No Eighth Amendment obligation to house
Regarding Jones v. LA, about which I posted yesterday, I indulged in some fanciful con-law speculation:
For if rousting the homeless is cruel and unusual punishment (the majority’s basis for its ruling), is the court therefore obligated to conclude that leaving the homeless who “are not on the streets of Skid Row by informed choice” on the streets is itself a form of cruel and unusual punishment, and order the city to help them off those mean streets?
“You think there’s any constitutional argument, Bobby?”
Graciously responding to my emailed question, highly regarded (and very smart) UCLA Constitutional Law Professor and blogmeister Eugene Volokh politely slaps me down:
The answer to “must it [government] fund homeless shelters?” is clearly no. The Eighth Amendment is implicated when the government outlaws certain behavior. The government’s failure to help people (at least people who aren’t themselves locked up in prison by the government) can’t violate the Eighth Amendment.
That decisively settles the legal argument, but I stand by my moral and political one:
There is, in other words, no way out of the dilemma. If you conclude that homelessness is an involuntary condition, then you have no escaping the conclusion it’s up to you to help them.
I still think there will be very, very serious political consequences.
Where can an elected official take shelter?
