Grants Pass and the Vagrancy Revolution Revisited 

Abstract

In City of Grants Pass v. Johnson, the Supreme Court reversed the Ninth Circuit’s holding that the Eighth Amendment prevents governments from criminalizing sleeping in public places or in cars when there is otherwise no other place to go. The decision, addressing what the Court viewed as a recent “crisis” of homelessness predominantly in Western states but elsewhere too, turned on whether the act of sleeping in public is co-extensive with the status of being homeless, as crimes of status are generally forbidden by the Eighth Amendment’s constitutional prohibition against cruel and unusual punishments. But this doctrinal framing of the case, which the majority and dissent both accepted, is far too narrow. By treating homelessness as a new and particularly acute problem, the Court ignores the fact that large numbers of mobile, unhoused poor people is not a temporary problem but a structural one, endemic to American society at least since the industrial revolution; that, throughout history, the police have been authorized to manage, corral, and discipline the “vagrant” as a means of social control; and that vagrancy and other status laws were the common thread that united the social movements of the 1960s and 70s, which sought to limit the discretionary power of the police to stop, arrest, or move people along simply for being out of place in some way. The question of the status of the vagrant was key to post-war American constitutional rights, but the Court treats homelessness as a local policy problem, detached from the wider constitutional canon and from the social facts that simultaneously create the conditions for homelessness and foster its criminal regulation. Grants Pass is an act of erasure, obscuring the unhoused poor as a consistent feature of U.S. society and the constitutional law that long allowed and then prevented their criminalization. 

Keywords: vagrancy, homelessness, Eighth Amendment, constitutional history, urban policy, cities