Homelessness and the Constitution

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The federal Constitution does not expressly address the condition of homelessness. Nor does it expressly create a right to housing, in contrast to the constitutions of France, Spain, Sweden, and Belgium.

Numerous commentators argue that there is also no implicit right to shelter or housing in the Constitution, relying on Lindsey v. Normet, a 1972 Supreme Court case. Lindsey, however, held that there is no right to adequate housing under the Constitution; it did not consider whether there is a right to some form of housing or shelter. Many would argue against recognizing such a right under our Constitution, which is generally considered to create "negative" rather than "positive" rights. Others, however, frame economic rights in "negative" terms, as President franklin d. rooselvelt did with his concept of "freedom from want."

Regardless of the resolution of this underlying issue, the Constitution still affects homelessness and homeless people. Particularly over the past two decades, courts have addressed the federal constitutional rights of homeless persons in several key areas.

Numerous courts have held that begging is speech protected by the first amendment. In Loper v. New York City Police Department (1993), the U.S. Court of Appeals for the Second Circuit noted that begging is generally "intertwined" with a social or political message indicating extreme poverty and the need for help. In contrast, in Young v. New York City Transit Authority (1990), the same court had held that begging in the subway could be prohibited. At least one scholar has argued that begging is commercial speech and thus due lesser constitutional protection. The weight of authority is that begging is political speech, and thus subject to the highest protection under our Constitution. Broad bans on peaceful begging in public spaces are likely to be unconstitutional; however, narrowly tailored, content-neutral limitations on time, place, and manner are generally upheld.

More recently, prohibitions on begging have more narrowly targeted "aggressive panhandling." Such laws may also raise First Amendment concerns if they are not sufficiently precise or neutral. Moreover, they may also raise concerns under the equal protection clause to the extent they target aggressive begging but not other forms of aggressive solicitation or speech.

Laws that criminalize sleeping or carrying out other "necessary life activities" in public places may also be unconstitutional as applied to homeless people. In Pottinger v. Miami (1992), a federal district court held that where there are insufficient shelter beds compared to the numbers of homeless people in a city, a law that makes it a crime to sleep—or to conduct other harmless, necessary life activities, such as eating or bathing—in any public area essentially punishes the involuntary "status" of homelessness and thus is cruel and unusual punishment in violation of the Eighth Amendment. Alternatively stated, such a law impermissibly punishes involuntary conduct. However, in Joyce v. City of San Francisco (1994), a federal district court reasoned that homelessness is not an immutable characteristic of the person and thus not properly a personal status in the Eighth Amendment sense. At least one commentator has argued that the constitutionality of such a law is fact-dependent: in the absence of sufficient indoor resources, there is no alternative to conducting necessary life activities in public and involuntary conduct—or status—is impermissibly punished.

Some courts have also upheld right to travel challenges to such laws, reasoning that they effectively preclude homeless persons from remaining in the city or state that applies them; others have rejected such challenges, holding that the right to travel is not implicated in the absence of differential treatment of residents and nonresidents. In Streetwatch v. National Railroad Passenger Corp. (1995), a federal district court in New York held that policies prohibiting the presence of homeless people in a quasi-public place—a transportation station—infringe their "fundamental freedom of movement" in violation of the due process clause. Furthermore, laws prohibiting loitering or vagrancy, which may be disproportionately enforced to "sweep" homeless people out of public areas, may be subject to constitutional challenge for vagueness.

Homeless people enjoy some right of privacy under the fourth amendment. Generally, shelters are akin to homes for Fourth Amendment purposes; they cannot be entered and subjected to warrantless searches. Similarly, homeless people's property, placed or wrapped in such a way as to suggest it is not abandoned, may be protected even if it is left in a public place. The criterion in these cases—as generally in Fourth Amendment analysis—is whether there is a reasonable expectation of privacy. As noted in the leading case on this issue, the Connecticut Supreme Court's State v. Mooney (1991), the circumstances of homeless persons must be taken into account in making this judgment.

Several courts have considered homeless persons' voting rights. In Pitts v. Black (1984), a federal district court held that under the equal protection clause, the lack of a traditional street address cannot be a basis for depriving a homeless person of his or her fundamental right to vote. As long as there is some identifiable location to which a homeless person regularly returns—be it a shelter, park bench, or street corner—that is sufficient to establish residency within a particular district for voting purposes.

Maria Foscarinis


Ades, Paul 1989 Comment: The Unconstitutionality of "AntiHomeless" Laws. California Law Review 77:595–628.

Avramov, Dragana 1996 The Invisible Hand of the Housing Market: A Study of the Effects of Changes in the Housing Market on Homelessness in the European Union. Brussels: FEANTSA (The European Federation of National Organizations Working with the Homeless).

Bennett, Susan D. 1995 "No Relief but on the Terms of Coming into the House"—Controlled Spaces, Invisible Disentitlements, and Homelessness in an Urban Shelter System. Yale Law Journal 104:2157–2212.

Ellickson, Robert C. 1996 Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning. Yale Law Journal 105:1165–1248.

Foscarinis, Maria 1996 Downward Spiral: Homelessness and Its Criminalization. Yale Law and Policy Review 14:1–63.

Garrett, Beth D. and Daniels, Wes 1993 Law and the Homeless: An Annotated Bibliography. Law Library Journal 85: 463–529.

Hershkoff, Helen and Cohen, Adam 1991 Begging to Differ: The First Amendment and the Right to Beg. Harvard Law Review 104:896–916.

National Law Center on Homelessness & Poverty 1999 Out of Sight—Out of Mind? A Report on Anti-Homeless Laws, Litigation and Alternatives in 50 U.S. Cities. Washington, D.C.: National Law Center on Homelessness & Poverty.

Roisman, Florence W. 1991 Establishing a Right to Housing. Clearinghouse Review 25:203–227.

Simon, Harry 1995 The Criminalization of Homelessness in Santa Ana, California: A Case Study. Clearinghouse Review 29:725–729.

Stoner, Madeleine R. 1995 The Civil Rights of Homeless People. New York: Aldine de Gruyter.

Waldron, Jeremy 1991 Homelessness and the Issue of Freedom. UCLA Law Review 39:295–324.