Homelessness and Community Author(s): Jeremy Waldron Source: The University of Toronto Law Journal, Vol. 50, No. 4 (Autumn, 2000), pp. 371-406 Published by: University of Toronto Press Stable URL: http://www.jstor.org/stable/825960 . Accessed: 06/01/2014 13:51 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. University of Toronto Press is collaborating with JSTOR to digitize, preserve and extend access to The University of Toronto Law Journal. http://www.jstor.org This content downloaded from 130.63.180.147 on Mon, 6 Jan 2014 13:51:41 PM All use subject to JSTOR Terms and Conditions JeremyWaldron* HOMELESSNESS AND COMMUNITYt I Introduction I am not a communitarian,but I was prompted to ask questions about the relation between homelessness and communityby an encounter in Californiasome yearsago withan organizationcalled The AmericanAlli- ance forRights and Responsibilities(AARR). The AARRis an activistarm of The CommunitarianNetwork,' litigating to defend local and municipal initiativesthat promote what it regardsas increased safety,civility, and * Mauriceand Hilda FriedmanProfessor of Law and Directorof theCenter for Law and Philosophy,Columbia University. t This is a slightlymodified version of the Cecil A. WrightMemorial Lecture, deliveredat theUniversity of Toronto Law School in February2000. Earlier versions were presented, under the title Homelessness,Community and Denial, at a 1998 Con- ferenceon Homelessnessat GeorgiaState University in Atlantaand at a meetingof Columbia University'sFifteen Minute Paper Group. I am gratefulto all the participantson thoseoccasions - particularlyRobert Ellickson - fortheir comments and suggestions. 1 D.B. Kopel & C.C. Little,'Communitarians, Neorepublicans, and Guns:Assessing the Case For Firearms Prohibition'(1997) 56 Mar.L.Rev438 at 443: 'The CommunitarianNetwork has createdan activistarm to implementits ideas on a grassrootslevel: the American Alliance for Rights and Responsibilities.'The AARRis a non-profitpublic interestgroup founded in 1988 and describedby one of its leading litigatorsas aimingto 'restorethe spiritof communityin the United States....[Its] approachis to identify,promote and defendnew approaches which make citizenspart of the solution,and strikea balance betweenextreme rights claimsand thosewho would sacrifice civil liberties as meansto an end.' R.S.Golden, 'Towarda Model of CommunityRepresentation for Legal AssistanceLawyering: Examiningthe Role of Legal AssistanceAgencies in Drug-relatedEvictions from PublicHousing' (1988) 17 Yale L.& Pol'y Rev. 527 at 552n,quoting Affidavit of RogerConner in Supportof Motion To Modifyand Intervene,in Escalerav. NYCHA, 924 F. Supp. 1323 (S.D.N.Y.1996). In recentyears, the AARR has takenon a new name, 'The Centerfor the CommunityInterest'; see H.P. Fahringer,'Zoning Out Free Expression:An Analysis of NewYork City's Adult Zoning Resolution' (1998) 46 Buff.L.Rev.403 at 403n.The followingarticles by Robert Teir, leading counsel for AARR,provide a good accountof the organization'smission: 'Restoring Order in UrbanPublic Spaces' (1998) 2 Tex.Rev.L.& Pol. 255; 'MaintainingSafety and Civility in Public Spaces: A ConstitutionalApproach to AggressiveBegging' (1993) 54 Lou.L.Rev.285 [hereinafter'Maintaining Safety and Civility]. (2000), 50 UNIVERSITYOF TORONTO LAWJOURNAL This content downloaded from 130.63.180.147 on Mon, 6 Jan 2014 13:51:41 PM All use subject to JSTOR Terms and Conditions 372 UNIVERSITYOF TORONTO LAWJOURNAL communityresponsibility.2 The AARRfiled an amicus briefsupporting the Cityof San Francisco in some litigationbrought by homeless advocates against formerMayor FrankJordan's 'Matrix' program,3which was in- tended as a coordinated set of initiativesby police and social servicesto remove encampments of homeless people from the centre of San Francisco (particularlythe public places around the Civic Center).4 An ex-student of mine was involved in the litigation,representing the plaintiffs,and, since he had read an article on homelessnessthat I pub- lished in 1991,5he asked if I would be willingto file a response to the AARRbrief. Needless to say,the lawsuitwas unsuccessful;actually it was eventuallydeclared moot, the Cityof San Francisco having abandoned the program in question afterthe election of Mayor Willie Brown in 1995. But the issues that were raised in the exchange I had with the AmericanAlliance forRights and Responsibilitiesremained withme, and I want to talkabout some of those in thisessay. II Communitycontrol of public places The line taken by the AARRwas a familiarone, and it is one theyhave pursued in a number of cities in the United States.6Mayor Jordan's 2 Caseswith AARRintervention have included Asquithv. City ofBeaufort, 139 F.3d (1998), supportingSouth Carolina municipal noise ordinanceagainst challenge by street preachers;Johnson v. Rodriguez,110 F.3d 299 (1997), supportingconsideration by Texas paroleboards of letters from members of public against prisoner release; Doe v.Pataki, 120 F.3d 1263(1997), defending 'Megan's Law' requirementof registration ofsex offenders;Hutchins v. Districtof Columbia, 942 F.Supp.665 (1996), defending JuvenileCurfew Act; Herndonv. ChapelHill-Carrboro City Board ofEducation, 89 F.3d 174 (1996), defendingcompulsory public serviceprogram for high school students; Roulettev. Cityof Seattle, 78 F.3d 1425 (1996), supportingcity laws against obstruction ofsidewalk; Montana v. Egelhoff518 U.S. 37, 116 S.Ct. 2013 (1996), arguingagainst defendant'sright to introduceevidence of his voluntaryintoxication to establish diminishedresponsibility; Nunez v. Cityof San Diego,963 F.Supp. 912 (1995), supportingcurfew for under-eighteens;Johnson v. City ofDallas, 61 F.3d 442 (5thCir. 1995),supporting city laws against sleeping in public;Loperv. NYPD, 999 F.2d 699 (1993),supporting police action against panhandlers; and Michigan Department ofState Policev. Sitz,496 U.S. 444, 110 S.Ct. 2481 (1990), defendinghighway sobriety checkpoints. 3 Joycev. Cityof San Francisco,846 F. Supp. 843 (N.D. Calif.1994). 4 There is an excellentaccount of theSan FranciscoMatrix Program and thepublic responseto it in N. Wright,'Not in Anyone'sBackyard: Ending the "Contestof Nonresponsibility"and ImplementingLongterm Solutions to Homelessness'(1995) 2 GeoJ.on FightingPoverty 163 at 180-1. 5 J.Waldron, 'Homelessness and the Issue of Freedom' (1991) 39U.C.L.A. Law Rev. 295 [hereinafter'Homelessness']; reprinted in J. Waldron, Liberal Rights: Collected Papers 1981-1991(Cambridge: Cambridge University Press, 1993) [hereinafterLiberalRights]. 6 See especiallyRoulette v. Cityof Seattle, supra note 2, supportingcity laws against obstructionof sidewalk, and Johnsonv. City ofDallas, supra note 2, supporting city laws againstsleeping in public. This content downloaded from 130.63.180.147 on Mon, 6 Jan 2014 13:51:41 PM All use subject to JSTOR Terms and Conditions HOMELESSNESSAND COMMUNITY 373 Matrixprogram was an attempt,they said, to recoverthe public spaces of the city for the community.So long as homeless people remain en- camped in the city'sstreets, parks, and public squares, those places will be cluttered with tents, dirtysleeping bags, cardboard shelters, and stolen shopping carts and contaminated with urine, faeces, and drug paraphernalia. Such conditions,argued the AARR,make it verydifficult forordinary citizens, either individually or in families,to use those spaces in the way that theywere intended to be used. Panhandling, drinking, and variousforms of disturbedbehaviour exacerbate the problem, mak- ing the public urban environmentnot only unpleasant but hostile and potentiallydangerous. The result is that public places that used to be available to the whole communityare now 'becoming the preserve of those on the marginsof society.'7 The AARRargued thata communityhas a rightto controlbehaviour in its public spaces, and to outlaw activitiessuch as drinking,panhandling, sleeping on benches, washingin fountains,urinating and defecatingin public, and so on. The point of such restrictions,they said, is not to oppress the homeless or to diminishtheir liberty, but to reduce annoy- ance, to provide a fairbasis on which all citizens could make use of the public spaces of their city,and to allow parks and squares to become once again a healthy focus for the public life of the community.The AARRargued that communitiesbenefit from public spaces being kept sufficientlyattractive to act as public meetingplaces and as places where people voluntarilyspend their time.8The brief spoke eloquently of a time when citizensfrom all walksof lifecould spend theirleisure hours in public places, a time when parks and boulevards were places of 'interaction,integration, relaxation, and reflection.'9"And it urged the court to allow the cityto perseverein its effortsto restorethis communi- tarian mode of the use of its public spaces. It seemed to me importantto say,in response to these contentions, that although it is certainlytrue (as the AARRput it) that 'governments have the rightto regulate certain typesof conduct in public places, to ensure thatparks and sidewalksremain accessible and welcome