples where an increased allocation of police resources for combating homelessness occurs simultaneously with a decrease in arrests for other types of crime (yet an increase in the occurrence of such crimes). One illustrative example occurred in Las Vegas, Nevada. In 2004, Las Vegas was cited by the National Coalition for the Homeless as the "Fourth Meanest City" in America with regard to laws criminalizing homelessness. n131 The city has taken numerous steps recently with regard to homeless residents, including increasing the sentence for misdemeanors such as "vagrancy" from forty-five to ninety days in jail, n132 ticketing people for passively holding up signs in public spaces, n133 and increasing the use of sweeps of encampments and other areas where the homeless store their belongings. n134 At the same time, however, the crime rate in Las Vegas jumped by 13% in 2003, the number of active officers was 15% lower than the desired target, and the overall police budget continued to be below the required [*563] amount. n135 Although not dispositive, this correlation and similar trends in other cities that aggressively target the homeless suggest that, as funds are diverted from traditional policing to enforcing anti-homeless ordinances, the crime rate may increase.
Similarly, when anti-homeless ordinances are enforced, they do not have the effect of curbing homelessness (as such ordinances rarely take place in conjunction with increased social and support services), but instead simply shift the location of the homeless from one part of the city to another. n136 This may happen informally due to uneven enforcement patterns, or it may occur by law, as many ordinances designate some poorer areas of the city as places where the homeless can panhandle, store belongings, etc. n137 Thus, while the homeless are more likely to commit crimes than the non-homeless, n138 anti-nuisance laws do not curb the net amount of crime that the homeless will commit; they simply shift the places where such crime can be committed to other, traditionally poorer areas.
C. Actual Impact of Criminalization
Lastly, laws that criminalize the behavior of homeless people simply do not achieve their central objective of removing the homeless from the city streets. Logically, in order to meet the underlying goal of all anti-nuisance laws, which is to make homelessness less visible in society, the laws should have the impact of decreasing the incidence of homelessness in the city by forcing the homeless to migrate to more "friendly" jurisdictions. However, the research indicates that such migration is not widespread. n139
In the mid-1990s, Brendan O'Flaherty surveyed the street homeless in New York City, inquiring as to their ties to the local community. Because New York is "probably the most inviting place in the United States" for the homeless due to "high density of foot traffic, large numbers of wealthy people, a recycling law that compels supermarkets to accept cans, ... relatively generous [W]elfare benefits for the nation, [and] a statutory right to shelter," n140 O'Flaherty expected that there would be a high incidence of in-migration to the city. However, his data showed that 70% of the street homeless in New York had lived in the city for [*564] more than twenty years, and 93% had lived in the city for more than five years--higher than the resting rates of the non-homeless in New York. n141 This data is supported by studies of homeless people in New Haven, Connecticut, n142 as well as studies of Philadelphia and New York shelter placements. n143
These findings point to a disconnect between a city's laws regarding homelessness and the decisions made by the homeless on whether to remain in or to leave that city. The laws clearly assume that the homeless make the most economically-ef
V. DROPPING THE WEIGHTS: ANTI-HOMELESS ORDINANCES AS A THREAT TO CONSTITUTIVE COMMITMENTS
While the practical costs of criminalizing homelessness discussed above expose a notable economic threat to multiple constituencies and goals (including the homeless themselves), public safety, and police capability, a cost-benefit analysis does not fully capture the underlying harm of such laws. First, cost-benefit analyses are insufficient tools in many public policy analyses. Instead, non-quantifiabl
Public policy analyses that depend on weighing the costs of a policy against its benefits are valuable expository tools, but these analyses are limited in their ability to provide a complete understanding of the impact of a law. The fundamental flaw in a cost-benefit analysis is that it relies on the existence of, as characterized by Lisa Heinzerling, a "statistical person" who is defined exclusively as an economic (versus political or moral) being. n145 The central problem of the use of a statistical person in conducting policy analyses is that "she is no one's sister, or daughter, or mother ... [She] is not a person at all, but rather only a collection of risks." n146 Thus, in evaluating the costs of a particular policy decision, only the economic ramifications are considered, and the intangible [*565] impact of the decision, including social, moral, and political concerns, is disregarded.
The statistical person is prominent in our discussion of laws criminalizing homelessness. For example, an analysis of the increase that anti-nuisance laws have on a city's crime rate overall (costs), as weighed against the income gained from increased tourism and commerce (benefits), treats the lawmaking process as a two-dimensional
These political and social problems revolve around the values underlying the Constitution. As discussed previously, the courts have not generally found a constitutional prohibition against anti-nuisance laws under the Bill of Rights or other amendments. n147 However, the impact that anti-nuisance laws have on the homeless undermines America's ability to realize its "constitutive commitments" under the rights that have been posited by all branches of government during the twentieth century. n148 As discussed in Cass Sunstein's recent analysis of Franklin Delano Roosevelt's January 11, 1944 State of the Union Address, in which Roosevelt introduced his "Second Bill of Rights," there is a firm governmental commitment, rooted in the Constitution, to ensure that all Americans have access to basic necessities. n149 These principles are "constitutive commitments," which are widely (though not universally) accepted as indelible positive rights that are owed to Americans, though not expressly stated in the Constitution. n150 As Sunstein argues, they occupy a "place ... somewhere in between the Declaration [of Independence] and the Constitution." n151
Important elements of this commitment, as stated in Roosevelt's speech, are "the right to earn enough to provide adequate food and clothing and recreation," and "the right of every family to a decent home." n152 The evolution of anti-nuisance laws without a commensurate provision of adequate shelter is a de facto [*566] prohibition against homeless individuals carrying out necessary daily activities. This directly undermines the positive right of Americans to access basic necessities, as established under Roosevelt's plan.
While these commitments and the concept that they are binding upon legislatures and courts are firmly rooted in today's constitutional theory, even Sunstein admits that they have not consistently been upheld in practice, particularly since the 1980s. n153 Instead, they have been questioned by many commentators to the point that one of the only generally accepted lasting commitments is that there should be universal access to the means of achieving equality. n154 Anti-nuisance laws clearly undermine even this commitment.
Through cities' attempts to make the homeless invisible to the majority of the population, the homeless are absolutely denied the opportunity to access basic needs. This is a clear violation of even the most basic constitutive commitment and thus indicates how laws removing rights from the homeless fundamentally contradict the country's system of rights.
CONCLUSION
"To view homeless people in our midst is deeply disturbing in a country of such vast wealth... The attack must be on the cause, not the victims; for they in the main are no more content with their circumstances than anyone else is." n155
This excerpt from a California court decision evaluating the constitutionali
Instead, anti-nuisance laws have attacked the victims of homelessness, to the supposed benefit of only certain classes of people. But this strategy has not been successful either. These laws have exacted costs that go beyond any of their marginal benefits. Further, they indicate a breach of the obligation that the government has to instill equality of opportunity and access, particularly for the least able of citizens. Cities across the nation should rethink their allegiance to such laws by shifting their focus back to the causes of homelessness and away from its purported costs.
Legal Topics: For related research and practice materials, see the following legal topics: Criminal Law & ProcedureCrimin
