Sweeps Deny our right to Live

The Case made for our protection from these deadly sweeps under the 14th Amendment

By Jeremy Miller/Poor Peoples Law Clinic at POOR Magazine/Homefulness

The Supremacist Court’s recent decision to uphold the hateful will of those governing Grants Pass, Oregon in their systematic assault on homeless people has sent shockwaves through the nation as its impact is already being felt by people with inadequate or non-existent safe housing options currently residing in these United Capitalist Prison States of America.  Specifically what it has done is overturn a 2019 9th Circuit Court of Appeals ruling (Martin v. Boise) proscribing (en)forced removal (including people and belongings) without there being an adequate shelter alternative available.  This earlier decision grounded itself in an interpretation of the eighth amendment of the Constitution and its proscription of cruel and unusual punishment.  One of the key reasons why Grant’s Pass has been so impactful is that Martin v. Boise had become such a popular shield against the regular assaults on dignity and humanity conducted by various law-enforcement agencies and their private sector collaborators against unhoused folks in the western part of the settler colony. 

To be clear this was a shot across the bow from the rarefied heights of the judiciary all but declaring war on homeless people.  Also, relying on plain meaning of language (which is precisely what the Supremacist Court was supposed to do,) only someone who has never experienced homelessness or had intimate emotional relations (such as familial) with someone who has could possibly challenge the characterization of current anti-homeless ordinances/laws as being cruel.  We will set aside the unusual aspect for the moment because it seems that regularity of oppression is a weak argument for justifying let alone enshrining atrocity in law.

Fortunately, despite all the hand-wringing and jeremiads, not to mention the triumphalist poor-bashing laps being taken by such “liberal” oppressors as California Governor Gavin Newsom or San Francisco Mayor London Breed, the legality of homeless sweeps, property confiscations, camping bans, and unnecessary incarceration for “quality of life” crimes is not dependent on an affirmative definition as either cruel or unusual.  There is an older and deeper constitutional provision which, if applied, would make all of these anti-homeless laws, ordinances, and tactics extremely difficult to legally defend.

The Original Right to Life

More than thirteen years before the Bill of Rights was composed (encompassing the first ten ratified amendments to the Constitution) the Declaration of Independence was written by Thomas Jefferson.  Its preamble includes some of the most notorious of lofty (and largely unrealized) political sentiment in the entire history of the nation’s political philosophy and letters.  Most “Americans” know the words by heart even if due to a dearth of civics education they cannot place where they are recorded.  

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Now of course we could allow ourselves to be derailed here by a digression into which men were actually envisioned by the slave-holding Jefferson, what the implications were for women’s enfranchisement etc. but, while politically suggestive especially from a liberationist frame, this elides a key point.  All modern legal interpretations ascribe a race/sex/gender universality to the language.  The emphasis on the legal is critical here.  Despite the fact that most people think of this language as merely late eighteenth century ideological pontification, a large chunk of it has been introduced into positive law.  The vehicle for this is the first section of the fourteenth amendment to the Constitution, rendered shorthand as the “Incorporation Doctrine.”  In relevant part it states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis author’s own.]

While the right to “the pursuit of Happiness” is displaced by the more vulgar right to property, significantly the right to life is maintained and theoretically possessed by “any person.”  The incorporation doctrine effectively was an answer to the question of “states’ rights” or its constitutional corollary in the tenth amendment to the Constitution.  The tenth amendment was a concessionary measure (or to some a balancing measure) for those desiring a state level counterpoint to emerging federal power.  It states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This effectively was the ultimate argument in Grants Pass v. Johnson.  Justice Neil Gorsuch concludes the majority decision saying:

The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.

It is precisely this type of abdication of responsibility that the incorporation doctrine was meant to preclude.  Specifically, by articulating a right to life in the Constitution it denies the right to the states to create any law, ordinance, or engage in any act(s) that deprive people of life save within the narrow parameters of something like death penalty jurisprudence.  In fact, spending a moment on the current Supremacist Court’s greatest hits, when dealing with abortion the only reason why the anti-abortion “right to life” could not be more successfully countered by the original right to life (with emphasis on the life of the mother) is because of the strange hermeneutics of competing claims as to when a fetus is endowed with this special attribute of life.

This legal interpretation of the right to life is also codified in international law.  In 1966 the United Nations adopted the International Covenant on Civil and Political Rights.  This entered into force (making it obligatory for states parties) a decade later in 1976.  Significantly for our purposes it was ratified by Congress in 1992 with certain “reservations, understandings, and declarations.”  The RUDs are effectively amendments or provisos stipulating that a country will ratify the treaty making it positive national law so long as this, that, or the other interpretation or clause remain non-binding in particular domains or do not threaten jealously protected national interests or prerogatives.  As a relevant example, Article 6, section 2 of the ICCPR sets out what to some may be construed as stringent requirements circumscribing the use of the death penalty as punishment for crimes.  The United Capitalist Prison States of America did not want any supranational body to be able to dictate under what conditions it could sentence people to execution and thus entered a reservation to the limitation concerning the circumstances in which capital punishment is imposed.

This same article of the ICCPR (Article 6) is relevant for our argument here.  Specifically Article 6, section 1 reads:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

This right was further clarified in 2019 by the UN Human Rights Committee, the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by states parties.

In General Comment 36, Section 3, Paragraph 26 it asserts in relevant part:

The measures called for to address adequate conditions for protecting the right to life include, where necessary, measures designed to ensure access without delay by individuals to essential goods and services such as food, water, shelter, health care, electricity and sanitation, and other measures designed to promote and facilitate adequate general conditions, such as the bolstering of effective emergency health services, emergency response operations (including firefighters, ambulance services and police forces) and social housing programmes. [Emphasis author’s own.]

Since none of the RUDs have any language that contradicts this definition of the responsibilities states parties have vis-à-vis the ICCPR, the nation is enjoined in upholding them.  This should carry additional weight since unlike most other international instruments, the ICCPR has actually been ratified by Congress and signed into law by President George H.W. Bush hence theoretically depriving the country of an ability to hide behind national jurisdiction arguments to dodge international obligations.

 Contradiction Between Local Ordinances and Federal Law

It is no secret that there have always been battles between federal and state or local authorities surrounding policy.  From the Civil War up through to current battles surrounding energy regulation (Sen. Joe Manchin vs. President Joe Biden,) or how evil one can legally be to immigrants (Gov. Greg Abbott vs. President Joe Biden,) major life altering issues have been adjudicated in formal settings like the Supremacist Court or informal settings like the street.  And while it would be a pipe-dream to expect this strife to completely disappear, from a legal standpoint there is a pecking order that can at least doctrinally be relied on to determine which view prevails.  This is known as the Supremacy Clause.  Article VI, Clause 2 of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Thus the Supremacy Clause on its face clearly establishes that in conflict of disposition the Constitution, and all treaties made carry the day.  They cannot be overturned by petty despots such as London Breed, Eric Adams, Gavin Newsom, or the City Council of Grants Pass Oregon.

Why Do We Bother with the Man’s Law?

The question regarding how we treat the poorest among us is ultimately an ethical question and no written compact ought to be necessary to compel our compassion and camaraderie.  But unfortunately the logics of capitalism have been so deeply ingrained in many people as to make this thought process not necessarily a foregone conclusion.  Thus we see rampant cruelty in local policies around the nation enforced to maintain order, which for some appears to be a more precious value than humanity.  Due to this we can not necessarily rely on ethical or moral appeals to prevent attacks on homeless people.  This is specifically why Martin v. Boise was so significant for homeless folks.  It not only named their oppression, but provided the law as an imperfect shield against its enforcement.  People have not changed so much in the intervening years.  The moral fight will continue ad nauseum.  But, especially in light of grotesque escalations of anti-homeless abuse by municipal and state actors, since the Grant’s Pass decision broke the Martin shield a new one must be hoisted.  Gratefully it already exists.  On the fourfold legal foundation of the Declaration of Independence, the Fourteenth Amendment to the Constitution, the ICCPR, and the Supremacy Clause all people, including homeless people, have a right to life that is clearly being abrogated by current policies.  The sweeps are not only unethical, but illegal.  So to hell with Martin!  It was good while it lasted.  We don’t have time to mourn it.  The law is still squarely on the side of humble people fighting to live.  We just have to remind the oppressors of this every damn time!