The constitutional right to destroy a city

On Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals threw out a Los Angeles city ordinance that banned sleeping on the sidewalks. The ordinance, the judges ruled by a vote of 2-1, violates the U.S. Constitution's 8th Amendment prohibition on cruel and unusual punishment.

The judges decided that it is cruel and unusual punishment to arrest people for sleeping on the sidewalks until the city of Los Angeles provides enough homeless shelters for the estimated 11,000 people who currently use downtown sidewalks as beds and bathrooms.

City Councilwoman Jan Perry, whose 9th District includes the area known as skid row, wrote a plaintive op-ed in today's Los Angeles Times pleading for understanding of L.A.'s plight. She demanded that other cities in Southern California step up and shoulder some of the burden for, in her words, "public drunks, drug users, homeless people and those suffering from mental illness."

What we have here is a perfect example of how the U.S. Supreme Court's "incorporation doctrine" has made it impossible for local governments to do anything except waste your money.

Unless you've read The 37th Amendment, it will probably come as a surprise to you that the Bill of Rights, including the 8th Amendment's prohibition on cruel and unusual punishment, was never intended to restrict the powers of state and local governments.

It was 1925 when the Supreme Court first suggested that some rights were so fundamental to the idea of due process of law that they ought to apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Gradually, the Supreme Court "incorporated" just about all of the rights in the Bill of Rights, and a few that they made up, like privacy, into the Fourteenth Amendment. The Court threw out state laws that infringed on "fundamental rights" unless the state could prove to the justices that the laws were necessary, narrowly tailored, and imposed for a "compelling" reason.

The fact that this is a completely subjective judgment can be seen in the divided vote to overrule the lower court and throw out L.A.'s sidewalk-sleeping ordinance.

The question is not whether the city ordinance is a good idea or a bad idea, but whether the decision properly belongs to the elected local government or to the unelected federal judiciary.

Before the Supreme Court invented the incorporation doctrine (without asking or receiving the approval of the people of the United States or their elected representatives), cities had the power to limit the use of the public sidewalks. There was no federal constitutional right to use the sidewalk to loiter, panhandle, assemble, preach, sleep, defecate or perform mime.

After the incorporation doctrine, everybody might have a right to do anything they want to do, and cities run the risk that they'll be saddled with federal lawsuits asserting those rights whenever they pass an ordinance prohibiting anything.

The logical conclusion of this reasoning can be seen, and smelled, on the streets of downtown Los Angeles.

The city government would like to protect the right of people to move freely from place to place without being harassed, so that businesses and customers and residents and visitors will stay in downtown Los Angeles and not flee the city. The elected officials of Los Angeles would like to exercise their constitutional power (it's in the Tenth Amendment) to decide what uses of the sidewalk are permissible.

Instead, the use of the sidewalks will be decided by people who have spun out of control, people who cannot make a responsible decision for themselves or others. Even worse, they're appointed for life.


Copyright 2006

Editor's note: You might be interested to read the earlier post, "The cat, the bag, and Justice Scalia," as well as the appendix to The 37th Amendment, "How the First Amendment Came to Protect Topless Dancing," which includes complete source notes and a bibliography.

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