Homeless? You're Under Arrest!


So sacred and inviolable is the home that no one may enter it lawfully for any purpose without the expressed consent of the home’s occupant – or a lawfully-obtained warrant based upon probable cause. Whether the home in question is a millionaire’s multi-million dollar mansion overlooking the sweeping valleys of the Rocky Mountains, or an impoverished farmworker’s hovel in southern Arizona, or something in between, the right of the owner to be safe and secure in his or her person and possessions in their place of residence is inviolate.
The trajectory of development for this idea goes back to Roman civil laws on privacy, from where the principle was incorporated into English common law. The doctrine of privacy and the right to be safe and secure in one’s own home was articulated by the English jurist Sir Edward Coke, who in 1604 ruled in a case that “the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose; … domus sua cuique est tutissimum refugium” (everyone’s house is his safest refuge). This is the origin of the aphorism, “every man’s home is his castle,” and it was enshrined in the Fourth Amendment of the U.S. Constitution which says in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”
In an article in the William & Mary Journal of Women and the Law, Seton Hall law professor Jonathan L. Hafetz thus rightfully observes that “the maxim that ‘a man's home is his castle’ has deep roots in the Anglo-American legal tradition. The home's privileged legal status traditionally derived from the sanctity of private property, and applied only to a person in his own home.”
We look to the seventeenth century not only for common law on the home as refuge. We also find there the political philosophy of John Locke who, perhaps more than anyone else, shaped the thinking of our country’s founders on the matter of the right to property. In the second of his Two Treatises of Government (1689), Locke developed the basis for the view that individuals have a right to property. He argued:
Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property (V, 27).
In addition to his or her own person, the individual has an unfettered right to ownership of the product of his or her own labor, whatever it may be, “for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others” (V, 27).
Locke’s two treatises are essentially a series of arguments advancing not only the sacrosanct rights of life, liberty, and property as God-given natural rights, but also a view of government, the purpose of which is to protect those God-given natural rights from infringement, especially if the individual cannot effectively protect them him or herself. Thus, the power of government, for Locke, “in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects” (XI, 135).
In ways that parallel Plato and Aristotle, Locke also wrote on the pursuit of happiness as the goal or end of human life. In An Essay Concerning Human Understanding, published immediately after his two treatises on government, he contended:
The necessity of pursuing true happiness [is] the foundation of liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty…. [W]e are, by the necessity of preferring and pursuing true happiness as our greatest good, obliged to suspend the satisfaction of our desires in particular cases (XXI, 52).
We have a basis, now, to construe the significance of three particularly cogent and influential documents that have shaped our own national and political history.
First, the eighteenth-century founders of this American republic were incensed by the tyranny and oppression of the English monarch and his government, and held it unconscionable that their freedom and property should be trifled with. In the wake of the Boston Tea Party in 1773 and the imposition of punishment in the form of yet more tyrannical laws, the colonial leaders convened in the First Continental Congress to register their deep displeasure at both King and Parliament. On October 14, 1774, the congress adopted a document, developed by committee, known as the Declaration and Resolves of the First Continental Congress, and began its declaration with the statement, “That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights.” First among the several enumerated rights is this: “That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.”
Second, we are all very familiar with statement in the Declaration of Independence, written by Thomas Jefferson: “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.” We ought not be confused or troubled by Jefferson’s substitution of “pursuit of happiness” for “property” in his draft in the Declaration; whether one or the other is and remains an “unalienable right is a misguided question. The fact is that, for both Jefferson and his seventeenth-century mentor, both property and the pursuit of happiness are inviolable rights.
Under the influence of Locke’s own political philosophy, Jefferson drew on the ancient Greek and Roman ethical tradition of eudaimonia, translated into English as well-being, flourishing, or happiness. Aristotle, for example, wrote in the Nicomachean Ethics that happiness was “doing well and living well,” by which he meant performing the right action and living in accordance with virtue: “virtuous actions must be in themselves pleasant. But they are also good and noble, and have each of these attributes in the highest degree, since the good man judges well about these attributes; his judgement is such as we have described. Happiness then is the best, noblest, and most pleasant thing in the world” (I, 8). Put differently, happiness is neither the result of wealth, honor, or pleasure, nor the means to some other end. Rather, happiness, as the good life and good action, is itself the end or goal or purpose of human life, and the pursuit of happiness consists in the daily decisions to enact habitually the noble virtues of courage, wisdom, moderation or self-restraint, and justice. This is doing good and being good.
And third, the apex to this trajectory toward establishing a government that secured these rights is the U.S. Constitution, the Preamble to which says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Note the verbs I’ve italicized. Our forebears established our government to do something, and that something was to establish, preserve, and extend freedom, security, and well-being for all.
All that has been said to this point prepares us now for a pivot. We have before us the historic legacy and philosophical logic of the unalienable right to life, liberty, property, and the pursuit of happiness, and the role of government in protecting those rights against alienation. What is most tragic, however, is the fact that these rights and the freedom to pursue happiness, evidently, are all contingent upon whether an individual is sheltered. While neither the Declaration of Independence nor the U.S. Constitution say anything about the condition of being homeless, they do address the requisite conditions under which it is possible for an individual to flourish: freedom, ownership of the one’s self and the fruit of one’s labor, and the pursuit of well-being. Neither the Declaration nor the Constitution stipulate that one must have a domicile in order to benefit from these conditions—they are, after all, unalienable rights—but apparently, having these rights and exercising them in a sustainable way requires having a place of residence. Absent a residence, these rights are indeed alienable.
Increasingly, state and local governments are passing ordinances and laws that deny the rights of those who are homeless. In particular, these governments are criminalizing necessary behaviors of anyone who does not have a permanent or “regular” home. In a report issued in 2016, the National Law Center on Homelessness and Poverty (NLCHP) points out that the standard approach by governments to the remediation of homelessness is the provision of shelters—roofs over the head, meals on the table, and beds to sleep in. But in practically every jurisdiction, there are far more homeless people than there are shelter spaces, so those who cannot or will not be sheltered must flounder in public spaces in their effort to survive.
The use of such public spaces is increasingly impeded by local ordinances and laws. The NLCHP studied 187 cities across the country, and found that between 2006 and 2016, 83% of those cities adopted policies that prohibit camping city-wide or in specific public places, 45% prohibit sleeping city-wide or in particular public places, 47% prohibit sitting and lying down in public, 86% prohibit loitering, loafing, and vagrancy city-wide or in particular public places, and 88% prohibit panhandling city-wide or in particular places.
These efforts to control the life-sustaining behavior of homeless persons do not really achieve anything constructive. They neither eliminate homelessness nor address its fundamental causes (a topic addressed in the previous post on this blog). Instead, criminalizing these behaviors raises the question of whether such efforts may violate the Constitutional rights of homeless persons. Lacking a conventional “home” does not mean a person surrenders his or her right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (Fourth Amendment), nor does it mitigate the right to free speech (First Amendment), the freedom from “excessive fines” and “cruel and unusual punishments” (Eighth Amendment), or the guarantee of “due process” and “equal protection of the law” (Fourteenth Amendment).
It is inconceivable that, as a function of government, criminalizing and punishing life-sustaining behaviors can secure fundamental God-given rights of life, liberty, property, and the pursuit of happiness, to say nothing of establishing justice. What exactly is the point of “arresting” a homeless person for the crime of, say, camping or sleeping in public, if they can’t pay the fine. Are they to be ticketed or worse yet, incarcerated, for their criminal disobedience? Is our criminal justice system the most appropriate and effective means used by civil governments to address this issue?
Not only does criminalization accomplish nothing in terms of eliminating homelessness, it actually ends up being a drain on otherwise limited public resources; it is a bold and brazen misuse of law enforcement. As the NLCHP notes in another report, “criminalization is the most expensive and least effective way of addressing homelessness.” And yet, local governments endeavor to control the visibility if not the facticity of homelessness by adopting laws against its public manifestation. The report goes on to state, “A growing body of research comparing the cost of homelessness (including the cost of criminalization) with the cost of providing housing to homeless people shows that housing is the most affordable option. With state and local budgets stretched to their limit, rational, cost-effective policies are needed – not ineffective measures that waste precious taxpayer dollars.”
As I wrote in my previous post, the causes of homelessness are many and varied, and the resolution to the circumstances that contribute to homelessness is and will continue to be complex and difficult. What is needed is not efforts to scatter and hide the homeless in our communities like cockroaches, but the exercise of those good and noble virtues articulated by the likes of Plato, Aristotle, Locke, Jefferson, and many others, namely courage, wisdom, self-restraint and most of all, justice. What is needed is more compassion and commitment, and less indifference and self-righteousness. We would be doing well and living well if our political and social will demonstrated tenacity in remedying this plight rather than continuing in a state of denial and detachment. We would do well to honor and respect the dignity and worth of those whose circumstances in life alienate them from themselves and the larger community of which they are inextricably a part. There is no reason we cannot solve this situation that dehumanizes everyone, homeless and homed alike.
If Aristotle is right to contend that the virtues, however we may enumerate them, are moral excellences whose embodiment exhibits doing and living well (i.e., the pursuit of happiness), then perhaps we ought to consider that advocating for those whose liberty, property, and happiness are constrained by homelessness and its causes is also a pursuit of happiness, a hunger and thirst for justice, a condition that Jesus marked as … blessed.

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