The U.S. Department of Justice recently argued before an Idaho federal court that a law prohibiting sleeping on the streets violates the Eighth Amendment prohibition against cruel and unusual punishment.
The Justice Department’s expressed reasoning: “Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place.” Hence, “If a person literally has nowhere to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”
Let’s take that reasoning to its logical extension: Another life-sustaining activity is that human beings must get rid of waste, whether by urination or defecation. Would our Justice Department also pontificate that enforcing laws against such natural human activity on city streets is unconstitutional because these laws most directly affect the homeless, who have no readily available bathroom to use?
And what about laws against fornication in public? That, too, is a natural and much-desired activity for most human beings who have reached puberty. Shall that activity also be allowed in public because a homeless couple has no home in which to make love? This is no improbable hypothetical; MSNBC pictured a husband, wife and their 18-month-old son living under the 16th Street bridge in Boise.