For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly committed to de jure formal equality, but it lacks even any nominal commitment to positive social-welfare rights. Starting in 2018, this began to change. A recent series of Ninth Circuit decisions gives homeless individuals a right to occupy public spaces with some of their belongings. The surprising source is the Eighth Amendment; for people with no way of complying with laws banning public sleeping, punishing them for doing so, the courts hold, constitutes cruel and unusual punishment.
These cases are the basis for the legal-political institution that we call “The New Homelessness.” As a legal institution, it entails the creation of the first true federal constitutional social right, in the form of a qualified license to camp on public lands unless the government makes shelter available. Its creation marks a departure from U.S. federal constitutional law’s longstanding, near-total aversion to positive-social rights.
As a political institution, the New Homelessness has catalyzed the erection of sanctioned encampments throughout America’s urban landscapes. As this new jurisprudence first emerged, many politically progressive, legally risk-averse local officials gave the cases an implausibly broad interpretation, effectively nullifying local anti-camping ordinances altogether. But after a public backlash, officials adopted a far narrower interpretation, giving rise to designated encampments coupled with new city-wide camping bans. The outgrowth of these developments has been profound: America’s homeless increasingly live in public encampments.
The U.S. Supreme Court granted cert in early 2024 to review the holdings, but regardless of the outcome, the New Homelessness will be a long-term fixture of American law and politics. As a legal matter, it has generated a flurry of state-level legislation, which will remain in place regardless of what the Court does. The political institution will likewise persist with the New Homelessness’s emerging social infrastructure. Absent radical measures to address the root causes of homelessness, the New Homelessness will form part of the American legal, political, and urban landscape for the foreseeable future.