The Supreme Court ruled in June in Grants Pass v. Johnson that municipalities in the United States may legally arrest unhoused people for sleeping outdoors, even if no alternative was available to them. Municipalities may arrest and jail people for using blankets to keep warm, or laying on a park bench. As Justice Sotomayor wrote in the dissent, “that is unconscionable and unconstitutional” because “punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”

The topics of the JER Forum released this Summer—local governance, police power, and the experiences of those who were governed and who governed their neighbors in the early republic—were at the heart of this case. Panorama readers well know that as the judiciary moves further toward originalist interpretations of American law, justices are relying more on understandings of the “history and tradition” of jurisprudence in early America to rule in the twenty-first century. I argued in an essay on Overseers of the Poor in this Forum that overseers, along with other local officials like constables and justices of the peace, held a substantial police power within early republic municipalities, exercising discretion on how poor laws and settlement laws were enforced. As a result, they shaped the makeup of communities and limited individual autonomy in decision-making about residence, settlement, and belonging. They arrested people for vagrancy, deported them from towns, “warned” them out of the rights of residents, and generally surveilled people experiencing poverty.

A brief filed by Idaho, Montana, and 22 other states in support of the petitioners in Grants Pass v. Johnson cited the work of early republic historians about carceral responses to poverty, and used it to support strong local-level interventions. They rested their arguments on the historical powers of overseers of the poor, justices of the peace, constables, watchmen, and sheriffs. The texts the petitioners and amici cite very clearly list the damage caused by vagrancy statutes and poor laws. But the petitioners have leveraged them to claim a right to police power: “Since the Founding,” they wrote, “states have been able to criminalize ‘wandering about the streets without a house’ and similar conduct  . . . Many States and localities have considered criminal provisions to be necessary in addition to more humanitarian efforts like providing money, jobs, and housing to the homeless—measures with an equally long historical pedigree. If the Ninth Circuit’s approach is affirmed, States will be deprived of a valuable tool to combat the public harms associated with homelessness, one they have wielded for as long as they have existed as sovereigns.”

One could argue that they’re reading the history correctly: These powers have historically existed for municipal governments to police, incarcerate, and deport unhoused people. But these powers have been gradually rolled back since the Supreme Court declared vagrancy laws unconstitutional in 1972 in Papachristou v. Jacksonville. It is obviously inhumane to arrest and jail a person who cannot afford or locate a public shelter for being unhoused, as the Ninth Circuit court found in Martin v. Boise in 2018.  The court’s framing involves highly selective readings of the historiography and a willful misrepresentation of history, as several amicus briefs submitted to counter the petitioners argued: “The City and its amici invoke history and tradition to justify the Ordinances, but that effort is unjustified and self-defeating . . . . From their very inception—in both their purpose and application—vagrancy laws have functioned in ways that offend our evolving standards of decency, liberty, and equality. [The court] should instead reaffirm that there is no safe harbor to be found in the abhorrent and painful history of vagrancy laws in the United States.”

There is an abundance of data from the nineteenth, twentieth, and twenty-first centuries gathered by scholars as well as activists and policymakers that shows that criminalization of homelessness does not prevent people from becoming unhoused. True anti-poverty programming and direct survival assistance does that. If the goal of the amici curiae in this case is to prevent the “crisis of homelessness” from worsening, and relieve both the individuals experiencing homelessness and the governments and agencies responsible for helping them, clawing back the municipalities’ police power in this case is not going to achieve that goal.

The National Alliance to End Homelessness argued that the court should turn away from the penal response to homelessness and turn toward “evidence-based solutions . . .  like low barrier shelter, affordable housing, and services.” Reaching back to nineteenth-century police powers to undo decades of progress toward decriminalizing poverty will not decrease rates of houselessness. Criminalizing homelessness puts an even greater burden on an already inhumane carceral system and increases the likelihood that individuals will continue to struggle to find work, income, and survival resources. One amicus brief submitted in Grants Pass, generated by more than 57 social scientists and humanists who have studied these topics, argued “anti-homeless laws like the scheme in Grants Pass serve no penological purpose. Research consistently shows that the enforcement of anti-homeless laws because they do not successfully reduce homelessness or its negative effects”; rather, “alternatives to criminalization exist and have been shown to be more effective.”[2]

It’s not uncommon for political commentators or maligned public figures to refute statements made about them by accusing detractors of taking only “soundbites” out of conversational context. That is what the court is doing here, with the historical scholarship. Unfortunately, it seems like the court might also be proving the central argument of our forum right, in a twenty-first-century context: Local government actors held substantial power in the early republic, power that defined how people viewed their own rights and privileges and those of their neighbors, and that could be used to exclude and to punish.

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Endnotes

[1] See also Kristin O’Brassill-Kulfan, Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic (NYU Press, 2019).

[2] Full disclosure: I signed this brief, which can be found in full here: https://www.supremecourt.gov/DocketPDF/23/23-175/306641/20240403145657027_23-175%20Amicus%20Brief.pdf