I reported earlier on Gov. Newsom’s amicus brief to the U.S. Supreme Court, in support of a court case filed by the City of Grants Pass, Oregon, which itself is related to another court case, the infamous Martin v. Boise.
Probably most of you are familiar with the basics of the latter: The city of Boise, Idaho, attempted to evict campers from public areas. The homeless people sued Boise. The courts ruled that Boise was prohibited from evicting campers if it was unable to offer them alternative shelter. Grants Pass encountered the same thing, hence their appeal to SCOTUS, which Newsom is supporting.
In so doing, Newsom is running counter to the belief that he’s a liberal. In fact, progressives despise Newsom for seeming to side with a “tough on encampments” policy. We don’t know how SCOTUS will eventually rule, but my hunch is that they’ll come out on the side of both Boise and Grants Pass and allow evictions to occur, for the simple reason that encampments—as Newsom argues—make our cities less healthy, attractive and livable, and because of the obvious fact that there is no Constitutional right to live in a tent on public property.
At the core of all these cases and appeals is a simple question: Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment? The Eighth Amendment to the U.S. Constitution states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” upon criminal defendants. But what does the text mean?
There are multiple interpretations. One, famously instigated by former Chief Justice Earl Warren, holds that the Cruel and Unusual Punishments Clause should “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Warren meant that these “evolving standards of decency” have changed over the centuries, so that what we now consider “decent” or “indecent” might be very different from what was considered “decent” or “indecent” when the Eighth Amendment was drawn up. This interpretation means, in effect, that the Supreme Court may obtain whatever result it considers desirable, regardless of what the text of the Constitution actually means. This interpretation is a “non-originalist” one, meaning that it’s considered more “liberal” (or Democratic, with a capital “D”), in that it stresses the evolutionary character of the Constitution’s meaning. (Brown v. Board of Education is perhaps the best-known example of a non-originalist decision. Approving same-sex marriage was another.)
Conservatives, on the other hand, claim to favor “originalism,” by which they mean, What did the Framers actually intend by the words they used in the Constitution? The late Justice Scalia, and current justices including Clarence Thomas and Samuel Alito, are staunch originalists; they believe they can fathom the thinking of the Founders and apply it to current interpretations of the Constitution. If the Founders had nothing to say whatsoever about an issue (e.g., same-sex marriage), then, according to this originalist philosophy, it is not subject to interpretation, and therefore same-sex marriage is unconstitutional.
CRUEL AND UNUSUAL PUNISHMENT
As the National Constitution Center explains, “The standards of cruelty that prevailed in 1791, the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in 1791, it must be acceptable today. (2) The Clause prohibits only barbaric methods of punishment, not disproportionate punishments. A life sentence for a parking violation, for example, would not violate the Constitution. (3) The Cruel and Unusual Punishments Clause does not prohibit the death penalty, because capital punishment was permissible in 1791, and because the text of the Constitution mentions the death penalty.” The only exception to this interpretation would be “if [sentences] are deliberately designed to inflict pain for pain’s sake, and are objectively harsher than punishments permissible in 1791. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category.” That would include the forcible eviction of campers from public areas.
Since the Supreme Court today is dominated by conservative originalists, we can infer the Court will probably rule in favor of Grants Pass and Boise (and Gov. Newsom) and hold that evicting campers does not violate the Eighth Amendment. Of course, any outcome is possible, but this seems the most likely, which leads to the question, if SCOTUS allows encampments to be forcibly removed, what then? That would portend a long, ambiguous period of uncertainty, as city after city attempts to parse the meaning of the SCOTUS decision and—under the lash of local public opinion—tries to figure out how to respond. Some cities, including Oakland, will forestall any attempts to forcibly evict campers; this will lead to endless lawsuits and further deterioration of our city. Of course, if Oakland were to change political direction and elect more moderate, rational mayors and councilmembers (not necessarily conservative Republicans), an end to encampments might be in our foreseeable future. As to where the evicted campers would go, the city could plausibly respond, “That’s not our problem. They just can’t stay where they are.” And that would be entirely Constitutional.
Steve Heimoff