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University of Miami Law Review

Abstract

In City of Grants Pass v. Johnson, the Supreme Court held that enforcing anti-public-camping ordinances against homeless individuals does not violate the Eighth Amendment’s prohibition on status crimes. While the Court foreclosed the Eighth Amendment as a vehicle for challenging such laws, it suggested that other constitutional protections may remain available. This Note takes up the Court’s invitation and argues that many anti-public-camping laws violate the Fourteenth Amendment’s substantive due process guarantees.

Drawing on historical sources from common-law England through the Founding and Reconstruction eras, this Note demonstrates that the right to acquire, own, control, use, enjoy, and protect private property is deeply rooted in the Nation’s history and tradition. That history establishes property ownership and control as a fundamental right protected by the Fourteenth Amendment’s Due Process Clause under the framework articulated by the Supreme Court in Dobbs v. Jackson Women’s Health Organization.

The Note then surveys anti-public-camping laws across several jurisdictions and shows that many define “camping” to include possessing, storing, or using of personal property in public spaces. Because individuals experiencing homelessness often lack private spaces in which to exercise their property rights, such laws effectively criminalize the ordinary possession and use of their belongings. When imposed without adequate justification or narrow tailoring, these anti-public-camping ordinances arbitrarily deprive homeless individuals of the legitimate use of their property and therefore exceed the bounds of the state’s police power.

By reframing anti-public-camping ordinances as substantive due process violations rather than Eighth Amendment status crimes, this Note offers a new constitutional framework for challenging anti-public-camping laws in the wake of Grants Pass v. Johnson.

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