Progressives Think Government Can Regulate Only Private, Not Public, Places

The Supreme Court case City of Grants Pass v. Johnson was about whether bans on camping on public property violate the Eighth Amendment’s prohibition on cruel and unusual punishment. They obviously do not, and the Court said so. But the vote was 6–3, with Justice Sonia Sotomayor writing the dissent with which Justices Elena Kagan and Ketanji Brown Jackson agreed.

The dissent makes clear the emerging progressive view: Government can regulate only private, not public, spaces.

This is basically the opposite view that common sense would suggest. One of the fundamental reasons government exists is to provide public works, which entails the regulation of the spaces in which they exist. The maintenance of public order, too, is a fundamental purpose of government that requires regulation of public spaces.

Private spaces, on the other hand, should have little to no government involvement. What happens on your own property should, for the most part, be your own business. There are exceptions, of course. You can’t hold slaves or abuse children or plot crimes. But you should be able to build basically whatever you want, buy basically whatever products you want, and set whatever rules you want on your own property and for your own family.

Progressives have essentially inverted that order of things. Public spaces are the domain of individual rights where nobody can tell anyone else what to do. But there is hardly any limit to what progressives believe government should be able to regulate in private spaces.

The opinion of the Court in City of Grants Pass, from Justice Neil Gorsuch, goes through the Eighth Amendment jurisprudence and explains why it doesn’t prohibit bans on public encampments. The only reason the Court had to rule on this is that the frequently overturned Ninth Circuit said the Eighth Amendment does prohibit such bans.

Gorsuch wrote:

Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.

Gorsuch is a judge, not a social worker. He exhorts charities and voluntary associations to take care of the homeless, along with encouraging citizens to elect government officials to enact policies to alleviate homelessness. The Constitution doesn’t say how that should be accomplished.

After this calm legal reasoning, Sotomayor’s dissent begins: “Sleep is a biological necessity, not a crime.” Of course, nobody ever said sleep is a crime. Camping on public land is a crime. But Sotomayor’s dissent is progressive activism, not legal reasoning.

“The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused,” Sotomayor wrote. Ordinances against public encampment “criminalize being homeless,” and criminalizing a state of being is cruel and unusual punishment, she said.

Justice Sotomayor can read a right to sleep outside into the Eighth Amendment, but as she demonstrated yesterday in her dissent in SEC v. Jarkesy, she can’t see a right to trial by jury in civil cases in the Seventh Amendment. Progressive jurisprudence is a mess.

So is the larger progressive ideology. Because progressives are perfectly fine with government telling you which appliances you’re allowed to put in your own home, which cars you are allowed to buy, what your health insurance is required to cover, and which school your children are allowed to attend. If a business wants to build something on its own property, progressives demand environmental-impact statements and launch litigation efforts that take years to complete. Terms of private employment should be decided by government and by labor unions, not by employer and employee. Corporate mergers should be decided by government, not by the shareholders who own the companies. And the information you choose to consume should be screened to make sure it’s not “misinformation,” as defined by progressives.

But yeah, by all means, camp on public property — that is an individual right. Let the relatively small number of criminals who are responsible for most violent crime out on bail and just keep catching and releasing them as they commit more crimes in public. Enforcing traffic laws on public roads is racist. Let anyone cross the border and receive public money and accommodations. Run public-transportation facilities as union jobs programs rather than providing top-quality transportation services to the public. Public school teachers should have autonomy to teach what they want, with no input from the state legislature.

Lawless public spaces and micromanaged private spaces — that’s the progressive vision of governance.