(Official Washington Examiner editorial, April 26) Oral argument before the Supreme Court this week showed why it is nonsense to claim that anti-vagrancy laws violate the Constitution‘s Eighth Amendment provision against “cruel and unusual punishment.”

Indeed, in the vernacular sense, what is cruel and unusual is a judicial edict that says law-abiding citizens must put up with public spaces featuring major health hazards, including even the plague. Yet that’s what some lower courts, bizarrely, say citizens must do.

By any normal reading, the Eighth Amendment is intended to forbid overly harsh penalties, not to determine what sorts of conduct can or can’t be outlawed. Unfortunately, the far-left U.S. Court of Appeals for the 9th Circuit misapplied earlier precedent by issuing a sweeping injunction saying local governments must not clear homeless people from sleeping on public property unless governments supply enough specific indoor space for them.

The result has been an explosion of public homelessness in the 9th Circuit so massive that even the Democratic mayor of San Francisco held a rally to protest the 9th Circuit’s edict. Public parks have become so full of homeless encampments that the general public can’t use them, and some have become locations where diseases, even the plague, fester and spread.

On April 22, the Supreme Court heard oral arguments in the case of City of Grants Pass, Oregon v. Johnson, in which the town of 38,000 has laws imposing civil fines and, eventually, mild criminal penalties on vagrants who use cardboard boxes, blankets, or pillows to sleep outdoors. Several of the vagrants sued, saying the city’s laws violated the 9th Circuit’s edict and thus violated the Constitution.

Justice Clarence Thomas noted that the original plaintiffs face only civil penalties, not criminal ones, and that the Eighth Amendment’s “cruel and unusual punishment” clause has never been applied to civil matters. It was a good point, but nobody at oral argument pursued it further…. [The full editorial is at this link.]


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