The Negative Right to Shelter

70 Pages Posted: 19 Feb 2022

See all articles by Ben A. McJunkin

Ben A. McJunkin

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: February 14, 2022

Abstract

For over forty years, scholars and advocates have responded to the criminalization of homelessness by calling for a “right to shelter.” As traditionally conceived, the right to shelter is a positive right—an enforceable entitlement to have the government provide or fund a temporary shelter bed for every homeless individual. However, traditional right-to-shelter efforts have failed. Despite the continuing prominence of right-to-shelter rhetoric, only four U.S. jurisdictions have embraced such a right. Moreover, the shelter systems in these states are troublingly inadequate, mired in administrative bureaucracy and cabined by strict eligibility limits. The right-to-shelter movement has even proven pernicious. Centering a positive right to shelter in the discourse surrounding homelessness has rendered the weaknesses in shelter offerings invisible, and courts increasingly reify temporary emergency shelters as a justification for criminalizing unsheltered homelessness.

This Article proposes an alternative conception of the right to shelter as a negative right. It outlines a framework for recognizing a fundamental, constitutional right to shelter oneself without government interference. Self-sheltering activities, in this sense, would include everything from the simple use of blankets or bedding to the erection of temporary encampments in public spaces. It situates this new right within the traditions of constitutional due process jurisprudence premised on respecting human dignity. As the Article details, human dignity in the constitutional sense is understood both as ensuring a specific capacity for self-determination, particularly with respect to bodily autonomy and interpersonal relationships, and protecting against group-based subordination of disfavored classes. These interests are inescapably implicated by the decision to self-shelter while homeless. Recognizing a negative right to shelter is therefore an essential step to protect the dignity of homeless individuals while dismantling the plethora of criminal laws that currently plague them.

Keywords: criminal law, constitutional law, homelessness, substantive due process, right to shelter, urban camping, decriminalization, human dignity

Suggested Citation

McJunkin, Ben A., The Negative Right to Shelter (February 14, 2022). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4034878 or http://dx.doi.org/10.2139/ssrn.4034878

Ben A. McJunkin (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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