Homelessness and the Missing Constitutional Dimension of Fraternity

Abstract

This Article seeks to deepen our understanding of the lack of constitutional protection against long-term involuntary homelessness. There are a number of powerful moral justifications for constitutionally addressing homelessness, but the lack of any constitutional response continues. It has been observed often that the Constitution emboides mainly negative, as opposed to positive, rights, or rights prohibiting government interference rather than rights requiring some costly government provision. But underlying this kind of explanation is the fact that our constitutional focus on rights, and on liberty and equality in particular, is actually part of the problem. Homelessness is certainly linked in various ways to lack of liberty and equality, but as the Article argues, liberty and equality carefully understood are not central to the most crucial dimensions of homelessness. Homelessness is actually more precisely a problem of lack of fraternity, or solidarity, than of liberty or equality. Our Constitution, however, follows the French Revolution slogan in emphasizing liberty and equality, but not fraternity, to the detriment of the homeless. The Article tracks the welcome but inevitably inadequate litigation on behalf of the homeless in the absence of constitutional fraternity, and considers finally some problems of implementation that are in principle resolvable in the presence of genuine fraternity.

Keywords: homelessness, constitutional, liberty, fraternity, equality