Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers . . . shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.

— Jacksonville, Florida, Ordinance Code §257

The word for which to cock an ear at the Supreme Court on Monday will be “vagrancy.” The Nine will be hearing arguments over whether cities have the right to rid their streets, sidewalks, and parks of homeless encampments, currently protected by various lower court rulings. The high court could take this chance to revisit its own precedents voiding anti-vagrancy laws, like the one above, that once helped keep safe and orderly America’s cities and towns. 

It would be none too soon, if you ask us. Vagrancy has spread in recent years to a shocking degree. It has destroyed the once most pleasant parts of important cities, from Portland, Oregon, to Portland, Maine. San Francisco is in a shocking state. Miami is so bad that Governor DeSantis just signed a law against homeless persons erecting tents. Solicitor General Prelogar tells the court that 600,000 persons are unhoused on any given night in America.

The vagrancy law quoted above obtained in Jacksonville until 1972. That’s when the Nine, in Papachristou v. City of Jacksonville, struck it down as being “void for vagueness” — with a jab at its “archaic language.” This was part of an era of judicial activism when the Court discovered all kinds of rights embedded in heretofore unsuspected corners of the Constitution. Within a year of Papachristou the court, in Roe v. Wade, fetched a right to abortion. 

The author of Papachristou was Justice William O. Douglas. He had previously authored the Nine’s opinion striking down a Connecticut law outlawing birth control. He cited in the Constitution what he called a “right of privacy.” This implied right, Douglas observed, stemmed from “specific guarantees in the Bill of Rights” that “have penumbras, formed by emanations from those guarantees that help give them life and substance.” 

Douglas applied similar reasoning against Jacksonville’s law, noting that the acts prohibited “are historically part of the amenities of life as we have known them,” even if not “mentioned in the Constitution or in the Bill of Rights.” These “unwritten amenities,” he said, gave “our people the feeling of independence and self-confidence, the feeling of creativity” and “encouraged lives of high spirits, rather than hushed, suffocating silence.”

Douglas even traced the behaviors barred by Jacksonville to poetry like Whitman’s “Song of the Open Road” and works by Thoreau. The justice’s romanticization of exploration overlooks the fact that vagrancy laws were enacted by elected lawmakers based on years of experience. Douglas instead saw vagrants as philosopher-poets. He fretted that Jacksonville’s law could ensnare “members of golf clubs” or “pillars of the community who have married rich wives.”

The voiding of vagrancy laws stripped from cities and towns the right — an amenity, one might say — to keep their streets free of disorder and squalor, ushering in an era of urban dysfunction in the 1970s. Around then, liberals began using the term “homeless,” Manhattan Institute scholar Stephen Eide has noted, to remove any stigma associated with vagrancy — and to gin up public funding for subsidized housing. The problem has only worsened.

Which brings us back to the Nine, who are asked to reverse a Ninth Circuit ruling allowing homeless camps to remain if cities lack shelter space. The opinion overlooks that most vagrants suffer from addiction and mental illness and, if offered treatment, mostly decline it. These are hardly “lives of high spirits.” No doubt there is a role for government in aiding them. Yet in what blasted penumbra do the justices find the power to make policy on vagrants?