Some perceive a housing crisis in America. The Supreme Court recently took up a challenge in which some seek to preclude towns or other localities from banning camping on public property. There is a population that believes people should be able to do as they wish, where they wish, and when they wish. From that perspective, the belief is either society provides these people with accommodations or they should be free to camp when and where they choose. Some places have digital maps to help pedestrians avoid the feces on the sidewalks instead of punishing those who do the defecating. Purpose (October 2023).
An Oregon city reportedly made "it illegal to sleep outdoors in public spaces." When the city enforced that (there was an effect on someone, not merely words), some of those who were punished sought review of the ordinance alleging that it "violate(s) the Eighth Amendment’s ban on cruel and unusual punishment." The argument is seemingly that putting people in jail for breaking the law is cruel and unusual. Or, that criminalizing the unfettered use of public space is cruel and unusual.
Justice Kagan elaborated and suggested that sleeping and breathing are similar. She says that the unhoused (she called them by the pejorative "homeless") have "no place to go." For them, she suggested, "sleeping in public is kind of like breathing in public.” So, is defecating in public like breathing in public? Is exposing oneself in public like breathing in public? What human function is not like breathing?
According to The New Republic, the U.S. Supreme Court seemed reluctant to prevent the operation of the Oregon ordinance. It seems, to some observers, that the Court will not conclude people have unfettered rights to do as they wish, where they wish, when they wish. However, there are those who fear that any acquiescence to any punishment of the unhoused, by the Court, is essentially to "green-light laws that effectively criminalize homelessness" (The New Republic used the pejorative "homeless").
This is interesting because it illustrates a constitutional conflict that is challenging on several levels. In a recent post, I suggested that no constitutional right is absolute. In Conflicting Rights (April 2024), I suggested that there is a persistent friction between the rights of various persons. You are free to have the Roling Stones play for your backyard party, despite it disturbing your neighbors; but, if the music goes on until 02:00, there is a sound argument that the needs/rights of the neighbors may overtake your needs/rights to hear your band.
And that is with the Stones. Imagine instead that it is Miley Cyrus performing in your neighbor's yard. She, after all, comes in like a "wrecking ball." Or worse, Billy Ray Cyrus and his Achy, Breaky, Heart. The horror!
The unhoused debate is perhaps similar in that the rights of some may abut the rights of others. Do those whose daily labors and taxes support a community have a right to live and work unaccosted in the public areas of their communities? Or, do the rights of the unhoused somehow trump their rights? Is this a ban on the unhoused, or a ban for all people? Under Justice Kagan's analysis, perhaps any of us should be free to do as and when we wish? Time will tell how the Court interprets the appropriate outcome of the friction.
Housing is expensive. Forbes notes that "the U.S. median home price was $412,000 in September 2023." That is a significant amount of money. According to the National Association of Home Builders, the average American home has 2 bathrooms. If one ignores the kitchen, bedrooms, and more, that comes out to about $206,000 per bathroom.
This introduces another issue with the unhoused and a news story from San Franciso (you remember, where feces is on the sidewalks). USA Today reports that city has just opened a public bathroom (no bedrooms, kitchen, etc., just a bathroom). Remember when you could get a "solid gold toilet" for a mere $6 million. Those were the days. Well, the officials in charge of the Noe Valley Town Square recently went to work on a toilet which initially was estimated to cost "$1.7 million with a two-year timeline."
Some are convinced that would be quite a toilet. In the end, the city did not pay that. It received a donation that saved it
"$115,500 on construction, $91,800 in project management fees and $90,000 in architecture and engineering fees"
Yes, you read that right, $90,000 in architectural fees for the toilet. According to Career Explorer, the average annual salary for an architect is about $80,000 and Glass Door says for an engineer it is about $86,000 to $156,000. That is for a year. of work The $90,000 above is for a toilet. Talent.com says a construction manager's salary for a year is about $65,000. Does it take a year to build a toilet? How much is really involved in designing a toilet? Have there been any toilets previously designed that we might just copy?
In the end, the city managed to install a single toilet, with drinking fountain on the outside, for about $200,000. The savings were not accomplished through decreased efforts or material, but through donations of materials. But for the donations, it is likely still about a $1.7 million toilet. The cost of things is beyond preposterous. A single toilet for half the price of the median American home? No one is apparently surprised.
I previously wrote about a contest to design a new garbage can. These are the Good Old Days (December 2022). That noted a city (coincidently San Francisco again) holding a contest for what would replace its 3,000 street-side garbage cans. The city spent more ($500,000) on that contest than it spent on the recent toilet. It could have had 2.5 toilets, at a ridiculous price, instead of a trashcan contest. One of the entrants in the can contest was a unit that cost $20,000 each. Imagine the hubris that comes with a refuse container at that price.
The contest concluded with a decision to buy the "Slim Siloutte," a unit that cost less than $19,000 to prototype. The good news is that with mass production, these can be built and delivered for only $3,000 each. According to Mission Local, there was an alternative that cost "only" $630 per unit. Apparently, the city has picked the $9 million alternative ($3,000 x 3,000)(that is equal to 6 public toilets at $1.7 million or 45 toilets at the still ridiculous price of $200,000 each). But, the can replacement may be on hold because of "fiscal constraints."
Comedians have apparently been critical of the new San Francisco toilet. Is there any feeling of fiscal constraint in the marketplace? How many unhoused might have a charitable bed for $20,000? $200,000? Or, how much might taxes be reduced on the rest of society if less were spent on folly and failure?
The USDA estimates you can feed a person for a day for about $4.00. San Francisco estimates it has about 7,754 experiencing unhousedness. So, perhaps alternative uses of the folly money would be to feed those people, for this many days:
$20,000 can cost = .6 days
$500,000 can contest = 16 days
$1.7 million toilet = 55 days
$9 million replacing waste cans = 290 days
Or, the city could pay someone to scrape the feces off of its sidewalks? Or, it could enforce the law and stop people from defecating on the sidewalks. Or, is it cruel and unusual to punish people for defecating in public?
A challenge may be that those who have money tend to find ways to spend it. Google "city lowers taxes" and see how many news stories pop up. There will be a few stories about decreases in state taxes in the wake of the SARS-CoV-2 pandemic. But, for whatever reason, there are no stories about municipalities lowering taxes. Google "municipalities spending on ridiculous things" and for some reason, there are multiple examples. In fairness, that query returns local, state, and federal folly and absurdity.
The idea that banning camps of the unhoused, is cruel and unusual is at best anachronistic. See Conflicting Rights (April 2023). Where Justice Kagan gets off the path is not in her contention that sleeping is as fundamental as breathing. The departure from reality is that anyone has any fundamental right to do anything particular in the public domain. There is nothing untoward about building a public restroom, but overpaying for it is senseless.
Rights Collide (February 2016) in society. That you have a fundamental right to sleep or to breathe does not mean it persists everywhere at every time. I suspect that Justice Kagan would not agree that the unhoused have a fundamental right to do either in her living room or even her front yard. If she believes that they do have such rights, and those people, in fact, do stay with her family, Google has produced no evidence of such accommodation.
Urinating is a lot like breathing, but we still restrict where people may or may not do so.
Procreation is a lot like breathing, but we still restrict where people may or may not do so.
Defecating is a lot like breathing, but many of us still restrict where people may or may not do so (the City by the Bay proves Jung's hypothesis of rules).
When people are constrained in their activities, fined, or jailed for violating society's laws, is it "cruel and unusual" because their activities are fundamental? May we dictate where people go, exclude them from certain buildings, or constrain their activities there? Is speaking your mind a lot like breathing? As Justice Kagan suggests, is the fundamental test whether one's activity is "like breathing?" Perhaps, or maybe that is an oversimplification?
Why are the rights of some exalted at the expense of others? Who is to make such decisions? Will it be the same people who see no excess in the $1.7 million toilet or the $20,000 (or even $3,000) garbage can?
