According to the 2020 census, Massachusetts had a population of 7,029,917 people, making it the 15th largest state by population. But in terms of geographical size, it is the seventh smallest. The densely populated Bay State, containing the major economic hub of Boston, continues to be an attractive destination for immigrants.
In fact, Massachusetts is one of the most diverse states in New England. According to the Census Bureau’s Diversity Index, Massachusetts trails only Connecticut in its diversity rating. The Diversity Index is a measure determining the likelihood of choosing from a random population group, and selecting individuals from different racial or ethnic backgrounds. It ranges from 0 to 100 percent, 0 being completely racially homogenous, and 100 being everyone belonging to a distinct ethnic group. The 2020 census determined that the DI of the United States was 61.1 percent. Massachusetts fell below this national average with a DI of 51.6 percent, ranking 26th out of the 50 states plus Washington D.C. However, it is important to recognize that the Bay State has diversified significantly since 2010, increasing its index by over 10 percentage points.
The population of Massachusetts in 2023 was majority white (72.7 percent), followed by Hispanic and Latino (11.6 percent), black and African Americans (8.2 percent), and the smallest percentage being Asian (7.6 percent). Now that there is an understanding of the racial composition of Massachusetts, let’s look at how unemployment has different effects on these groups.
According to Pioneer Institute’s LaborAnalytics, the unemployment rate in Massachusetts in 2023 for white individuals in the labor force, who make up 65 percent of all unemployed individuals, was 3.1 percent. For black or African Americans, the unemployment rate was 5.3 percent, and those individuals accounted for 12.6 percent of the unemployed population. For Hispanics or Latinos the UE rate was 4.6 percent, making up 14.7 percent of the unemployed population. Lastly, for Asians it was 3.5 percent and 7.7 percent of the total unemployed population. This demonstrates that minority populations are disproportionately more likely to be unemployed compared to their white counterparts in Massachusetts.
The difference may partially be explained by historical disadvantages for minorities in the labor force. Racial and ethnic minority groups, specifically blacks and African Americans and Hispanics and Latinos in Massachusetts face larger obstacles in terms of employment opportunities. These groups face higher unemployment rates than whites, and comprise a larger portion of the unemployed population in comparison to their composition of the entire civilian labor force of Massachusetts. The state has, and continues to, implement strategies to close the racial/ethnic unemployment gap, but it is clear that more needs to be done to completely solve this pressing issue.
Dana DiChiro is a Roger Perry Government Transparency Intern at the Pioneer Institute for Summer 2024. She is a rising senior studying Government & Politics and Economics at the University of Maryland, College Park.
Click here to read a transcript
[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi.
[00:00:09] Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. As tent cities filled with homeless people have spread across urban communities in recent years, elected leaders have often passed the buck, claiming their hands were tied by a 9th U. S. Circuit Court of Appeals ruling which deemed prohibitions on homeless encampments as cruel and unusual punishment.
[00:00:28] This reluctance to enforce public encampment laws has forced communities to accommodate street homelessness. and the related issues of retail theft, human waste on sidewalks, sexual violence, and overdose deaths. But in the recently decided Supreme Court case, City of Grants Pass v. Johnson, Justice Neil Gorsuch’s majority opinion made it clear that ordinances that levied fines for public camping were not enough.
[00:00:50] Wouldn’t strike most Americans as cruel, but a three justice minority disagreed, asserting that the decision to impose fines and potential jail time for those sleeping in public places effectively criminalizes the status of being homeless, thus prosecuting Americans for who they are rather than what they have done.
[00:01:08] How has the divided view of homelessness in our courts played a role in the rise of public encampments? And what effect is the Grants Pass decision likely to have? on Public Policy Makers Going Forward. My guest today is Manhattan Institute Senior Fellow and author of Homelessness in America, the History and Tragedy of an Intractable Social Problem, Dr.
[00:01:28] Stephen Eide. Dr. Eide has written extensively on the challenges of homelessness, including those imposed on municipal leadership by federal courts. He will share with us the current trajectory of homelessness in the U. S. and explain how the recent Supreme Court decision to permit local enforcement against public encampments will affect the homelessness.
[00:01:47] and our communities at large. When I return, I’ll be joined by Manhattan Institute’s Senior Fellow, Dr. Stephen Eide.
[00:02:04] Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by Senior Fellow at the Manhattan Institute, Dr. Stephen Eide. Welcome back to Hubwonk, Stephen.
[00:02:14] Stephen Eide: Thanks so much for having me, Joe.
[00:02:16] Joe Selvaggi: Great. Well, the last time you were here, I just looked it up. It was just about exactly two years ago, and we were talking about the observations you made in your recently, then recently released book entitled Homelessness in America, the History and Tragedy of an Intractable Social Program.
[00:02:31] I learned a lot in our conversation about the causes and potential solutions for homelessness, but today we’re going to talk about a recent Supreme Court ruling. A decision Grants Pass v. Johnson, but before we dive into the issues of that case and its relationship to homelessness policy, let’s just retouch on the homelessness issue now two years later. What is the landscape of homelessness in the United States as you see it right now?
[00:02:55] Stephen Eide: Well, I think we’ve pushed out of the COVID era, which created lots of complications and homelessness in so many areas of American life. We’re beginning to reconcile ourselves to the idea that homelessness in the 2020s is probably at least as challenging as it was in 2010s.
[00:03:13] Um, so normalcy, if you will, has er Arrived, but that’s a grim prospect, the numbers are up, and so we’re trying to decide are we going to be re litigating the old debates that left us kind of stonewalled, or is there possibility for some breakthroughs here and there?
[00:03:29] Joe Selvaggi: Well, indeed, I think we may have had a breakthrough last week with a Supreme Court decision, we’re going to be talking about that decision, called Grants Pass v. Johnson, and it really relates to a town, a small town in Southern California. Oregon or Washington?
[00:03:43] Stephen Eide: Southwestern Oregon.
[00:03:43] Joe Selvaggi: Yeah. And which they were dealing with homelessness. If you will, again, I’m not presenting you as a constitutional scholar, but rather one who I’m sure followed this case very carefully. What would be, in broad strokes, what are the details of the case?
[00:03:56] Stephen Eide: Yes, well, Grants Pass is this little city that had in its code, you know, its ordinances, on the books, laws prohibiting camping in public, basically, and those laws were struck down by the Ninth Circuit Court of Appeals, which has jurisdiction over the nine western states, and their argument was that those laws violated the Eighth Amendment’s Prohibition on Cruel and Unusual Punishments, that is, The 9th Circuit ruled that it was illegal for Grants Pass or any other municipality in that jurisdiction to ban camping in public if it’s not providing some other alternative to sleeping in public. That amounted to criminal, unusual, and punishment, and as a result, in the wake of that ruling, and really in the wake of prior similar rulings, municipalities really felt kind of paralyzed as to what it could do to address this big problem of street homelessness out West.
[00:04:43] Joe Selvaggi: Indeed, so we have the courts hamstringing the, uh, the municipality’s ability to deal with homelessness based on the fact that one is homeless and to give them a fine or lock them up is cruel and unusual. As you mentioned, it first faced a federal district court and then to the Ninth Circuit Court of Appeals, so it was a big case. I don’t want to put words in your mouth, but did this victory, at least at that level, at the lower courts, effectively establish a right to sleep in public?
[00:05:07] Stephen Eide: Well, that was certainly what many localities said.
[00:05:11] One thing that was striking about this case is how many governments filed amicus briefs with the court, urging them to take up the case, and after it took up the case, claiming that this was just unworkable. Officially, the 9th Circuit said, well, if you provide adequate shelter, you can still enforce the laws.
[00:05:28] All these governments, and I stress this is the West Coast, so these are Democrats, right? So, Governor Gavin Newsom, the mayors of Los Angeles, San Francisco, we’re all saying we cannot respond to our constituents demand that we address homelessness under this legal regime that the Ninth Circuit has put in place.
[00:05:45] In practice, that’s what they were saying. We are paralyzed. You seem to be saying that people just have a right to sleep in public wherever they want. We’ve invested, you know, hundreds of millions of dollars, billions in homeless services. You’re effectively saying that’s not enough. What would be enough? Are we just supposed to go bankrupt on the way to providing enough shelter and housing for people so we can enforce our laws? In practice, yes, that was the result, and that’s why the Supreme Court ultimately just had to get involved here.
[00:06:11] Joe Selvaggi: All right, but let’s dwell on the past and say, okay, we arrived here at an inflection point, but to get here, what is it about the notion of the Eighth Amendment prohibition against cruel and unusual punishment? What precedent was it that set this idea that the court to essentially fine someone for being homeless, while being homeless, for the act of being homeless? Why is that cruel and unusual? What is it about that?
[00:06:36] Stephen Eide: Yeah, well, there were these cases early in the 60s, Robinson v. California, which is the important one, that pertain to a law that California had on the books about prohibiting being addiction. It’s illegal to be addicted to drugs. And the court, that time, said, you can’t do that. That is a status, and you can’t criminalize a status. If you had criminalized using drugs, that’s okay. Possessing drugs, that’s okay. Those are acts, but you cannot criminalize a status. And the court then, in another ruling, tried, some people tried to push to extend that rationale to acts that flow from a status.
[00:07:14] This particular case was Powell v Texas, and it concerned a guy who was Said he had, he was an alcoholic, so he had to drink and he had to do it in public, but this, the court actually struck, ruled against him in that favor. Those were the big cases. These are, these are ancient cases, like no Americans know about them, and certainly people on the West Coast have no idea how much Robinson v California and Powell v. Texas has to do with their quality of life. Those were specifically the ideas, the doctrines, the rulings that were really at the core of this case, Chris Pesce Johnson.
[00:07:46] Joe Selvaggi: So, okay, so this is probably a difficult concept for our listeners to process, which is one cannot constitutionally make someone’s status illegal, I don’t know, being too tall or something, some immutable characteristic about an individual. But, of course, we can criminalize acts, and that line between what’s status and what’s an act is a fine one. As you mentioned, if you’re an alcoholic, you can criminalize drinking in public, but you can’t criminalize being a drunk or whatever euphemism we want to use. So, in this case, the parallel here then, of course, is homelessness.
[00:08:18] There’s a difference between one who doesn’t have a home, that’s their status, and one who sleeps outside in a, you know, in a car, right? In a sense, that’s an act. They’re not being prosecuted for lack of a home, but rather for sleeping outdoors. Do you want to say more about where that line has historically been drawn or anything more about that?
[00:08:36] Stephen Eide: Well, I mean, if I can get into a little bit how Justice Gorsuch, Thought about this. He wrote the majority opinion because I think it helps clarify this argument. He really did not like the, there’s this, he flirted with the idea that maybe Robinson Valley, California was not a great idea to begin with.
[00:08:51] And in fact, Justice Thomas wrote a separate opinion claiming just that. But Justice Gore said, okay, just working with this, the Cruel and Unusual Punishments Clause is supposed to be about punishments. What comes after Someone breaks the law. It’s not supposed to be about whether or not a specific law can be in the books.
[00:09:10] We have other constitutional provisions that determine whether something can be criminalized at all. The First Amendment, the Fourteenth Amendment, Eighth Amendment are really just about punishment. So what we really need to be thinking about in this case is whether these punishments, these fines, and being barred from parks if you’re caught repeatedly, Camping in public places in Grants Pass, is that a constitutional violation?
[00:09:32] And he really did not like the idea, he thought it would just expand it in all kinds of dangerous directions, and that’s why he wanted to really keep the lid on things and overrule the Ninth Circuit’s rulings.
[00:09:43] Joe Selvaggi: Really, again, I think Justice Gorsuch, and we’ll get to that a little later, probably sees the world a little bit more like the way you, or perhaps I do, and less like the way the precedent in the Robinson case, but I want to unpack this idea.
[00:09:55] If I’m homeless, how I want to make the case that it’s a necessity, it’s involuntary in a sense, it’s a necessity. I’d love to have a home, but I can’t. I wish I could, but I don’t. How do we, in a sense, or how has the courts, or how have municipalities defined the necessity of homelessness? Rather, one can voluntarily choose to be homeless, and one’s less sympathetic to those people.
[00:10:15] And your book very clearly says there’s no one group called homeless. There’s all of them. A myriad of reasons why someone is homeless. Let’s just take this argument at face value. If I wish I could find a shelter and there’s not enough room in the shelter, doesn’t that make me involuntarily homeless and therefore, in a sense, I, out of necessity, need to be a homeless person?
[00:10:34] Stephen Eide: Well, in principle, I suppose, but it’s This is where I think the perspective of these cities and municipalities kind of is helpful to bring in because they’re saying like, I don’t know what any of these people’s story is, okay? The difference between whether or not that particular case you laid out applies to 30 people versus whether it applies to 600 people is huge from my perspective to provide for people.
[00:10:59] Uh, I don’t know if it’s practical for me to do a sort of, you know, Take testimony from every single person who is in homeless to do some sort of evaluation before I decide whether or not I can force a law against them. People have all kinds of stories. Some people are local, some people are not. Some people have family members that they could live with under certain conditions.
[00:11:19] Some people just have no options whatsoever. The government is just going to have to provide for them for the rest of their life. Certainly, it is impractical for courts to be involved in making those decisions. It’s hard enough for municipalities. to be involved. This came up in this particular scenario that you question that you’re honing in on came up the question of whether or not this should be even a class action matter because some of the people the plaintiffs who were involved in this case or past cases such as the Boise v. Martin case Which is another night in a certain case that was very similar. They weren’t residents of the community. They were, they came into the community here and there. And yet they were suing this particular community based upon the unconstitutionality of their ordinances. So on the ground, this is obviously very complicated.
[00:12:03] This is messy to sort through. But as a result, one might argue that it’s just that type of issue that localities should be really empowered to address through the normal democratic process without federal court oversight.
[00:12:17] Joe Selvaggi: Yeah, and one of the things I was getting at, again, what I read about and looking at the history of this, digging more deeply, is there was a defense saying, as you mentioned, 600 homeless people in a town, if there’s only 570 beds, in theory, 30 people don’t have homes if they wanted them.
[00:12:32] Ergo, everybody’s homeless involuntarily. So, it confers a status to everyone, regardless of how each individual person is perceived. Arrived at their lack of a home. What I’ve read is that because of this lack of enforcement, and we’re going to talk about more about this later, in those towns where it was deemed, let’s say, beyond the reach of municipal leaders to essentially fine or jail people sleeping in homeless in public because they were entitled to these homeless camps, the homeless shelters emptied out and more people, potentially the effect was to have everybody run out and live on the streets.
[00:13:08] You’re an expert in this area. Why would someone choose to be homeless when there’s shelters available? You know, this is maybe not germane to legal issue, but you’re the expert in homelessness. Why would that happen?
[00:13:22] Stephen Eide: I’ll give all kinds of reasons. Um, pet ownership has become more normalized among the homes.
[00:13:28] My impression is that back in the 80s, you didn’t see as many homeless people with pets, and somewhere between then and now, it just became the thing to do. And this is not a good idea. For many reasons, your upward mobility options are going to be really unlimited. Nonetheless, they’re very insistent about their pets.
[00:13:44] This creates all kinds of problems for shelter management, not just keeping everyone from being at each other’s throats if there are like all kinds of pets involved, who’s looking after these dogs, but that’s one thing they will insist on. Sometimes they will say, well, I want to be with my partners. And homeless, when you’re running in shelter management, another shelter management one on one question, you kind of need to keep males separate from females and certainly single adults separate from families, but then they’ll say, no, we got to be sheltered together.
[00:14:10] And if there’s no option like that, and in many communities with just like one shelter or something, that’s not going to be an option, okay, I’ve got to sleep out. They will say, I’m not, I don’t feel safe inside a shelter, even though, just objectively speaking, you will always be safer inside a shelter than on the streets where you have no protection whatsoever.
[00:14:27] And then all kinds of mental health issues. Things people will cite. Serious mental illness and homelessness, that is a very important issue, very important connection there, but vaguer mental, well, I just need privacy. I can’t sleep in a big room with a bunch of other guys in bunk beds. I need my other room, otherwise, deal breaker.
[00:14:42] So there’s really a whole litany of reasons that Why people say, I need this shelter of this specification, this points towards what would be just absolute unaffordability in terms of cost for a city like Grants Pass. 40, 000 people can’t build a shelter program for every single person. So, this is policy.
[00:15:01] We have to work in generalities. We can’t wait to satisfy everyone, every last person’s shelter specifications until we can begin to force common sense into encampment ordinances.
[00:15:11] Joe Selvaggi: Yeah, and to talk about, further about the blurry line of what is a homeless person, people sleeping outside where they shouldn’t be even includes very different groups with different motivation, even campus protesters. Can’t some of the logic in these earlier decisions even extend to them? In other words, if one can sleep outside for any reason, then that includes being a student protester. Is that fair?
[00:15:33] Stephen Eide: Well, another person who the case of student protesters was on his mind was Justice Gorsuch, who specifically cited that case in his opinion, and that was why he said Grants Pass’s ordinances are not, they don’t criminalize status because they could apply to people with all kinds of different statuses, including backpackers and campus protesters. So, absolutely, that would apply as well.
[00:15:56] Joe Selvaggi: Yeah, so again, I alluded to it a little bit earlier, but you’ve talked as a homelessness expert, you’ve seen sort of the evolution, you made a reference to the impact of COVID, we talked about that in our last conversation, but you’ve seen sort of the long arc of homelessness rise and fall, as it were. What has been the effect of, let’s say, the precedent of essentially the courts forbidding municipal governments from clearing these encampments? To date, you know, does it have the effect of stabilizing homelessness or does it make it shrink or grow by hamstringing municipalities from clearing them away?
[00:16:35] Stephen Eide: Yes, well, there was this, as I alluded to earlier, there was this very similar decision the 9th Circuit handed down called Boise v. Martin that came down in 2018. Since 2018, in the 9th Circuit, in the 9 states in the 9th Circuit, homelessness and street homelessness increased 40%. So, it got way worse by any objective measure, and just talking to people who live in California, if you ask them.
[00:16:56] So, as street homelessness got worse, or, no one would say street homelessness got better in California over the past 10 years. Five years. So there was that. There was also that factor of the declining interest in, in shelter, declining shelter demand. As you noted, one of the most interesting amicus briefs that was filed in the case of Grants Pass was filed by the local shelter, the local rescue mission in Grants Pass, which stated since public camping was essentially authorized, we’ve experienced a 40 percent drop in demand for our shelter. So if you accommodate street living in a place with decent weather, people will, it turns out, take you up on that. And so, in rather predictable ways, homelessness did worsen since this, since the ninth circuit regime was put in place and then became just more and more tighter and more dominant.
[00:17:44] Joe Selvaggi: I can imagine some of our listeners saying, well, it sounds like you guys are completely, you lack any compassion for these homeless people. If they want to live outside and they think that’s better than living in a shelter, why not do that? Why do you need to fine and jail these people? Share with our listeners, what is life like? You kind of alluded to it earlier. If I live in an outdoor encampment versus a homeless shelter, how is my life different, better or worse?
[00:18:11] Stephen Eide: Well, certainly, you have no protection for other people who are trying to prey on you, and as it happens, there’s a lot of predatory behavior and victimization that happens in encampments in the West Goods. Very high rates of sexual assault, very high rates of just being robbed, and also violence. The There’s Clearly a close connection between the soaring rates of fatal overdoses and street homelessness.
[00:18:35] Homeless encampments are just known as places where it’s easy to find, uh, acquired drugs. Around the homeless encampments, the streets are notoriously covered in used needles and other drug paraphernalia. So if you’re in the market, that’s an easy place to find. What you’re looking for. Retail. America has this big, it’s really sad what’s been happening to retail in America over recent years.
[00:18:55] And that has a few factors, but store owners are absolutely up against it in West Coast communities when they have people just living on the sidewalk outside their storefront and they’re touring away what few customers. They have left. So, there’s been this kind of, with the normalization of encampment life, we’ve seen that’s coincided with increased criminal activity, in some ways, certainly, fatal overdoses, big impact on both residents and also businesses, and I haven’t even mentioned the fatal, sometimes, disease outbreaks, really weird, like medieval diseases.
[00:19:29] have been outbreaks in certain west coast encampments. People come by and they give people food and so then what happens to the trash? Well, it just sits out there so it attracts like rats and everything and so just imagine living next to one of these places and that’s been the reality for too many residents and businesses out west.
[00:19:47] Joe Selvaggi: Indeed, one doesn’t have to imagine. We’re going to talk about it in a bit. I’d like to ask you about Boston and our progress in this issue of mass and caste, these kinds of issues. But of course, I’m glad you point out the fact that it’s not merely a miserable place for the homeless, the homeless themselves living in these camps, but of course for retail, but of course residents.
[00:20:03] I imagine that somebody who’s a mobility impaired, they can’t get around the sidewalk, or children, my God, you know, if they’re, you know, what they may see and the impact that will have on them. In reading the Gorsuch, we’re going to get to the finding, and he makes many references to the fact that this is largely It references West Coast cities, West Coast problems.
[00:20:24] Those of us who live on the East Coast and the West Coast, we see sort of a similarity in, in our, let’s say, political preferences. Both cities and these states are skew left, more progressive leadership. Why is it that the West seems to wrestle with these homelessness issues? To a greater degree. We have it here in Boston and New York and Philly and DC, but why does it so bad? I’ll just throw out this statistic. I read that. Um, California is 10 percent of the country’s population and 30 percent of the country’s homeless population.
[00:20:52] Stephen Eide: What’s going on? Why? Yeah, half the street homeless population. Yeah, um, well, I mean, you know, the weather, there’s this connection between weather and also investment in shelter, meaning temporary, uh, housing.
[00:21:04] Um, you know, the more punishing January temperatures in places like Boston, Philadelphia, and New York seems to have an effect on keeping the lid on street homelessness. You have a significant homeless population in places like New York and Boston, but it doesn’t, uh, allow the street population to spread.
[00:21:24] There may also be a way in which there are just these kind of traditions of enforcement that lurk just slightly below the surface in these otherwise progressive cities. I mean, New York, even under de Blasio, who is a very progressive mayor, they were quite firm about not letting encampments spring up. Every time some little encampment sprang up, the New York Post coverage swarmed. That was done, um, in a couple of days. Um, there’s also a way in which the homelessness out in the West, it’s spread everywhere. It’s dispersed. It’s just, you know, you’ll see tents popping up in the most. Random places. Whereas the fact that Boston, you really had this controversy of this one place, Madison Cass, in New York City it’s also concentrated too in Manhattan and the subway system.
[00:22:07] You know, the beaches in Long Island or, you know, Martha’s Vineyard or something. You don’t have like people living there. California, that’s Something that does, you do see. So, it is a, it’s a different challenge. And then the last point to emphasize, and I touched on this earlier, you see more investment in, in shelter, temporary housing, although that, that, that relates to the weather issue because it’s harder to get people to go into shelter in the West Coast because you’re competing with California weather as opposed to Boston in January.
[00:22:37] Joe Selvaggi: Indeed, our curse is also our blessing with regard to this particular issue. So, let’s jump to the finding of the case we’ve mentioned a couple times. Grants passed, it was the majority was, opinion was written by Justice Gorsuch. It was a pretty long decision, I think it was 42 pages, and it seemed to my reading to show genuine compassion for the challenges of the homeless and a reluctance to sort of have the courts solve things.
[00:23:01] You’re the expert in homelessness. In reading that decision, I joked before we recorded that he must have read your book, but it seemed to me it was a well-informed decision. As an expert in homelessness, did the opinion, the majority opinion, reflect an informed view of homelessness?
[00:23:19] Stephen Eide: Yeah, I think so, you know, that he made, he used the term, like, you know, tool, the toolbox, that this is one tool among many.
[00:23:26] I’ve studied homelessness in a number of cities. I try to talk with service providers and people working on this issue on the ground as much as I can. And the normal situation is not to have law enforcement be the only solution. Like, it’s particularly in the West Coast where you’ve seen just historic investments.
[00:23:43] And homelessness programs, it’s not just, we’re not trying to wrest our way out of homelessness. That’s not what this is about, but whether or not police, law enforcement can be one tool in the toolbox, that’s an appropriate response to homelessness, especially given the complexity of the issue. And that is what the Ninth Circuit had denied me.
[00:24:03] denied municipalities. So that’s, I think, the right way to think about it, as well as whether or not judges have any kind of confidence to sort through whether or not there’s enough shelter in a particular jurisdiction is the also crucial issue that only the Supreme Court is going to be able to provide a definitive answer to.
[00:24:20] What we really need to get a clear answer to that, and I think we got it.
[00:24:24] Joe Selvaggi: I don’t want to pin you down on a particular illegal concept, but we talked about the basis for let’s say the Ninth Circuit view of Grants Pass saying that Grants Pass didn’t have the right to impose fines and jail on homeless.
[00:24:37] This decision overturns that decision. We said the earlier decision in the Ninth Circuit was rested on you don’t want to have cruel and unusual punishment or criminalize the status of homelessness. You don’t have to go too far down sort of legal analysis, but what did Gorsuch say regarding those two issues?
[00:24:55] Did he essentially say they don’t matter, or he’s, he believes that fines are not cruel and unusual, and that this doesn’t criminalize status, but rather the act of sleeping in public. What would you say?
[00:25:09] Stephen Eide: Yeah, I mean, he was specifically evaluating Grants Pass v. Johnson, though the Boise v. Martin ruling was in the mix, because the reasoning was almost exactly the same.
[00:25:18] Grants Pass was more about fines than Boise v. Martin, but very similar. He said that generally applicable public camping laws are fine, they don’t violate the Cruel and Unusual Punishments Clause, so that would also render Boise v. Martin type reasoning in question, because that was at the core of that decision for listening.
[00:25:38] Joe Selvaggi: So, the dissent was written by Justice Sotomayor. I guess this one, unfortunately, I don’t like to see those kinds of divisions, but it seemed to fall down along ideological lines left and right. We had six Republican appointed justices agreeing with Gorsuch in the majority and the three democratically appointed, Democrat appointed justices agreeing with joining Sotomayor’s, Justice Sotomayor’s dissent. What was her beef with the majority and what can you say about that?
[00:26:05] Stephen Eide: Yeah, I mean, and quickly on that partisan point, it is disappointing. The justice that I actually pay attention to somewhat in these splits is Justice Kagan. So if there’s anything, anyone left who may be considered the center left type, I think Justice Kagan sometimes has that reputation.
[00:26:19] So it would be interesting to me if she you. You know, cited more often with the conservatives, but yeah, we seem to be settling into this very strict liberal versus conservative split. And so you had these three democratic appointed justices who looked in from a political lens were far to the left of mainstream democratic opinion in California.
[00:26:37] I mean, far to the left of Gavin Newsom, the mayors of San Francisco and in LA on this issue. So it really tells you where the judiciary is at compared to what the political elected democratic class is at. I think, you know, she, she, she. Supported the Ninth Circuit’s reasoning that they’re just, this is an act that flows from a status, they can’t help it, it’s involuntary, where do you expect these people to live?
[00:27:04] What do you expect them to do? And so this is an argument that we’ve heard many advocates make in many different contexts. And, and she was persuaded by it.
[00:27:14] Joe Selvaggi: Yeah, indeed. And I’ll say, okay, from the, yeah, you say this is further to the left than even sort of the Gavin Newsom’s of the world. But I’ll say, I, to my, I don’t want to call them my right, but my libertarian friends were also somewhat uncomfortable with this decision because in their mind, you know, in this sort of It’s a battle between individual rights and the rights of the state.
[00:27:32] This seems to be resting some of the individual prerogatives to, frankly, sleep in public on the ground, versus the rights of the town to manage and mitigate those things. To my reckoning, though, by taking the power effectively away from the courts, And giving it to the states, that seems to be a step in the Democratic direction.
[00:27:50] Is that fair? I mean, you know, it’s not sort of a victory for the state, but it’s sort of a defeat for the courts to impose their priorities on individual towns and cities.
[00:28:01] Stephen Eide: Yeah, Justice Gorsuch was very clear that nothing in this ruling would prohibit a city from just accommodating public camping or accommodating in some place and not other places.
[00:28:10] It’s up to you.
[00:28:11] Joe Selvaggi: Right. I don’t want to just glaze over that point, because I think it’s very important to note this. If a town leader, a duly elected town mayor or whatever, wants to say, look, that’s great, now I have the prerogative to fine or put in jail people in homeless encampments, that It’s still my prerogative as a leader, elected leader, to let them, let it ride.
[00:28:32] You can, as a leader, allow encampments all you want. It says no bearing. It’s not a mandate to manage homelessness. It’s a prerogative to manage homelessness. Fair enough?
[00:28:43] Stephen Eide: Yeah, absolutely. And that’s what we’re going to see playing out. It’s also a question of resources. You know, you need The way that LA in particular does it, lots of police, lots of sanitation workers are required to the point where they actually have to ration cleanup resources, so whether or not they’re going to be re evaluating all that is something that we’ll have to watch.
[00:29:02] Joe Selvaggi: Okay, so let’s, we’ve been talking in general terms of what’s going on in Washington, D. C. or on the West Coast, but as you mentioned, last time we spoke, we were talking about, a little bit more about Boston. It was the height of COVID, but we had a lot of homeless people, everything, public policy was fairly chaotic then, and you mentioned a few times this phenomenon we have here in Boston, the homeless encampment on the intersection of Massachusetts Avenue and Melania Cass Boulevard, which we Affectionately referred to as Mass and Cass.
[00:29:30] It’s now two years later. You have been an observer of Boston and what’s been going on here. How would you report? How are we doing managing our encampments and effectively the safety of those Bostonians that are living such a dangerous life?
[00:29:46] Stephen Eide: Yes, well, I, I dipped in and out of the Massencast saga over the years, and I am not nearly as informed, particularly, I did drive through, I was visiting a, as I mentioned, I like to visit lots of service providers, and I happened this past January to be visiting a recovery program in that area.
[00:30:05] It’s called Phoenix, I believe. And so I drove through that intersection and was struck. Again, this was deep January, maybe not the best test time to look at it, but certainly looked a lot better than the pictures that I had seen from previous summers. Um, uh, I, I think that Boston now, although it was not in the Ninth Circuit, I can’t remember which circuit Boston’s in, but this, so this ruling never directly applied to Boston, I think very clearly any general counsel of any mayor anywhere in America is going to feel much more confident advising that particular mayor that we can take action before we’ve invested lavishly in him.
[00:30:50] All other sort of solution to address some behemoth encampment that the public is demanding action on. The Supreme Court has said, it’s okay, you can do this. So I think in a post Grants pass world, it’s more likely that mass and caste is not going to spiral out of control like it did during the deep COVID years.
[00:31:11] Joe Selvaggi: Again, you’ve anticipated my running out of time. My last, nearly last question is, now that this is the law of land, this decision was handed down the 28th of June, recording in July 3rd. Now that this has been handed down, you’ve mentioned, of course, Boston perhaps will see itself as having a freer hand.
[00:31:29] Do you think that these places that do have much larger population than Boston? Challenges with homelessness will, in a sense, pivot and more aggressively enforce public encampment rules now that this is the law of the land.
[00:31:44] Stephen Eide: Particularly with the tents. Yeah, the tent is just such an iconic image in California.
[00:31:50] There are a lot of other problems. I’ve been to California in, I’ve been to places in California post and encampment cleanup and there’s, it’s, they still can look rough around the edges. Drug decriminalization, the normalization of public drug use is something that California and Oregon, they’re very much debating right now.
[00:32:09] Okay, we don’t want to go back to like We don’t want, we want to draw back the use of incarceration for drug use, but at the same time, we don’t want to completely legalize or even decriminalize hard drugs. What does that mean for something like public drug use? So people like using fentanyl in your face in public.
[00:32:26] That is something that is related to the tent public camping issue, but it’s not legally speaking the same question. So, in a way, we might see more focus on those types of questions as publics in Western states continue to push for improvements in quality of life.
[00:32:41] Joe Selvaggi: Indeed, they’ll be able to better tailor their solutions to their particular problems and the particular problems of the individuals within those encampments who are taking those drugs.
[00:32:51] People have lost their way. So, we’ve run out of time. I read your most recent piece. I think it was released the same day as the ruling, almost the same day in the Wall Street Journal. I thought that was a terrific piece you wrote. Where can our listeners find your work or start following your writing on homelessness?
[00:33:06] Stephen Eide: Our website is manhattaninstitute. The Manhattan Institute for Policy Research.
[00:33:11] Joe Selvaggi: Wonderful. Okay, Stephen Eide from Manhattan Institute. I appreciate you for joining me on this issue so quickly after the decision. I’m glad. I think, I think the world got a little bit better. To be a little bit better placed with this ruling, I appreciate you coming in and helping our listeners understand the significance of what the majority found. Thank you for joining me.
[00:33:31] Stephen Eide: Thanks so much for having me, Joe.
[00:33:36] Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find us if you offer a five star rating or a favorable review.
[00:33:52] Of course, we’re grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re certainly welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.
Joe Selvaggi speaks with Manhattan Institute Senior Fellow Dr. Stephen Eide about the Grants Pass v. Johnson Supreme Court decision and its impact on homeless encampments in Boston and across the country.
Guest:
Stephen Eide is a senior fellow at the Manhattan Institute and contributing editor of City Journal. He researches social policy questions such as homelessness and mental illness. His first book, Homelessness in America: The History and Tragedy of an Intractable Social Problem, was published in June 2022. He was previously a senior research associate at the Worcester Regional Research Bureau. Eide holds a B.A. from St. John’s College in Santa Fe, New Mexico, and a Ph.D. in political philosophy from Boston College.
This week on The Learning Curve co-hosts U-Arkansas Prof. Albert Cheng and DFER’s Alisha Searcy interview Harlow Giles Unger, author of Lion of Liberty: Patrick Henry and the Call to a New Nation. Mr. Unger delves into the life of Patrick Henry as the country celebrates the Fourth of July. He explores Henry’s early life, his rise as a lawyer and political figure, and his fiery opposition to British policies. Mr. Unger highlights Henry’s famous “Give me liberty, or give me death!” speech and his influential role as governor of Virginia, underscoring his enduring legacy in helping forge American independence. In closing, he reads a passage from his book, Lion of Liberty: Patrick Henry and the Call to a New Nation. The Learning Curve team wishes everyone a safe and happy Fourth of July!
Stories of the Week: Albert discussed an article from AP News sharing how Oklahoma finds religious public schools unconstitutional; Alisha reviewed an article from Chalkbeat expressing teachers’ union frustrations with New York’s new reading curriculum.
Guest:
Harlow Giles Unger is an award-winning journalist, broadcaster, educator, and historian. A New York Times-bestselling author of more than 30 books, he is a former Distinguished Visiting Fellow in American History at George Washington’s Mount Vernon. Among his books, Lafayette won the American Revolution Round Table Book Prize and the Daughters of the American Revolution book award among others. His bestseller, The Last Founding Father: James Monroe and a Nation’s Call to Greatness, earned him the Washington Post designation as a “Premier Presidential Biographer.” Among his other books, include Lion of Liberty: Patrick Henry and the Call to a New Nation; John Marshall: The Chief Justice Who Saved the Nation; The Unexpected George Washington: His Private Life; Dr. Benjamin Rush: The Founding Father Who Healed a Wounded Nation; John Quincy Adams; and, most recently, Thomas Paine and the Clarion Call for American Independence. He is a graduate of Yale University.
Tweet of the Week:
“She’s a good girl. She helps me a lot. She has big, big dreams. I don’t have the money, but she has big dreams. I hope she’s going to get everything, but she works so hard. She works so hard in school.”
“Our family is needing to make some really big sacrifices because we believe this is important, and so, we’re basically going to do whatever it takes… Sometimes we look at each other and go ‘I don’t know if I can do it again another month…’”
“A lot of the families have to sacrifice and work multiple jobs… And just scraping together enough money to just make tuition, just the basics.”
“It is discriminatory, that parents who want to choose an alternative to public school for their children, would not in any way receive any compensation for that, whether it be tax credit, whether it be a voucher…”
In the 1840s, nativist movement leaders formed official political parties and local chapters of the national Native American Party (later the American Party), although they continued to be commonly known as the Know-Nothing Party. Politicians sought to insert provisions into state constitutions against Catholics who refused to renounce the pope. The Know-Nothing movement brought bigotry and hatred to a new level of violence and organization.
The party’s legacy endured in the post-Civil War era, with laws and constitutional amendments it supported, still today severely limiting parents’ educational choices. A federal constitutional amendment was proposed by Speaker of the House James Blaine prohibiting money raised by taxation in any State to be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations. These were then named the Blaine Amendments of 1875.
in recent decades, often in response to challenges to school choice programs, the U.S. Supreme Court has demonstrated great interest in examining the issues of educational alternatives and attempts limit parental options. Massachusetts plays a key role in this debate. The Bay State was a key center of the Know-Nothing movement and has the oldest version of Anti-Aid Amendments in the nation, as well as a second such amendment approved in 1917. Two-fifths of Massachusetts residents are Catholic, and its Catholic schools outperform the state’s public schools, which are the best in the nation.
According to the 2020 census, Massachusetts had a population of 7,029,917 people, making it the 15th largest state by population. But in terms of geographical size, it is the seventh smallest. The densely populated Bay State, containing the major economic hub of Boston, continues to be an attractive destination for immigrants.
In fact, Massachusetts is one of the most diverse states in New England. According to the Census Bureau’s Diversity Index, Massachusetts trails only Connecticut in its diversity rating. The Diversity Index is a measure determining the likelihood of choosing from a random population group, and selecting individuals from different racial or ethnic backgrounds. It ranges from 0 to 100 percent, 0 being completely racially homogenous, and 100 being everyone belonging to a distinct ethnic group. The 2020 census determined that the DI of the United States was 61.1 percent. Massachusetts fell below this national average with a DI of 51.6 percent, ranking 26th out of the 50 states plus Washington D.C. However, it is important to recognize that the Bay State has diversified significantly since 2010, increasing its index by over 10 percentage points.
The population of Massachusetts in 2023 was majority white (72.7 percent), followed by Hispanic and Latino (11.6 percent), black and African Americans (8.2 percent), and the smallest percentage being Asian (7.6 percent). Now that there is an understanding of the racial composition of Massachusetts, let’s look at how unemployment has different effects on these groups.
According to Pioneer Institute’s LaborAnalytics, the unemployment rate in Massachusetts in 2023 for white individuals in the labor force, who make up 65 percent of all unemployed individuals, was 3.1 percent. For black or African Americans, the unemployment rate was 5.3 percent, and those individuals accounted for 12.6 percent of the unemployed population. For Hispanics or Latinos the UE rate was 4.6 percent, making up 14.7 percent of the unemployed population. Lastly, for Asians it was 3.5 percent and 7.7 percent of the total unemployed population. This demonstrates that minority populations are disproportionately more likely to be unemployed compared to their white counterparts in Massachusetts.
The difference may partially be explained by historical disadvantages for minorities in the labor force. Racial and ethnic minority groups, specifically blacks and African Americans and Hispanics and Latinos in Massachusetts face larger obstacles in terms of employment opportunities. These groups face higher unemployment rates than whites, and comprise a larger portion of the unemployed population in comparison to their composition of the entire civilian labor force of Massachusetts. The state has, and continues to, implement strategies to close the racial/ethnic unemployment gap, but it is clear that more needs to be done to completely solve this pressing issue.
Dana DiChiro is a Roger Perry Government Transparency Intern at the Pioneer Institute for Summer 2024. She is a rising senior studying Government & Politics and Economics at the University of Maryland, College Park.
Click here to read a transcript
[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi.
[00:00:09] Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. As tent cities filled with homeless people have spread across urban communities in recent years, elected leaders have often passed the buck, claiming their hands were tied by a 9th U. S. Circuit Court of Appeals ruling which deemed prohibitions on homeless encampments as cruel and unusual punishment.
[00:00:28] This reluctance to enforce public encampment laws has forced communities to accommodate street homelessness. and the related issues of retail theft, human waste on sidewalks, sexual violence, and overdose deaths. But in the recently decided Supreme Court case, City of Grants Pass v. Johnson, Justice Neil Gorsuch’s majority opinion made it clear that ordinances that levied fines for public camping were not enough.
[00:00:50] Wouldn’t strike most Americans as cruel, but a three justice minority disagreed, asserting that the decision to impose fines and potential jail time for those sleeping in public places effectively criminalizes the status of being homeless, thus prosecuting Americans for who they are rather than what they have done.
[00:01:08] How has the divided view of homelessness in our courts played a role in the rise of public encampments? And what effect is the Grants Pass decision likely to have? on Public Policy Makers Going Forward. My guest today is Manhattan Institute Senior Fellow and author of Homelessness in America, the History and Tragedy of an Intractable Social Problem, Dr.
[00:01:28] Stephen Eide. Dr. Eide has written extensively on the challenges of homelessness, including those imposed on municipal leadership by federal courts. He will share with us the current trajectory of homelessness in the U. S. and explain how the recent Supreme Court decision to permit local enforcement against public encampments will affect the homelessness.
[00:01:47] and our communities at large. When I return, I’ll be joined by Manhattan Institute’s Senior Fellow, Dr. Stephen Eide.
[00:02:04] Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by Senior Fellow at the Manhattan Institute, Dr. Stephen Eide. Welcome back to Hubwonk, Stephen.
[00:02:14] Stephen Eide: Thanks so much for having me, Joe.
[00:02:16] Joe Selvaggi: Great. Well, the last time you were here, I just looked it up. It was just about exactly two years ago, and we were talking about the observations you made in your recently, then recently released book entitled Homelessness in America, the History and Tragedy of an Intractable Social Program.
[00:02:31] I learned a lot in our conversation about the causes and potential solutions for homelessness, but today we’re going to talk about a recent Supreme Court ruling. A decision Grants Pass v. Johnson, but before we dive into the issues of that case and its relationship to homelessness policy, let’s just retouch on the homelessness issue now two years later. What is the landscape of homelessness in the United States as you see it right now?
[00:02:55] Stephen Eide: Well, I think we’ve pushed out of the COVID era, which created lots of complications and homelessness in so many areas of American life. We’re beginning to reconcile ourselves to the idea that homelessness in the 2020s is probably at least as challenging as it was in 2010s.
[00:03:13] Um, so normalcy, if you will, has er Arrived, but that’s a grim prospect, the numbers are up, and so we’re trying to decide are we going to be re litigating the old debates that left us kind of stonewalled, or is there possibility for some breakthroughs here and there?
[00:03:29] Joe Selvaggi: Well, indeed, I think we may have had a breakthrough last week with a Supreme Court decision, we’re going to be talking about that decision, called Grants Pass v. Johnson, and it really relates to a town, a small town in Southern California. Oregon or Washington?
[00:03:43] Stephen Eide: Southwestern Oregon.
[00:03:43] Joe Selvaggi: Yeah. And which they were dealing with homelessness. If you will, again, I’m not presenting you as a constitutional scholar, but rather one who I’m sure followed this case very carefully. What would be, in broad strokes, what are the details of the case?
[00:03:56] Stephen Eide: Yes, well, Grants Pass is this little city that had in its code, you know, its ordinances, on the books, laws prohibiting camping in public, basically, and those laws were struck down by the Ninth Circuit Court of Appeals, which has jurisdiction over the nine western states, and their argument was that those laws violated the Eighth Amendment’s Prohibition on Cruel and Unusual Punishments, that is, The 9th Circuit ruled that it was illegal for Grants Pass or any other municipality in that jurisdiction to ban camping in public if it’s not providing some other alternative to sleeping in public. That amounted to criminal, unusual, and punishment, and as a result, in the wake of that ruling, and really in the wake of prior similar rulings, municipalities really felt kind of paralyzed as to what it could do to address this big problem of street homelessness out West.
[00:04:43] Joe Selvaggi: Indeed, so we have the courts hamstringing the, uh, the municipality’s ability to deal with homelessness based on the fact that one is homeless and to give them a fine or lock them up is cruel and unusual. As you mentioned, it first faced a federal district court and then to the Ninth Circuit Court of Appeals, so it was a big case. I don’t want to put words in your mouth, but did this victory, at least at that level, at the lower courts, effectively establish a right to sleep in public?
[00:05:07] Stephen Eide: Well, that was certainly what many localities said.
[00:05:11] One thing that was striking about this case is how many governments filed amicus briefs with the court, urging them to take up the case, and after it took up the case, claiming that this was just unworkable. Officially, the 9th Circuit said, well, if you provide adequate shelter, you can still enforce the laws.
[00:05:28] All these governments, and I stress this is the West Coast, so these are Democrats, right? So, Governor Gavin Newsom, the mayors of Los Angeles, San Francisco, we’re all saying we cannot respond to our constituents demand that we address homelessness under this legal regime that the Ninth Circuit has put in place.
[00:05:45] In practice, that’s what they were saying. We are paralyzed. You seem to be saying that people just have a right to sleep in public wherever they want. We’ve invested, you know, hundreds of millions of dollars, billions in homeless services. You’re effectively saying that’s not enough. What would be enough? Are we just supposed to go bankrupt on the way to providing enough shelter and housing for people so we can enforce our laws? In practice, yes, that was the result, and that’s why the Supreme Court ultimately just had to get involved here.
[00:06:11] Joe Selvaggi: All right, but let’s dwell on the past and say, okay, we arrived here at an inflection point, but to get here, what is it about the notion of the Eighth Amendment prohibition against cruel and unusual punishment? What precedent was it that set this idea that the court to essentially fine someone for being homeless, while being homeless, for the act of being homeless? Why is that cruel and unusual? What is it about that?
[00:06:36] Stephen Eide: Yeah, well, there were these cases early in the 60s, Robinson v. California, which is the important one, that pertain to a law that California had on the books about prohibiting being addiction. It’s illegal to be addicted to drugs. And the court, that time, said, you can’t do that. That is a status, and you can’t criminalize a status. If you had criminalized using drugs, that’s okay. Possessing drugs, that’s okay. Those are acts, but you cannot criminalize a status. And the court then, in another ruling, tried, some people tried to push to extend that rationale to acts that flow from a status.
[00:07:14] This particular case was Powell v Texas, and it concerned a guy who was Said he had, he was an alcoholic, so he had to drink and he had to do it in public, but this, the court actually struck, ruled against him in that favor. Those were the big cases. These are, these are ancient cases, like no Americans know about them, and certainly people on the West Coast have no idea how much Robinson v California and Powell v. Texas has to do with their quality of life. Those were specifically the ideas, the doctrines, the rulings that were really at the core of this case, Chris Pesce Johnson.
[00:07:46] Joe Selvaggi: So, okay, so this is probably a difficult concept for our listeners to process, which is one cannot constitutionally make someone’s status illegal, I don’t know, being too tall or something, some immutable characteristic about an individual. But, of course, we can criminalize acts, and that line between what’s status and what’s an act is a fine one. As you mentioned, if you’re an alcoholic, you can criminalize drinking in public, but you can’t criminalize being a drunk or whatever euphemism we want to use. So, in this case, the parallel here then, of course, is homelessness.
[00:08:18] There’s a difference between one who doesn’t have a home, that’s their status, and one who sleeps outside in a, you know, in a car, right? In a sense, that’s an act. They’re not being prosecuted for lack of a home, but rather for sleeping outdoors. Do you want to say more about where that line has historically been drawn or anything more about that?
[00:08:36] Stephen Eide: Well, I mean, if I can get into a little bit how Justice Gorsuch, Thought about this. He wrote the majority opinion because I think it helps clarify this argument. He really did not like the, there’s this, he flirted with the idea that maybe Robinson Valley, California was not a great idea to begin with.
[00:08:51] And in fact, Justice Thomas wrote a separate opinion claiming just that. But Justice Gore said, okay, just working with this, the Cruel and Unusual Punishments Clause is supposed to be about punishments. What comes after Someone breaks the law. It’s not supposed to be about whether or not a specific law can be in the books.
[00:09:10] We have other constitutional provisions that determine whether something can be criminalized at all. The First Amendment, the Fourteenth Amendment, Eighth Amendment are really just about punishment. So what we really need to be thinking about in this case is whether these punishments, these fines, and being barred from parks if you’re caught repeatedly, Camping in public places in Grants Pass, is that a constitutional violation?
[00:09:32] And he really did not like the idea, he thought it would just expand it in all kinds of dangerous directions, and that’s why he wanted to really keep the lid on things and overrule the Ninth Circuit’s rulings.
[00:09:43] Joe Selvaggi: Really, again, I think Justice Gorsuch, and we’ll get to that a little later, probably sees the world a little bit more like the way you, or perhaps I do, and less like the way the precedent in the Robinson case, but I want to unpack this idea.
[00:09:55] If I’m homeless, how I want to make the case that it’s a necessity, it’s involuntary in a sense, it’s a necessity. I’d love to have a home, but I can’t. I wish I could, but I don’t. How do we, in a sense, or how has the courts, or how have municipalities defined the necessity of homelessness? Rather, one can voluntarily choose to be homeless, and one’s less sympathetic to those people.
[00:10:15] And your book very clearly says there’s no one group called homeless. There’s all of them. A myriad of reasons why someone is homeless. Let’s just take this argument at face value. If I wish I could find a shelter and there’s not enough room in the shelter, doesn’t that make me involuntarily homeless and therefore, in a sense, I, out of necessity, need to be a homeless person?
[00:10:34] Stephen Eide: Well, in principle, I suppose, but it’s This is where I think the perspective of these cities and municipalities kind of is helpful to bring in because they’re saying like, I don’t know what any of these people’s story is, okay? The difference between whether or not that particular case you laid out applies to 30 people versus whether it applies to 600 people is huge from my perspective to provide for people.
[00:10:59] Uh, I don’t know if it’s practical for me to do a sort of, you know, Take testimony from every single person who is in homeless to do some sort of evaluation before I decide whether or not I can force a law against them. People have all kinds of stories. Some people are local, some people are not. Some people have family members that they could live with under certain conditions.
[00:11:19] Some people just have no options whatsoever. The government is just going to have to provide for them for the rest of their life. Certainly, it is impractical for courts to be involved in making those decisions. It’s hard enough for municipalities. to be involved. This came up in this particular scenario that you question that you’re honing in on came up the question of whether or not this should be even a class action matter because some of the people the plaintiffs who were involved in this case or past cases such as the Boise v. Martin case Which is another night in a certain case that was very similar. They weren’t residents of the community. They were, they came into the community here and there. And yet they were suing this particular community based upon the unconstitutionality of their ordinances. So on the ground, this is obviously very complicated.
[00:12:03] This is messy to sort through. But as a result, one might argue that it’s just that type of issue that localities should be really empowered to address through the normal democratic process without federal court oversight.
[00:12:17] Joe Selvaggi: Yeah, and one of the things I was getting at, again, what I read about and looking at the history of this, digging more deeply, is there was a defense saying, as you mentioned, 600 homeless people in a town, if there’s only 570 beds, in theory, 30 people don’t have homes if they wanted them.
[00:12:32] Ergo, everybody’s homeless involuntarily. So, it confers a status to everyone, regardless of how each individual person is perceived. Arrived at their lack of a home. What I’ve read is that because of this lack of enforcement, and we’re going to talk about more about this later, in those towns where it was deemed, let’s say, beyond the reach of municipal leaders to essentially fine or jail people sleeping in homeless in public because they were entitled to these homeless camps, the homeless shelters emptied out and more people, potentially the effect was to have everybody run out and live on the streets.
[00:13:08] You’re an expert in this area. Why would someone choose to be homeless when there’s shelters available? You know, this is maybe not germane to legal issue, but you’re the expert in homelessness. Why would that happen?
[00:13:22] Stephen Eide: I’ll give all kinds of reasons. Um, pet ownership has become more normalized among the homes.
[00:13:28] My impression is that back in the 80s, you didn’t see as many homeless people with pets, and somewhere between then and now, it just became the thing to do. And this is not a good idea. For many reasons, your upward mobility options are going to be really unlimited. Nonetheless, they’re very insistent about their pets.
[00:13:44] This creates all kinds of problems for shelter management, not just keeping everyone from being at each other’s throats if there are like all kinds of pets involved, who’s looking after these dogs, but that’s one thing they will insist on. Sometimes they will say, well, I want to be with my partners. And homeless, when you’re running in shelter management, another shelter management one on one question, you kind of need to keep males separate from females and certainly single adults separate from families, but then they’ll say, no, we got to be sheltered together.
[00:14:10] And if there’s no option like that, and in many communities with just like one shelter or something, that’s not going to be an option, okay, I’ve got to sleep out. They will say, I’m not, I don’t feel safe inside a shelter, even though, just objectively speaking, you will always be safer inside a shelter than on the streets where you have no protection whatsoever.
[00:14:27] And then all kinds of mental health issues. Things people will cite. Serious mental illness and homelessness, that is a very important issue, very important connection there, but vaguer mental, well, I just need privacy. I can’t sleep in a big room with a bunch of other guys in bunk beds. I need my other room, otherwise, deal breaker.
[00:14:42] So there’s really a whole litany of reasons that Why people say, I need this shelter of this specification, this points towards what would be just absolute unaffordability in terms of cost for a city like Grants Pass. 40, 000 people can’t build a shelter program for every single person. So, this is policy.
[00:15:01] We have to work in generalities. We can’t wait to satisfy everyone, every last person’s shelter specifications until we can begin to force common sense into encampment ordinances.
[00:15:11] Joe Selvaggi: Yeah, and to talk about, further about the blurry line of what is a homeless person, people sleeping outside where they shouldn’t be even includes very different groups with different motivation, even campus protesters. Can’t some of the logic in these earlier decisions even extend to them? In other words, if one can sleep outside for any reason, then that includes being a student protester. Is that fair?
[00:15:33] Stephen Eide: Well, another person who the case of student protesters was on his mind was Justice Gorsuch, who specifically cited that case in his opinion, and that was why he said Grants Pass’s ordinances are not, they don’t criminalize status because they could apply to people with all kinds of different statuses, including backpackers and campus protesters. So, absolutely, that would apply as well.
[00:15:56] Joe Selvaggi: Yeah, so again, I alluded to it a little bit earlier, but you’ve talked as a homelessness expert, you’ve seen sort of the evolution, you made a reference to the impact of COVID, we talked about that in our last conversation, but you’ve seen sort of the long arc of homelessness rise and fall, as it were. What has been the effect of, let’s say, the precedent of essentially the courts forbidding municipal governments from clearing these encampments? To date, you know, does it have the effect of stabilizing homelessness or does it make it shrink or grow by hamstringing municipalities from clearing them away?
[00:16:35] Stephen Eide: Yes, well, there was this, as I alluded to earlier, there was this very similar decision the 9th Circuit handed down called Boise v. Martin that came down in 2018. Since 2018, in the 9th Circuit, in the 9 states in the 9th Circuit, homelessness and street homelessness increased 40%. So, it got way worse by any objective measure, and just talking to people who live in California, if you ask them.
[00:16:56] So, as street homelessness got worse, or, no one would say street homelessness got better in California over the past 10 years. Five years. So there was that. There was also that factor of the declining interest in, in shelter, declining shelter demand. As you noted, one of the most interesting amicus briefs that was filed in the case of Grants Pass was filed by the local shelter, the local rescue mission in Grants Pass, which stated since public camping was essentially authorized, we’ve experienced a 40 percent drop in demand for our shelter. So if you accommodate street living in a place with decent weather, people will, it turns out, take you up on that. And so, in rather predictable ways, homelessness did worsen since this, since the ninth circuit regime was put in place and then became just more and more tighter and more dominant.
[00:17:44] Joe Selvaggi: I can imagine some of our listeners saying, well, it sounds like you guys are completely, you lack any compassion for these homeless people. If they want to live outside and they think that’s better than living in a shelter, why not do that? Why do you need to fine and jail these people? Share with our listeners, what is life like? You kind of alluded to it earlier. If I live in an outdoor encampment versus a homeless shelter, how is my life different, better or worse?
[00:18:11] Stephen Eide: Well, certainly, you have no protection for other people who are trying to prey on you, and as it happens, there’s a lot of predatory behavior and victimization that happens in encampments in the West Goods. Very high rates of sexual assault, very high rates of just being robbed, and also violence. The There’s Clearly a close connection between the soaring rates of fatal overdoses and street homelessness.
[00:18:35] Homeless encampments are just known as places where it’s easy to find, uh, acquired drugs. Around the homeless encampments, the streets are notoriously covered in used needles and other drug paraphernalia. So if you’re in the market, that’s an easy place to find. What you’re looking for. Retail. America has this big, it’s really sad what’s been happening to retail in America over recent years.
[00:18:55] And that has a few factors, but store owners are absolutely up against it in West Coast communities when they have people just living on the sidewalk outside their storefront and they’re touring away what few customers. They have left. So, there’s been this kind of, with the normalization of encampment life, we’ve seen that’s coincided with increased criminal activity, in some ways, certainly, fatal overdoses, big impact on both residents and also businesses, and I haven’t even mentioned the fatal, sometimes, disease outbreaks, really weird, like medieval diseases.
[00:19:29] have been outbreaks in certain west coast encampments. People come by and they give people food and so then what happens to the trash? Well, it just sits out there so it attracts like rats and everything and so just imagine living next to one of these places and that’s been the reality for too many residents and businesses out west.
[00:19:47] Joe Selvaggi: Indeed, one doesn’t have to imagine. We’re going to talk about it in a bit. I’d like to ask you about Boston and our progress in this issue of mass and caste, these kinds of issues. But of course, I’m glad you point out the fact that it’s not merely a miserable place for the homeless, the homeless themselves living in these camps, but of course for retail, but of course residents.
[00:20:03] I imagine that somebody who’s a mobility impaired, they can’t get around the sidewalk, or children, my God, you know, if they’re, you know, what they may see and the impact that will have on them. In reading the Gorsuch, we’re going to get to the finding, and he makes many references to the fact that this is largely It references West Coast cities, West Coast problems.
[00:20:24] Those of us who live on the East Coast and the West Coast, we see sort of a similarity in, in our, let’s say, political preferences. Both cities and these states are skew left, more progressive leadership. Why is it that the West seems to wrestle with these homelessness issues? To a greater degree. We have it here in Boston and New York and Philly and DC, but why does it so bad? I’ll just throw out this statistic. I read that. Um, California is 10 percent of the country’s population and 30 percent of the country’s homeless population.
[00:20:52] Stephen Eide: What’s going on? Why? Yeah, half the street homeless population. Yeah, um, well, I mean, you know, the weather, there’s this connection between weather and also investment in shelter, meaning temporary, uh, housing.
[00:21:04] Um, you know, the more punishing January temperatures in places like Boston, Philadelphia, and New York seems to have an effect on keeping the lid on street homelessness. You have a significant homeless population in places like New York and Boston, but it doesn’t, uh, allow the street population to spread.
[00:21:24] There may also be a way in which there are just these kind of traditions of enforcement that lurk just slightly below the surface in these otherwise progressive cities. I mean, New York, even under de Blasio, who is a very progressive mayor, they were quite firm about not letting encampments spring up. Every time some little encampment sprang up, the New York Post coverage swarmed. That was done, um, in a couple of days. Um, there’s also a way in which the homelessness out in the West, it’s spread everywhere. It’s dispersed. It’s just, you know, you’ll see tents popping up in the most. Random places. Whereas the fact that Boston, you really had this controversy of this one place, Madison Cass, in New York City it’s also concentrated too in Manhattan and the subway system.
[00:22:07] You know, the beaches in Long Island or, you know, Martha’s Vineyard or something. You don’t have like people living there. California, that’s Something that does, you do see. So, it is a, it’s a different challenge. And then the last point to emphasize, and I touched on this earlier, you see more investment in, in shelter, temporary housing, although that, that, that relates to the weather issue because it’s harder to get people to go into shelter in the West Coast because you’re competing with California weather as opposed to Boston in January.
[00:22:37] Joe Selvaggi: Indeed, our curse is also our blessing with regard to this particular issue. So, let’s jump to the finding of the case we’ve mentioned a couple times. Grants passed, it was the majority was, opinion was written by Justice Gorsuch. It was a pretty long decision, I think it was 42 pages, and it seemed to my reading to show genuine compassion for the challenges of the homeless and a reluctance to sort of have the courts solve things.
[00:23:01] You’re the expert in homelessness. In reading that decision, I joked before we recorded that he must have read your book, but it seemed to me it was a well-informed decision. As an expert in homelessness, did the opinion, the majority opinion, reflect an informed view of homelessness?
[00:23:19] Stephen Eide: Yeah, I think so, you know, that he made, he used the term, like, you know, tool, the toolbox, that this is one tool among many.
[00:23:26] I’ve studied homelessness in a number of cities. I try to talk with service providers and people working on this issue on the ground as much as I can. And the normal situation is not to have law enforcement be the only solution. Like, it’s particularly in the West Coast where you’ve seen just historic investments.
[00:23:43] And homelessness programs, it’s not just, we’re not trying to wrest our way out of homelessness. That’s not what this is about, but whether or not police, law enforcement can be one tool in the toolbox, that’s an appropriate response to homelessness, especially given the complexity of the issue. And that is what the Ninth Circuit had denied me.
[00:24:03] denied municipalities. So that’s, I think, the right way to think about it, as well as whether or not judges have any kind of confidence to sort through whether or not there’s enough shelter in a particular jurisdiction is the also crucial issue that only the Supreme Court is going to be able to provide a definitive answer to.
[00:24:20] What we really need to get a clear answer to that, and I think we got it.
[00:24:24] Joe Selvaggi: I don’t want to pin you down on a particular illegal concept, but we talked about the basis for let’s say the Ninth Circuit view of Grants Pass saying that Grants Pass didn’t have the right to impose fines and jail on homeless.
[00:24:37] This decision overturns that decision. We said the earlier decision in the Ninth Circuit was rested on you don’t want to have cruel and unusual punishment or criminalize the status of homelessness. You don’t have to go too far down sort of legal analysis, but what did Gorsuch say regarding those two issues?
[00:24:55] Did he essentially say they don’t matter, or he’s, he believes that fines are not cruel and unusual, and that this doesn’t criminalize status, but rather the act of sleeping in public. What would you say?
[00:25:09] Stephen Eide: Yeah, I mean, he was specifically evaluating Grants Pass v. Johnson, though the Boise v. Martin ruling was in the mix, because the reasoning was almost exactly the same.
[00:25:18] Grants Pass was more about fines than Boise v. Martin, but very similar. He said that generally applicable public camping laws are fine, they don’t violate the Cruel and Unusual Punishments Clause, so that would also render Boise v. Martin type reasoning in question, because that was at the core of that decision for listening.
[00:25:38] Joe Selvaggi: So, the dissent was written by Justice Sotomayor. I guess this one, unfortunately, I don’t like to see those kinds of divisions, but it seemed to fall down along ideological lines left and right. We had six Republican appointed justices agreeing with Gorsuch in the majority and the three democratically appointed, Democrat appointed justices agreeing with joining Sotomayor’s, Justice Sotomayor’s dissent. What was her beef with the majority and what can you say about that?
[00:26:05] Stephen Eide: Yeah, I mean, and quickly on that partisan point, it is disappointing. The justice that I actually pay attention to somewhat in these splits is Justice Kagan. So if there’s anything, anyone left who may be considered the center left type, I think Justice Kagan sometimes has that reputation.
[00:26:19] So it would be interesting to me if she you. You know, cited more often with the conservatives, but yeah, we seem to be settling into this very strict liberal versus conservative split. And so you had these three democratic appointed justices who looked in from a political lens were far to the left of mainstream democratic opinion in California.
[00:26:37] I mean, far to the left of Gavin Newsom, the mayors of San Francisco and in LA on this issue. So it really tells you where the judiciary is at compared to what the political elected democratic class is at. I think, you know, she, she, she. Supported the Ninth Circuit’s reasoning that they’re just, this is an act that flows from a status, they can’t help it, it’s involuntary, where do you expect these people to live?
[00:27:04] What do you expect them to do? And so this is an argument that we’ve heard many advocates make in many different contexts. And, and she was persuaded by it.
[00:27:14] Joe Selvaggi: Yeah, indeed. And I’ll say, okay, from the, yeah, you say this is further to the left than even sort of the Gavin Newsom’s of the world. But I’ll say, I, to my, I don’t want to call them my right, but my libertarian friends were also somewhat uncomfortable with this decision because in their mind, you know, in this sort of It’s a battle between individual rights and the rights of the state.
[00:27:32] This seems to be resting some of the individual prerogatives to, frankly, sleep in public on the ground, versus the rights of the town to manage and mitigate those things. To my reckoning, though, by taking the power effectively away from the courts, And giving it to the states, that seems to be a step in the Democratic direction.
[00:27:50] Is that fair? I mean, you know, it’s not sort of a victory for the state, but it’s sort of a defeat for the courts to impose their priorities on individual towns and cities.
[00:28:01] Stephen Eide: Yeah, Justice Gorsuch was very clear that nothing in this ruling would prohibit a city from just accommodating public camping or accommodating in some place and not other places.
[00:28:10] It’s up to you.
[00:28:11] Joe Selvaggi: Right. I don’t want to just glaze over that point, because I think it’s very important to note this. If a town leader, a duly elected town mayor or whatever, wants to say, look, that’s great, now I have the prerogative to fine or put in jail people in homeless encampments, that It’s still my prerogative as a leader, elected leader, to let them, let it ride.
[00:28:32] You can, as a leader, allow encampments all you want. It says no bearing. It’s not a mandate to manage homelessness. It’s a prerogative to manage homelessness. Fair enough?
[00:28:43] Stephen Eide: Yeah, absolutely. And that’s what we’re going to see playing out. It’s also a question of resources. You know, you need The way that LA in particular does it, lots of police, lots of sanitation workers are required to the point where they actually have to ration cleanup resources, so whether or not they’re going to be re evaluating all that is something that we’ll have to watch.
[00:29:02] Joe Selvaggi: Okay, so let’s, we’ve been talking in general terms of what’s going on in Washington, D. C. or on the West Coast, but as you mentioned, last time we spoke, we were talking about, a little bit more about Boston. It was the height of COVID, but we had a lot of homeless people, everything, public policy was fairly chaotic then, and you mentioned a few times this phenomenon we have here in Boston, the homeless encampment on the intersection of Massachusetts Avenue and Melania Cass Boulevard, which we Affectionately referred to as Mass and Cass.
[00:29:30] It’s now two years later. You have been an observer of Boston and what’s been going on here. How would you report? How are we doing managing our encampments and effectively the safety of those Bostonians that are living such a dangerous life?
[00:29:46] Stephen Eide: Yes, well, I, I dipped in and out of the Massencast saga over the years, and I am not nearly as informed, particularly, I did drive through, I was visiting a, as I mentioned, I like to visit lots of service providers, and I happened this past January to be visiting a recovery program in that area.
[00:30:05] It’s called Phoenix, I believe. And so I drove through that intersection and was struck. Again, this was deep January, maybe not the best test time to look at it, but certainly looked a lot better than the pictures that I had seen from previous summers. Um, uh, I, I think that Boston now, although it was not in the Ninth Circuit, I can’t remember which circuit Boston’s in, but this, so this ruling never directly applied to Boston, I think very clearly any general counsel of any mayor anywhere in America is going to feel much more confident advising that particular mayor that we can take action before we’ve invested lavishly in him.
[00:30:50] All other sort of solution to address some behemoth encampment that the public is demanding action on. The Supreme Court has said, it’s okay, you can do this. So I think in a post Grants pass world, it’s more likely that mass and caste is not going to spiral out of control like it did during the deep COVID years.
[00:31:11] Joe Selvaggi: Again, you’ve anticipated my running out of time. My last, nearly last question is, now that this is the law of land, this decision was handed down the 28th of June, recording in July 3rd. Now that this has been handed down, you’ve mentioned, of course, Boston perhaps will see itself as having a freer hand.
[00:31:29] Do you think that these places that do have much larger population than Boston? Challenges with homelessness will, in a sense, pivot and more aggressively enforce public encampment rules now that this is the law of the land.
[00:31:44] Stephen Eide: Particularly with the tents. Yeah, the tent is just such an iconic image in California.
[00:31:50] There are a lot of other problems. I’ve been to California in, I’ve been to places in California post and encampment cleanup and there’s, it’s, they still can look rough around the edges. Drug decriminalization, the normalization of public drug use is something that California and Oregon, they’re very much debating right now.
[00:32:09] Okay, we don’t want to go back to like We don’t want, we want to draw back the use of incarceration for drug use, but at the same time, we don’t want to completely legalize or even decriminalize hard drugs. What does that mean for something like public drug use? So people like using fentanyl in your face in public.
[00:32:26] That is something that is related to the tent public camping issue, but it’s not legally speaking the same question. So, in a way, we might see more focus on those types of questions as publics in Western states continue to push for improvements in quality of life.
[00:32:41] Joe Selvaggi: Indeed, they’ll be able to better tailor their solutions to their particular problems and the particular problems of the individuals within those encampments who are taking those drugs.
[00:32:51] People have lost their way. So, we’ve run out of time. I read your most recent piece. I think it was released the same day as the ruling, almost the same day in the Wall Street Journal. I thought that was a terrific piece you wrote. Where can our listeners find your work or start following your writing on homelessness?
[00:33:06] Stephen Eide: Our website is manhattaninstitute. The Manhattan Institute for Policy Research.
[00:33:11] Joe Selvaggi: Wonderful. Okay, Stephen Eide from Manhattan Institute. I appreciate you for joining me on this issue so quickly after the decision. I’m glad. I think, I think the world got a little bit better. To be a little bit better placed with this ruling, I appreciate you coming in and helping our listeners understand the significance of what the majority found. Thank you for joining me.
[00:33:31] Stephen Eide: Thanks so much for having me, Joe.
[00:33:36] Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find us if you offer a five star rating or a favorable review.
[00:33:52] Of course, we’re grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re certainly welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.
Joe Selvaggi speaks with Manhattan Institute Senior Fellow Dr. Stephen Eide about the Grants Pass v. Johnson Supreme Court decision and its impact on homeless encampments in Boston and across the country.
Guest:
Stephen Eide is a senior fellow at the Manhattan Institute and contributing editor of City Journal. He researches social policy questions such as homelessness and mental illness. His first book, Homelessness in America: The History and Tragedy of an Intractable Social Problem, was published in June 2022. He was previously a senior research associate at the Worcester Regional Research Bureau. Eide holds a B.A. from St. John’s College in Santa Fe, New Mexico, and a Ph.D. in political philosophy from Boston College.
This week on The Learning Curve co-hosts U-Arkansas Prof. Albert Cheng and DFER’s Alisha Searcy interview Harlow Giles Unger, author of Lion of Liberty: Patrick Henry and the Call to a New Nation. Mr. Unger delves into the life of Patrick Henry as the country celebrates the Fourth of July. He explores Henry’s early life, his rise as a lawyer and political figure, and his fiery opposition to British policies. Mr. Unger highlights Henry’s famous “Give me liberty, or give me death!” speech and his influential role as governor of Virginia, underscoring his enduring legacy in helping forge American independence. In closing, he reads a passage from his book, Lion of Liberty: Patrick Henry and the Call to a New Nation. The Learning Curve team wishes everyone a safe and happy Fourth of July!
Stories of the Week: Albert discussed an article from AP News sharing how Oklahoma finds religious public schools unconstitutional; Alisha reviewed an article from Chalkbeat expressing teachers’ union frustrations with New York’s new reading curriculum.
Guest:
Harlow Giles Unger is an award-winning journalist, broadcaster, educator, and historian. A New York Times-bestselling author of more than 30 books, he is a former Distinguished Visiting Fellow in American History at George Washington’s Mount Vernon. Among his books, Lafayette won the American Revolution Round Table Book Prize and the Daughters of the American Revolution book award among others. His bestseller, The Last Founding Father: James Monroe and a Nation’s Call to Greatness, earned him the Washington Post designation as a “Premier Presidential Biographer.” Among his other books, include Lion of Liberty: Patrick Henry and the Call to a New Nation; John Marshall: The Chief Justice Who Saved the Nation; The Unexpected George Washington: His Private Life; Dr. Benjamin Rush: The Founding Father Who Healed a Wounded Nation; John Quincy Adams; and, most recently, Thomas Paine and the Clarion Call for American Independence. He is a graduate of Yale University.
Tweet of the Week:
Unemployment in Massachusetts by Race
/in Blog, Blog: Economy, Blog: Transparency, Economic Opportunity, Featured, News /by Dana DiChiroAccording to the 2020 census, Massachusetts had a population of 7,029,917 people, making it the 15th largest state by population. But in terms of geographical size, it is the seventh smallest. The densely populated Bay State, containing the major economic hub of Boston, continues to be an attractive destination for immigrants.
In fact, Massachusetts is one of the most diverse states in New England. According to the Census Bureau’s Diversity Index, Massachusetts trails only Connecticut in its diversity rating. The Diversity Index is a measure determining the likelihood of choosing from a random population group, and selecting individuals from different racial or ethnic backgrounds. It ranges from 0 to 100 percent, 0 being completely racially homogenous, and 100 being everyone belonging to a distinct ethnic group. The 2020 census determined that the DI of the United States was 61.1 percent. Massachusetts fell below this national average with a DI of 51.6 percent, ranking 26th out of the 50 states plus Washington D.C. However, it is important to recognize that the Bay State has diversified significantly since 2010, increasing its index by over 10 percentage points.
The population of Massachusetts in 2023 was majority white (72.7 percent), followed by Hispanic and Latino (11.6 percent), black and African Americans (8.2 percent), and the smallest percentage being Asian (7.6 percent). Now that there is an understanding of the racial composition of Massachusetts, let’s look at how unemployment has different effects on these groups.
According to Pioneer Institute’s LaborAnalytics, the unemployment rate in Massachusetts in 2023 for white individuals in the labor force, who make up 65 percent of all unemployed individuals, was 3.1 percent. For black or African Americans, the unemployment rate was 5.3 percent, and those individuals accounted for 12.6 percent of the unemployed population. For Hispanics or Latinos the UE rate was 4.6 percent, making up 14.7 percent of the unemployed population. Lastly, for Asians it was 3.5 percent and 7.7 percent of the total unemployed population. This demonstrates that minority populations are disproportionately more likely to be unemployed compared to their white counterparts in Massachusetts.
The difference may partially be explained by historical disadvantages for minorities in the labor force. Racial and ethnic minority groups, specifically blacks and African Americans and Hispanics and Latinos in Massachusetts face larger obstacles in terms of employment opportunities. These groups face higher unemployment rates than whites, and comprise a larger portion of the unemployed population in comparison to their composition of the entire civilian labor force of Massachusetts. The state has, and continues to, implement strategies to close the racial/ethnic unemployment gap, but it is clear that more needs to be done to completely solve this pressing issue.
Dana DiChiro is a Roger Perry Government Transparency Intern at the Pioneer Institute for Summer 2024. She is a rising senior studying Government & Politics and Economics at the University of Maryland, College Park.
Breaking Down Encampments: Court Finds no Right to Sleep Outdoors
/in Featured, News, Podcast Hubwonk /by Editorial StaffClick here to read a transcript
[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi.
[00:00:09] Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. As tent cities filled with homeless people have spread across urban communities in recent years, elected leaders have often passed the buck, claiming their hands were tied by a 9th U. S. Circuit Court of Appeals ruling which deemed prohibitions on homeless encampments as cruel and unusual punishment.
[00:00:28] This reluctance to enforce public encampment laws has forced communities to accommodate street homelessness. and the related issues of retail theft, human waste on sidewalks, sexual violence, and overdose deaths. But in the recently decided Supreme Court case, City of Grants Pass v. Johnson, Justice Neil Gorsuch’s majority opinion made it clear that ordinances that levied fines for public camping were not enough.
[00:00:50] Wouldn’t strike most Americans as cruel, but a three justice minority disagreed, asserting that the decision to impose fines and potential jail time for those sleeping in public places effectively criminalizes the status of being homeless, thus prosecuting Americans for who they are rather than what they have done.
[00:01:08] How has the divided view of homelessness in our courts played a role in the rise of public encampments? And what effect is the Grants Pass decision likely to have? on Public Policy Makers Going Forward. My guest today is Manhattan Institute Senior Fellow and author of Homelessness in America, the History and Tragedy of an Intractable Social Problem, Dr.
[00:01:28] Stephen Eide. Dr. Eide has written extensively on the challenges of homelessness, including those imposed on municipal leadership by federal courts. He will share with us the current trajectory of homelessness in the U. S. and explain how the recent Supreme Court decision to permit local enforcement against public encampments will affect the homelessness.
[00:01:47] and our communities at large. When I return, I’ll be joined by Manhattan Institute’s Senior Fellow, Dr. Stephen Eide.
[00:02:04] Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by Senior Fellow at the Manhattan Institute, Dr. Stephen Eide. Welcome back to Hubwonk, Stephen.
[00:02:14] Stephen Eide: Thanks so much for having me, Joe.
[00:02:16] Joe Selvaggi: Great. Well, the last time you were here, I just looked it up. It was just about exactly two years ago, and we were talking about the observations you made in your recently, then recently released book entitled Homelessness in America, the History and Tragedy of an Intractable Social Program.
[00:02:31] I learned a lot in our conversation about the causes and potential solutions for homelessness, but today we’re going to talk about a recent Supreme Court ruling. A decision Grants Pass v. Johnson, but before we dive into the issues of that case and its relationship to homelessness policy, let’s just retouch on the homelessness issue now two years later. What is the landscape of homelessness in the United States as you see it right now?
[00:02:55] Stephen Eide: Well, I think we’ve pushed out of the COVID era, which created lots of complications and homelessness in so many areas of American life. We’re beginning to reconcile ourselves to the idea that homelessness in the 2020s is probably at least as challenging as it was in 2010s.
[00:03:13] Um, so normalcy, if you will, has er Arrived, but that’s a grim prospect, the numbers are up, and so we’re trying to decide are we going to be re litigating the old debates that left us kind of stonewalled, or is there possibility for some breakthroughs here and there?
[00:03:29] Joe Selvaggi: Well, indeed, I think we may have had a breakthrough last week with a Supreme Court decision, we’re going to be talking about that decision, called Grants Pass v. Johnson, and it really relates to a town, a small town in Southern California. Oregon or Washington?
[00:03:43] Stephen Eide: Southwestern Oregon.
[00:03:43] Joe Selvaggi: Yeah. And which they were dealing with homelessness. If you will, again, I’m not presenting you as a constitutional scholar, but rather one who I’m sure followed this case very carefully. What would be, in broad strokes, what are the details of the case?
[00:03:56] Stephen Eide: Yes, well, Grants Pass is this little city that had in its code, you know, its ordinances, on the books, laws prohibiting camping in public, basically, and those laws were struck down by the Ninth Circuit Court of Appeals, which has jurisdiction over the nine western states, and their argument was that those laws violated the Eighth Amendment’s Prohibition on Cruel and Unusual Punishments, that is, The 9th Circuit ruled that it was illegal for Grants Pass or any other municipality in that jurisdiction to ban camping in public if it’s not providing some other alternative to sleeping in public. That amounted to criminal, unusual, and punishment, and as a result, in the wake of that ruling, and really in the wake of prior similar rulings, municipalities really felt kind of paralyzed as to what it could do to address this big problem of street homelessness out West.
[00:04:43] Joe Selvaggi: Indeed, so we have the courts hamstringing the, uh, the municipality’s ability to deal with homelessness based on the fact that one is homeless and to give them a fine or lock them up is cruel and unusual. As you mentioned, it first faced a federal district court and then to the Ninth Circuit Court of Appeals, so it was a big case. I don’t want to put words in your mouth, but did this victory, at least at that level, at the lower courts, effectively establish a right to sleep in public?
[00:05:07] Stephen Eide: Well, that was certainly what many localities said.
[00:05:11] One thing that was striking about this case is how many governments filed amicus briefs with the court, urging them to take up the case, and after it took up the case, claiming that this was just unworkable. Officially, the 9th Circuit said, well, if you provide adequate shelter, you can still enforce the laws.
[00:05:28] All these governments, and I stress this is the West Coast, so these are Democrats, right? So, Governor Gavin Newsom, the mayors of Los Angeles, San Francisco, we’re all saying we cannot respond to our constituents demand that we address homelessness under this legal regime that the Ninth Circuit has put in place.
[00:05:45] In practice, that’s what they were saying. We are paralyzed. You seem to be saying that people just have a right to sleep in public wherever they want. We’ve invested, you know, hundreds of millions of dollars, billions in homeless services. You’re effectively saying that’s not enough. What would be enough? Are we just supposed to go bankrupt on the way to providing enough shelter and housing for people so we can enforce our laws? In practice, yes, that was the result, and that’s why the Supreme Court ultimately just had to get involved here.
[00:06:11] Joe Selvaggi: All right, but let’s dwell on the past and say, okay, we arrived here at an inflection point, but to get here, what is it about the notion of the Eighth Amendment prohibition against cruel and unusual punishment? What precedent was it that set this idea that the court to essentially fine someone for being homeless, while being homeless, for the act of being homeless? Why is that cruel and unusual? What is it about that?
[00:06:36] Stephen Eide: Yeah, well, there were these cases early in the 60s, Robinson v. California, which is the important one, that pertain to a law that California had on the books about prohibiting being addiction. It’s illegal to be addicted to drugs. And the court, that time, said, you can’t do that. That is a status, and you can’t criminalize a status. If you had criminalized using drugs, that’s okay. Possessing drugs, that’s okay. Those are acts, but you cannot criminalize a status. And the court then, in another ruling, tried, some people tried to push to extend that rationale to acts that flow from a status.
[00:07:14] This particular case was Powell v Texas, and it concerned a guy who was Said he had, he was an alcoholic, so he had to drink and he had to do it in public, but this, the court actually struck, ruled against him in that favor. Those were the big cases. These are, these are ancient cases, like no Americans know about them, and certainly people on the West Coast have no idea how much Robinson v California and Powell v. Texas has to do with their quality of life. Those were specifically the ideas, the doctrines, the rulings that were really at the core of this case, Chris Pesce Johnson.
[00:07:46] Joe Selvaggi: So, okay, so this is probably a difficult concept for our listeners to process, which is one cannot constitutionally make someone’s status illegal, I don’t know, being too tall or something, some immutable characteristic about an individual. But, of course, we can criminalize acts, and that line between what’s status and what’s an act is a fine one. As you mentioned, if you’re an alcoholic, you can criminalize drinking in public, but you can’t criminalize being a drunk or whatever euphemism we want to use. So, in this case, the parallel here then, of course, is homelessness.
[00:08:18] There’s a difference between one who doesn’t have a home, that’s their status, and one who sleeps outside in a, you know, in a car, right? In a sense, that’s an act. They’re not being prosecuted for lack of a home, but rather for sleeping outdoors. Do you want to say more about where that line has historically been drawn or anything more about that?
[00:08:36] Stephen Eide: Well, I mean, if I can get into a little bit how Justice Gorsuch, Thought about this. He wrote the majority opinion because I think it helps clarify this argument. He really did not like the, there’s this, he flirted with the idea that maybe Robinson Valley, California was not a great idea to begin with.
[00:08:51] And in fact, Justice Thomas wrote a separate opinion claiming just that. But Justice Gore said, okay, just working with this, the Cruel and Unusual Punishments Clause is supposed to be about punishments. What comes after Someone breaks the law. It’s not supposed to be about whether or not a specific law can be in the books.
[00:09:10] We have other constitutional provisions that determine whether something can be criminalized at all. The First Amendment, the Fourteenth Amendment, Eighth Amendment are really just about punishment. So what we really need to be thinking about in this case is whether these punishments, these fines, and being barred from parks if you’re caught repeatedly, Camping in public places in Grants Pass, is that a constitutional violation?
[00:09:32] And he really did not like the idea, he thought it would just expand it in all kinds of dangerous directions, and that’s why he wanted to really keep the lid on things and overrule the Ninth Circuit’s rulings.
[00:09:43] Joe Selvaggi: Really, again, I think Justice Gorsuch, and we’ll get to that a little later, probably sees the world a little bit more like the way you, or perhaps I do, and less like the way the precedent in the Robinson case, but I want to unpack this idea.
[00:09:55] If I’m homeless, how I want to make the case that it’s a necessity, it’s involuntary in a sense, it’s a necessity. I’d love to have a home, but I can’t. I wish I could, but I don’t. How do we, in a sense, or how has the courts, or how have municipalities defined the necessity of homelessness? Rather, one can voluntarily choose to be homeless, and one’s less sympathetic to those people.
[00:10:15] And your book very clearly says there’s no one group called homeless. There’s all of them. A myriad of reasons why someone is homeless. Let’s just take this argument at face value. If I wish I could find a shelter and there’s not enough room in the shelter, doesn’t that make me involuntarily homeless and therefore, in a sense, I, out of necessity, need to be a homeless person?
[00:10:34] Stephen Eide: Well, in principle, I suppose, but it’s This is where I think the perspective of these cities and municipalities kind of is helpful to bring in because they’re saying like, I don’t know what any of these people’s story is, okay? The difference between whether or not that particular case you laid out applies to 30 people versus whether it applies to 600 people is huge from my perspective to provide for people.
[00:10:59] Uh, I don’t know if it’s practical for me to do a sort of, you know, Take testimony from every single person who is in homeless to do some sort of evaluation before I decide whether or not I can force a law against them. People have all kinds of stories. Some people are local, some people are not. Some people have family members that they could live with under certain conditions.
[00:11:19] Some people just have no options whatsoever. The government is just going to have to provide for them for the rest of their life. Certainly, it is impractical for courts to be involved in making those decisions. It’s hard enough for municipalities. to be involved. This came up in this particular scenario that you question that you’re honing in on came up the question of whether or not this should be even a class action matter because some of the people the plaintiffs who were involved in this case or past cases such as the Boise v. Martin case Which is another night in a certain case that was very similar. They weren’t residents of the community. They were, they came into the community here and there. And yet they were suing this particular community based upon the unconstitutionality of their ordinances. So on the ground, this is obviously very complicated.
[00:12:03] This is messy to sort through. But as a result, one might argue that it’s just that type of issue that localities should be really empowered to address through the normal democratic process without federal court oversight.
[00:12:17] Joe Selvaggi: Yeah, and one of the things I was getting at, again, what I read about and looking at the history of this, digging more deeply, is there was a defense saying, as you mentioned, 600 homeless people in a town, if there’s only 570 beds, in theory, 30 people don’t have homes if they wanted them.
[00:12:32] Ergo, everybody’s homeless involuntarily. So, it confers a status to everyone, regardless of how each individual person is perceived. Arrived at their lack of a home. What I’ve read is that because of this lack of enforcement, and we’re going to talk about more about this later, in those towns where it was deemed, let’s say, beyond the reach of municipal leaders to essentially fine or jail people sleeping in homeless in public because they were entitled to these homeless camps, the homeless shelters emptied out and more people, potentially the effect was to have everybody run out and live on the streets.
[00:13:08] You’re an expert in this area. Why would someone choose to be homeless when there’s shelters available? You know, this is maybe not germane to legal issue, but you’re the expert in homelessness. Why would that happen?
[00:13:22] Stephen Eide: I’ll give all kinds of reasons. Um, pet ownership has become more normalized among the homes.
[00:13:28] My impression is that back in the 80s, you didn’t see as many homeless people with pets, and somewhere between then and now, it just became the thing to do. And this is not a good idea. For many reasons, your upward mobility options are going to be really unlimited. Nonetheless, they’re very insistent about their pets.
[00:13:44] This creates all kinds of problems for shelter management, not just keeping everyone from being at each other’s throats if there are like all kinds of pets involved, who’s looking after these dogs, but that’s one thing they will insist on. Sometimes they will say, well, I want to be with my partners. And homeless, when you’re running in shelter management, another shelter management one on one question, you kind of need to keep males separate from females and certainly single adults separate from families, but then they’ll say, no, we got to be sheltered together.
[00:14:10] And if there’s no option like that, and in many communities with just like one shelter or something, that’s not going to be an option, okay, I’ve got to sleep out. They will say, I’m not, I don’t feel safe inside a shelter, even though, just objectively speaking, you will always be safer inside a shelter than on the streets where you have no protection whatsoever.
[00:14:27] And then all kinds of mental health issues. Things people will cite. Serious mental illness and homelessness, that is a very important issue, very important connection there, but vaguer mental, well, I just need privacy. I can’t sleep in a big room with a bunch of other guys in bunk beds. I need my other room, otherwise, deal breaker.
[00:14:42] So there’s really a whole litany of reasons that Why people say, I need this shelter of this specification, this points towards what would be just absolute unaffordability in terms of cost for a city like Grants Pass. 40, 000 people can’t build a shelter program for every single person. So, this is policy.
[00:15:01] We have to work in generalities. We can’t wait to satisfy everyone, every last person’s shelter specifications until we can begin to force common sense into encampment ordinances.
[00:15:11] Joe Selvaggi: Yeah, and to talk about, further about the blurry line of what is a homeless person, people sleeping outside where they shouldn’t be even includes very different groups with different motivation, even campus protesters. Can’t some of the logic in these earlier decisions even extend to them? In other words, if one can sleep outside for any reason, then that includes being a student protester. Is that fair?
[00:15:33] Stephen Eide: Well, another person who the case of student protesters was on his mind was Justice Gorsuch, who specifically cited that case in his opinion, and that was why he said Grants Pass’s ordinances are not, they don’t criminalize status because they could apply to people with all kinds of different statuses, including backpackers and campus protesters. So, absolutely, that would apply as well.
[00:15:56] Joe Selvaggi: Yeah, so again, I alluded to it a little bit earlier, but you’ve talked as a homelessness expert, you’ve seen sort of the evolution, you made a reference to the impact of COVID, we talked about that in our last conversation, but you’ve seen sort of the long arc of homelessness rise and fall, as it were. What has been the effect of, let’s say, the precedent of essentially the courts forbidding municipal governments from clearing these encampments? To date, you know, does it have the effect of stabilizing homelessness or does it make it shrink or grow by hamstringing municipalities from clearing them away?
[00:16:35] Stephen Eide: Yes, well, there was this, as I alluded to earlier, there was this very similar decision the 9th Circuit handed down called Boise v. Martin that came down in 2018. Since 2018, in the 9th Circuit, in the 9 states in the 9th Circuit, homelessness and street homelessness increased 40%. So, it got way worse by any objective measure, and just talking to people who live in California, if you ask them.
[00:16:56] So, as street homelessness got worse, or, no one would say street homelessness got better in California over the past 10 years. Five years. So there was that. There was also that factor of the declining interest in, in shelter, declining shelter demand. As you noted, one of the most interesting amicus briefs that was filed in the case of Grants Pass was filed by the local shelter, the local rescue mission in Grants Pass, which stated since public camping was essentially authorized, we’ve experienced a 40 percent drop in demand for our shelter. So if you accommodate street living in a place with decent weather, people will, it turns out, take you up on that. And so, in rather predictable ways, homelessness did worsen since this, since the ninth circuit regime was put in place and then became just more and more tighter and more dominant.
[00:17:44] Joe Selvaggi: I can imagine some of our listeners saying, well, it sounds like you guys are completely, you lack any compassion for these homeless people. If they want to live outside and they think that’s better than living in a shelter, why not do that? Why do you need to fine and jail these people? Share with our listeners, what is life like? You kind of alluded to it earlier. If I live in an outdoor encampment versus a homeless shelter, how is my life different, better or worse?
[00:18:11] Stephen Eide: Well, certainly, you have no protection for other people who are trying to prey on you, and as it happens, there’s a lot of predatory behavior and victimization that happens in encampments in the West Goods. Very high rates of sexual assault, very high rates of just being robbed, and also violence. The There’s Clearly a close connection between the soaring rates of fatal overdoses and street homelessness.
[00:18:35] Homeless encampments are just known as places where it’s easy to find, uh, acquired drugs. Around the homeless encampments, the streets are notoriously covered in used needles and other drug paraphernalia. So if you’re in the market, that’s an easy place to find. What you’re looking for. Retail. America has this big, it’s really sad what’s been happening to retail in America over recent years.
[00:18:55] And that has a few factors, but store owners are absolutely up against it in West Coast communities when they have people just living on the sidewalk outside their storefront and they’re touring away what few customers. They have left. So, there’s been this kind of, with the normalization of encampment life, we’ve seen that’s coincided with increased criminal activity, in some ways, certainly, fatal overdoses, big impact on both residents and also businesses, and I haven’t even mentioned the fatal, sometimes, disease outbreaks, really weird, like medieval diseases.
[00:19:29] have been outbreaks in certain west coast encampments. People come by and they give people food and so then what happens to the trash? Well, it just sits out there so it attracts like rats and everything and so just imagine living next to one of these places and that’s been the reality for too many residents and businesses out west.
[00:19:47] Joe Selvaggi: Indeed, one doesn’t have to imagine. We’re going to talk about it in a bit. I’d like to ask you about Boston and our progress in this issue of mass and caste, these kinds of issues. But of course, I’m glad you point out the fact that it’s not merely a miserable place for the homeless, the homeless themselves living in these camps, but of course for retail, but of course residents.
[00:20:03] I imagine that somebody who’s a mobility impaired, they can’t get around the sidewalk, or children, my God, you know, if they’re, you know, what they may see and the impact that will have on them. In reading the Gorsuch, we’re going to get to the finding, and he makes many references to the fact that this is largely It references West Coast cities, West Coast problems.
[00:20:24] Those of us who live on the East Coast and the West Coast, we see sort of a similarity in, in our, let’s say, political preferences. Both cities and these states are skew left, more progressive leadership. Why is it that the West seems to wrestle with these homelessness issues? To a greater degree. We have it here in Boston and New York and Philly and DC, but why does it so bad? I’ll just throw out this statistic. I read that. Um, California is 10 percent of the country’s population and 30 percent of the country’s homeless population.
[00:20:52] Stephen Eide: What’s going on? Why? Yeah, half the street homeless population. Yeah, um, well, I mean, you know, the weather, there’s this connection between weather and also investment in shelter, meaning temporary, uh, housing.
[00:21:04] Um, you know, the more punishing January temperatures in places like Boston, Philadelphia, and New York seems to have an effect on keeping the lid on street homelessness. You have a significant homeless population in places like New York and Boston, but it doesn’t, uh, allow the street population to spread.
[00:21:24] There may also be a way in which there are just these kind of traditions of enforcement that lurk just slightly below the surface in these otherwise progressive cities. I mean, New York, even under de Blasio, who is a very progressive mayor, they were quite firm about not letting encampments spring up. Every time some little encampment sprang up, the New York Post coverage swarmed. That was done, um, in a couple of days. Um, there’s also a way in which the homelessness out in the West, it’s spread everywhere. It’s dispersed. It’s just, you know, you’ll see tents popping up in the most. Random places. Whereas the fact that Boston, you really had this controversy of this one place, Madison Cass, in New York City it’s also concentrated too in Manhattan and the subway system.
[00:22:07] You know, the beaches in Long Island or, you know, Martha’s Vineyard or something. You don’t have like people living there. California, that’s Something that does, you do see. So, it is a, it’s a different challenge. And then the last point to emphasize, and I touched on this earlier, you see more investment in, in shelter, temporary housing, although that, that, that relates to the weather issue because it’s harder to get people to go into shelter in the West Coast because you’re competing with California weather as opposed to Boston in January.
[00:22:37] Joe Selvaggi: Indeed, our curse is also our blessing with regard to this particular issue. So, let’s jump to the finding of the case we’ve mentioned a couple times. Grants passed, it was the majority was, opinion was written by Justice Gorsuch. It was a pretty long decision, I think it was 42 pages, and it seemed to my reading to show genuine compassion for the challenges of the homeless and a reluctance to sort of have the courts solve things.
[00:23:01] You’re the expert in homelessness. In reading that decision, I joked before we recorded that he must have read your book, but it seemed to me it was a well-informed decision. As an expert in homelessness, did the opinion, the majority opinion, reflect an informed view of homelessness?
[00:23:19] Stephen Eide: Yeah, I think so, you know, that he made, he used the term, like, you know, tool, the toolbox, that this is one tool among many.
[00:23:26] I’ve studied homelessness in a number of cities. I try to talk with service providers and people working on this issue on the ground as much as I can. And the normal situation is not to have law enforcement be the only solution. Like, it’s particularly in the West Coast where you’ve seen just historic investments.
[00:23:43] And homelessness programs, it’s not just, we’re not trying to wrest our way out of homelessness. That’s not what this is about, but whether or not police, law enforcement can be one tool in the toolbox, that’s an appropriate response to homelessness, especially given the complexity of the issue. And that is what the Ninth Circuit had denied me.
[00:24:03] denied municipalities. So that’s, I think, the right way to think about it, as well as whether or not judges have any kind of confidence to sort through whether or not there’s enough shelter in a particular jurisdiction is the also crucial issue that only the Supreme Court is going to be able to provide a definitive answer to.
[00:24:20] What we really need to get a clear answer to that, and I think we got it.
[00:24:24] Joe Selvaggi: I don’t want to pin you down on a particular illegal concept, but we talked about the basis for let’s say the Ninth Circuit view of Grants Pass saying that Grants Pass didn’t have the right to impose fines and jail on homeless.
[00:24:37] This decision overturns that decision. We said the earlier decision in the Ninth Circuit was rested on you don’t want to have cruel and unusual punishment or criminalize the status of homelessness. You don’t have to go too far down sort of legal analysis, but what did Gorsuch say regarding those two issues?
[00:24:55] Did he essentially say they don’t matter, or he’s, he believes that fines are not cruel and unusual, and that this doesn’t criminalize status, but rather the act of sleeping in public. What would you say?
[00:25:09] Stephen Eide: Yeah, I mean, he was specifically evaluating Grants Pass v. Johnson, though the Boise v. Martin ruling was in the mix, because the reasoning was almost exactly the same.
[00:25:18] Grants Pass was more about fines than Boise v. Martin, but very similar. He said that generally applicable public camping laws are fine, they don’t violate the Cruel and Unusual Punishments Clause, so that would also render Boise v. Martin type reasoning in question, because that was at the core of that decision for listening.
[00:25:38] Joe Selvaggi: So, the dissent was written by Justice Sotomayor. I guess this one, unfortunately, I don’t like to see those kinds of divisions, but it seemed to fall down along ideological lines left and right. We had six Republican appointed justices agreeing with Gorsuch in the majority and the three democratically appointed, Democrat appointed justices agreeing with joining Sotomayor’s, Justice Sotomayor’s dissent. What was her beef with the majority and what can you say about that?
[00:26:05] Stephen Eide: Yeah, I mean, and quickly on that partisan point, it is disappointing. The justice that I actually pay attention to somewhat in these splits is Justice Kagan. So if there’s anything, anyone left who may be considered the center left type, I think Justice Kagan sometimes has that reputation.
[00:26:19] So it would be interesting to me if she you. You know, cited more often with the conservatives, but yeah, we seem to be settling into this very strict liberal versus conservative split. And so you had these three democratic appointed justices who looked in from a political lens were far to the left of mainstream democratic opinion in California.
[00:26:37] I mean, far to the left of Gavin Newsom, the mayors of San Francisco and in LA on this issue. So it really tells you where the judiciary is at compared to what the political elected democratic class is at. I think, you know, she, she, she. Supported the Ninth Circuit’s reasoning that they’re just, this is an act that flows from a status, they can’t help it, it’s involuntary, where do you expect these people to live?
[00:27:04] What do you expect them to do? And so this is an argument that we’ve heard many advocates make in many different contexts. And, and she was persuaded by it.
[00:27:14] Joe Selvaggi: Yeah, indeed. And I’ll say, okay, from the, yeah, you say this is further to the left than even sort of the Gavin Newsom’s of the world. But I’ll say, I, to my, I don’t want to call them my right, but my libertarian friends were also somewhat uncomfortable with this decision because in their mind, you know, in this sort of It’s a battle between individual rights and the rights of the state.
[00:27:32] This seems to be resting some of the individual prerogatives to, frankly, sleep in public on the ground, versus the rights of the town to manage and mitigate those things. To my reckoning, though, by taking the power effectively away from the courts, And giving it to the states, that seems to be a step in the Democratic direction.
[00:27:50] Is that fair? I mean, you know, it’s not sort of a victory for the state, but it’s sort of a defeat for the courts to impose their priorities on individual towns and cities.
[00:28:01] Stephen Eide: Yeah, Justice Gorsuch was very clear that nothing in this ruling would prohibit a city from just accommodating public camping or accommodating in some place and not other places.
[00:28:10] It’s up to you.
[00:28:11] Joe Selvaggi: Right. I don’t want to just glaze over that point, because I think it’s very important to note this. If a town leader, a duly elected town mayor or whatever, wants to say, look, that’s great, now I have the prerogative to fine or put in jail people in homeless encampments, that It’s still my prerogative as a leader, elected leader, to let them, let it ride.
[00:28:32] You can, as a leader, allow encampments all you want. It says no bearing. It’s not a mandate to manage homelessness. It’s a prerogative to manage homelessness. Fair enough?
[00:28:43] Stephen Eide: Yeah, absolutely. And that’s what we’re going to see playing out. It’s also a question of resources. You know, you need The way that LA in particular does it, lots of police, lots of sanitation workers are required to the point where they actually have to ration cleanup resources, so whether or not they’re going to be re evaluating all that is something that we’ll have to watch.
[00:29:02] Joe Selvaggi: Okay, so let’s, we’ve been talking in general terms of what’s going on in Washington, D. C. or on the West Coast, but as you mentioned, last time we spoke, we were talking about, a little bit more about Boston. It was the height of COVID, but we had a lot of homeless people, everything, public policy was fairly chaotic then, and you mentioned a few times this phenomenon we have here in Boston, the homeless encampment on the intersection of Massachusetts Avenue and Melania Cass Boulevard, which we Affectionately referred to as Mass and Cass.
[00:29:30] It’s now two years later. You have been an observer of Boston and what’s been going on here. How would you report? How are we doing managing our encampments and effectively the safety of those Bostonians that are living such a dangerous life?
[00:29:46] Stephen Eide: Yes, well, I, I dipped in and out of the Massencast saga over the years, and I am not nearly as informed, particularly, I did drive through, I was visiting a, as I mentioned, I like to visit lots of service providers, and I happened this past January to be visiting a recovery program in that area.
[00:30:05] It’s called Phoenix, I believe. And so I drove through that intersection and was struck. Again, this was deep January, maybe not the best test time to look at it, but certainly looked a lot better than the pictures that I had seen from previous summers. Um, uh, I, I think that Boston now, although it was not in the Ninth Circuit, I can’t remember which circuit Boston’s in, but this, so this ruling never directly applied to Boston, I think very clearly any general counsel of any mayor anywhere in America is going to feel much more confident advising that particular mayor that we can take action before we’ve invested lavishly in him.
[00:30:50] All other sort of solution to address some behemoth encampment that the public is demanding action on. The Supreme Court has said, it’s okay, you can do this. So I think in a post Grants pass world, it’s more likely that mass and caste is not going to spiral out of control like it did during the deep COVID years.
[00:31:11] Joe Selvaggi: Again, you’ve anticipated my running out of time. My last, nearly last question is, now that this is the law of land, this decision was handed down the 28th of June, recording in July 3rd. Now that this has been handed down, you’ve mentioned, of course, Boston perhaps will see itself as having a freer hand.
[00:31:29] Do you think that these places that do have much larger population than Boston? Challenges with homelessness will, in a sense, pivot and more aggressively enforce public encampment rules now that this is the law of the land.
[00:31:44] Stephen Eide: Particularly with the tents. Yeah, the tent is just such an iconic image in California.
[00:31:50] There are a lot of other problems. I’ve been to California in, I’ve been to places in California post and encampment cleanup and there’s, it’s, they still can look rough around the edges. Drug decriminalization, the normalization of public drug use is something that California and Oregon, they’re very much debating right now.
[00:32:09] Okay, we don’t want to go back to like We don’t want, we want to draw back the use of incarceration for drug use, but at the same time, we don’t want to completely legalize or even decriminalize hard drugs. What does that mean for something like public drug use? So people like using fentanyl in your face in public.
[00:32:26] That is something that is related to the tent public camping issue, but it’s not legally speaking the same question. So, in a way, we might see more focus on those types of questions as publics in Western states continue to push for improvements in quality of life.
[00:32:41] Joe Selvaggi: Indeed, they’ll be able to better tailor their solutions to their particular problems and the particular problems of the individuals within those encampments who are taking those drugs.
[00:32:51] People have lost their way. So, we’ve run out of time. I read your most recent piece. I think it was released the same day as the ruling, almost the same day in the Wall Street Journal. I thought that was a terrific piece you wrote. Where can our listeners find your work or start following your writing on homelessness?
[00:33:06] Stephen Eide: Our website is manhattaninstitute. The Manhattan Institute for Policy Research.
[00:33:11] Joe Selvaggi: Wonderful. Okay, Stephen Eide from Manhattan Institute. I appreciate you for joining me on this issue so quickly after the decision. I’m glad. I think, I think the world got a little bit better. To be a little bit better placed with this ruling, I appreciate you coming in and helping our listeners understand the significance of what the majority found. Thank you for joining me.
[00:33:31] Stephen Eide: Thanks so much for having me, Joe.
[00:33:36] Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find us if you offer a five star rating or a favorable review.
[00:33:52] Of course, we’re grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re certainly welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.
Joe Selvaggi speaks with Manhattan Institute Senior Fellow Dr. Stephen Eide about the Grants Pass v. Johnson Supreme Court decision and its impact on homeless encampments in Boston and across the country.
Guest:
Harlow Giles Unger on Patrick Henry & American Liberty
/in Featured, Learning Curve, News, Podcast /by Editorial StaffRead a transcript
The Learning Curve Harlow Giles Unger
[00:00:00] Alisha Searcy: Welcome back to the Learning Curve podcast. I’m your host this week, Alisha Thomas Searcy and joined by my friend, Albert Cheng. Hey, Albert, how are you?
[00:00:30] Albert Cheng: Hey, Alisha. I’m doing well. Hope you’re doing well too. Happy 4th.
[00:00:34] Alisha Searcy: I am doing great and happy 4th. I’m actually in Boston for the National Alliance for Public Charter Schools conference.
[00:00:41] Albert Cheng: Oh, great. Great.
[00:00:42] Alisha Searcy: So that’s been fun this week, but I’m looking forward to our show today. I want to jump right into the stories of the week. And mine comes from Chalkbeat, New York. The title is Randy Weingarten says teachers are frustrated with New York City’s reading curriculum mandate. So, as we all know, Randy Weingarten is the president of the American Federation of Teachers.
[00:01:06] She’s been in that role for quite a few years and very well known in terms of union leadership. And so, this is an interesting story for me because as everyone knows, the science of reading is the approach that we should be using across the country to teach reading and literacy in our classrooms. It started in other places, but Mississippi is kind of known now for the leader and we call it affectionately the Mississippi miracle.
[00:01:33] And so other states are kind of joining in and I’m happy to see this. What’s interesting about this story. is you have the teacher union president, a national one, expressing frustration about the implementation of the curriculum in New York City. Now, number one, the local union in New York City is actually supportive of these mandates, supportive of the training that’s happening.
[00:01:58] And so, it’s an interesting break that she’s not In alignment with her own local union. So that’s one of the first things that I find politically interesting. I do think that there’s some important points that we should take from this article, though, that if teachers are having concerns about how it’s being rolled out, we should listen.
[00:02:20] Because these are the folks, you know, on the ground who are having to implement new standards, new curriculum, and we want them to be trained well and trained effectively so that they can do this. I think if you’re following what’s happening in Mississippi, they’ve had these huge gains in terms of reading proficiency at the elementary level in particular.
[00:02:38] But largely because they’ve made the investment not just financially, but also in terms of making sure that teachers are properly and effectively trained. And so, if teachers are saying this is not working, I think, you know, we ought to listen, but there are two quick points that I want to make here. One of the things that Randy Weingarten has said in one of her previous interviews is that the choices of curriculum have been terrible.
[00:03:02] Again, not something that you want the National Teacher Union president to be saying, and certainly not in alignment with what the local union is saying. And so, at the end of the day, we know that the science of reading is important. It’s critical, I would argue. I think that all States and school districts need to think about not just ensuring that there’s an effective rolling out of this curriculum, but that we go back to teacher preparation training programs and ensure that the training is done there.
[00:03:34] So that teachers are learning in their very infancy of their teaching career, how to teach reading, right? So that we’re not depending on school districts right now for teachers who are in their 15th year of teaching to now learn how to teach students how to read. So, this is an important piece. What I want people to take away is the science of reading is important.
[00:03:55] We know because it is research based that it’s effective. It’s going to make sure that our kids can read, and we know that nationally our reading proficiency level for third and fourth graders is well below 50 percent. That is unacceptable. This is a way that we can address this, and we need Ms.
[00:04:12] Weingarten and others to kind of get on board and make sure that you’re speaking effectively about the rights and the wrongs of this but ensure that all districts and states are rolling this out effectively.
[00:04:24] Albert Cheng: Yeah, it reminds me of the Tweet of the week, I don’t know if it was last week, a couple of weeks ago, we featured an article about some schools experience rolling out some of the new curriculum that’s consistent with the science of reading, and yeah, implementation is always that X factor there with any policy idea and program we implement.
[00:04:42] We want to implement and we really got to get that right and I think you make a great point about needing to really attend to the even, you know, teacher training and changing institutions and it seems like to make a generational shift really in how we train our teachers to teach reading, so. Well, I hope these efforts are successful and these are the things that keep me up at night, you know, you got a good idea with good evidence, and it just gets undermined by the potential for it to be undermined at the implementation stage is always a tough challenge.
[00:05:13] Alisha Searcy: You’re right. You said it very well. Thank you.
[00:05:16] Albert Cheng: You mentioned you are at the National Alliance for Public Charter School Conference right now. Yes. Yeah. So, uh, you know, I guess I got a hot topic in the charter school world. I know this is not a new story, but there’s, it’s a new development in an old story.
[00:05:30] I think you’re probably aware, and I know a lot of folks that you’re probably hanging out with this week, are aware in Oklahoma, there was a push to open up religious charter schools. And so certainly I think there was a previous attorney general who said that that would be okay, viable legally. And then I think they probably had a change in that position since, but anyway, all this to say, it’s gone up to the Oklahoma Supreme Court and the court ruled recently that public funds for religious charter schools would be unconstitutional. So anyway, I guess I just want to point this article out just to get them up to speed on this debate. And certainly, this is not going to be the last word. I mean, who knows if the Supreme Court’s going to take this up and how they’ll decide it. And I know in light of some of the other recent Supreme Court rulings, like in Espinoza and Carson v. Menck. And this has all sorts of legal implications. So anyway, I just want to flag that for our listeners and maybe Alisha, I’m sure you’re going to have that conversation come up with some of the folks you’re hanging out with.
[00:06:34] Alisha Searcy: I literally just left the session and that was one of the questions that came up and you know, this is one of those monumental decisions, right, that could change the way we think. Charter schools look and, you know, the conversation. And so, what’s funny, right, is that our guest today is going to be talking about Patrick Henry and he had some very strong opinions about the separation of church and state. So we know where he would stand on this decision.
[00:07:00] Albert Cheng: Yup. I mean, I think it just underscores, you know, how do we thread that needle between free exercise and no establishment, I guess.
[00:07:07] Alisha Searcy: Right. And parent choice. So, there’s a lot all wrapped up. Excellent. Well, thank you for that story. And after the break, as I said, we will have with us Harlow Giles Unger to talk about Patrick Henry as we celebrate July 4th.
[00:07:36] Albert Cheng: Harlow Giles Unger is an award-winning journalist, broadcaster, educator, and historian. A New York Times bestselling author of more than 30 books, he is a former Distinguished Visiting Fellow in American History at George Washington’s Mount Vernon. Among his books, Lafayette won the American Revolution Roundtable Book Prize and the Daughters of the American Revolution Book Award, among others. His bestseller, The Last Founding Father, James Monroe and a Nation’s Call to Greatness, earned him the Washington Post designation as the premier presidential biographer. Among his other books include Line of Liberty, Patrick Henry and the Call to a New Nation, John Marshall, the Chief Justice who saved the nation, The Unexpected George Washington, His Private Life, Dr. Benjamin Rush, the Founding Father who Healed a Wounded Nation, John Quincy Adams, and more. And most recently, Thomas Paine and the Clarion Call for American Independence. He is a graduate of Yale University. Well, Harlow, it’s a pleasure to have you on The Learning Curve. Welcome. Yes, welcome.
[00:08:44] Harlow Giles Unger: Thank you for asking me.
[00:08:46] Albert Cheng: This week is the 4th of July and I know you’ve written lots of books, but we’re here to really talk about Patrick Henry and the biography that you have of him, Lion of Liberty, Patrick Henry and the Call to a New Nation. As we celebrate the 4th this week, could you just paint us a portrait of who Patrick Henry was and why he was so important to the cause of American independence?
[00:09:10] Harlow Giles Unger: Well, some of the founding fathers with a sense of humor said that Patrick Henry, not George Washington, was the real father of our country. George Washington had no children. Patrick Henry had 22. And 17 of them sired 55 grandchildren who in turn left us generations of Henry who now more than 100,000 in America today. So apart from his obvious importance to the Henry family, Patrick Henry was largely responsible for our declaration of independence from Britain and for our victory in the War of Independence. As a boy, he was homeschooled by his parents on an isolated farm in the Virginia mountains. He later studied law on his own and earned national celebrity defending some poor farmers against the powerful Anglican Church.
[00:10:01] He was elected to Virginia’s assembly and demanded reforms in Britain’s colonial government. Britain’s king scoffed at Henry’s demands and Henry responded with his famous speech that ended, give me liberty or give me death. And with that, Virginia declared independence from Britain and inspired 11 of the other American colleagues to follow suit. Virginia elected Henry its first governor, and under his leadership, went on to win its independence with Britain’s other American colonies.
[00:10:33] Albert Cheng: Yeah. Wow. So, it sounds like he, uh, catalyzed a lot of the revolution there, given that that overview he just gave us. Well, let’s dig into some of the other parts of his life that you mentioned. You mentioned a little bit about his childhood. Uh, he was born during the Great Awakening, uh, mid-18th century religious revival in colonial America. Can you say more just about his family and just the background there, his early life, religious convictions, his education? How did that all propel him to, you know, the legacy that he eventually had?
[00:11:06] Harlow Giles Unger: Well, he was one of seven children of John Henry’s first wife. John Henry was a superbly educated Scott commoner who came to America and settled on 1, 500 acres in Virginia’s Piedmont Hills. The nearest settlement was Hanover. A hamlet with only a combined country store tavern and a tiny courthouse.
[00:11:29] Henry and his wife homeschooled Patrick and the other boys, but his father was Anglican and his mother was Presbyterian. The two religions confused Patrick Henry because of their opposite views on royal infallibility. Patrick decided to reject both religions. And he chose American secularism for his life. University education in those days was of little value in the frontier, so Patrick went to work when he was 15. After failing at several jobs, he married the tavern keeper’s daughter, and in exchange for a room and board, he went to work in the tavern tending bar and playing a fiddle to entertain customers.
[00:12:12] Many were lawyers from the courthouse across the road. He took to listening their legal arguments at the bar, they interested him so much, he decided to buy some law books and then attend trials. Finally wound-up debating lawyers at the Tavern Bar, and he developed a spellbinding way of speaking and finally bought a license to practice.
[00:12:35] You didn’t have to go to law school in those days to practice law in Virginia. Three years later, some destitute farmers approached him to defend them in a lawsuit by the Anglican Church. His victory startled the English-speaking world, catapulted him into Virginia State Assembly and to leadership in the American Revolution. It toppled the English empire.
[00:13:01] Albert Cheng: That’s quite the education. Uh, it all started, I guess, with a tavern job and listening to the patrons. That’s fascinating to hear of his beginnings. Let’s get into his, you know, you were, you were alluding to the rise of his career, both as a lawyer and a public servant. So, I think you were alluding to a legal dispute, the Parsons cause.
[00:13:22] Yes, I agree. You know, 1760 to 63, and then, you know, was elected to the Virginia House of Burgesses. So, all of this, and let’s build to the revolution, really. It seems like, you know, all of this led to his role in shaping colonial Virginia’s opposition to Great Britain’s imperial policy. So, connect the dots for us with what you just talked about.
[00:13:44] Harlow Giles Unger: Patrick Henry had only practiced law for a few years in 1763. A group of farmers came to him to defend a suit by, of all people, the Anglican Church, a huge Anglican Church. By law, the church then taxed all property. But a disastrous drought had left many small tobacco farms with such poor crops, they would have to sell their farms to pay their taxes.
[00:14:09] When they refused, the church sued them, and they turned to Patrick Henry. Patrick Henry. He was the county’s least experienced lawyer, and therefore charged the least fees. Once in court, though, he started very well, until he came for time for his closing argument, and he seemed to freeze. He bowed his head and said nothing.
[00:14:32] Seconds went by, a minute, then another, not a word. In fact, he had practiced long hours rehearsing for that very moment, opening with a dramatic pause to cloak the courtroom in suspense. When he finally spoke, he was brilliant, whispering one moment, thundering the next. In contrast to the Pompous accents of the church lawyers, he spoke the mountain drawl of his jurors.
[00:14:59] His tavern days had taught him how to win their minds and hearts. He turned into a prosecuting attorney instead of a defense attorney. He charged the priests with unchristian greed. With extracting the last pennies from poverty-stricken farmers, forcing their wives and babies from their homes. After deliberating only five minutes, the jury awarded the church one penny.
[00:15:28] The spectators roared, they hoisted Henry on their shoulders and carried him out of the courthouse around the village square. In defying Britain’s Anglican church, Patrick Henry inspired them. And almost all Americans to fight for independence from the Anglican Church and from Britain.
[00:15:47] Albert Cheng: Wow. Fascinating account there. Well, let’s get into probably what folks know him most for, “Give Me Liberty or Give Me Death,” which he declared in a speech to the Second Virginia Convention on March 23rd, 1775. So, this was at St. John’s Church in Richmond, Virginia, and Really here, he’s credited with convincing the convention to pass a resolution to deliver Virginia troops for the Revolutionary War. So, tell us about this pivotal event and really how it spurred the push for American independence.
[00:16:18] Harlow Giles Unger: Absolutely. And that church still exists. It’s beautiful. I visit it often. If you get to Richmond, everyone should go and visit it. When Britain increased control over the colonial economy, colonial leaders convened the first ever intercolonial congress in Philadelphia to plot joint resistance.
[00:16:39] But their debates yielded nothing. They did tiresome rhetoric until finally a rider from Boston burst into the hall, none other than Paul Revere. He brought news that Massachusetts had declared independence and was preparing a war against Britain. He asked other states to follow suit, and that’s why Revere was there.
[00:17:00] Congress cheered, but only sent a polite petition to the British king to help resolve their grievances. Only Virginia’s Patrick Henry. urged the colonies to support Massachusetts. By God, he thundered, we must fight. Virginia was America’s largest, most powerful American colony then, and other colonies usually adopted Virginia’s economic and political moves.
[00:17:25] So when Patrick wrote home to Richmond, and warned neighbors to prepare for war with Britain, the other states began preparing as well.
[00:17:35] Albert Cheng: Well, as we’re kind of learning here and hearing from your account, just, you know, a man deeply involved with the founding period of our country. So, you know, Alisha’s going to get into some more details about Henry’s record as a lawgiver and governor, but I’d like to ask before we get to her, if you could just give us an overview, discuss his record as a lawgiver and governor. Yeah, would you be willing to do that, please?
[00:17:57] Harlow Giles Unger: Well, after Virginia declared its independence, it had to set up a government, even though it was still at war. And they elected Henry its first governor. He ignored the assembly and simply seized power when he needed it. George Washington badly needed supplies at Valley Forge.
[00:18:15] So, uh, Patrick Henry rounded them up in Richmond and sent Washington’s army the supplies that helped his army recover from the bitter winter of 76 and 77 and allowed him to go on to victory in the War of Independence. But Henry played other, less known roles in the American victory. He sent a small army of his own, for example, and raised and sent an army to oust the British from Virginia’s Huge Western Territory.
[00:18:47] That territory, which most people aren’t aware of, included present day Illinois, Indiana, Ohio, and Kentucky. Having freed that area from the British, he went on to win four terms as governor. And his overwhelming popularity allowed him to ignore the state legislature and the Congress to revive Virginia’s economy on his own.
[00:19:10] On his own, he negotiated trade agreements with Spain and Cuba. Then, knowing that the legislature wouldn’t challenge his authority, he proposed, and the Assembly passed, the most historic measure at the time in Virginia history. It banned the importation of slaves. For the first time in the American South.
[00:19:33] Alisha Searcy: Very interesting history. At first, you know, as a former legislator, Mr. Ungar, I have to tell you, I don’t like hearing that a governor is not listening to a legislator, but, uh, sounds like he did some very important things that we are grateful that he did. So, we appreciate that. I would like to talk about, in 1786, James Madison got Thomas Jefferson’s statute for religious freedom passed through the Virginia legislature, and this law required a separation of church and state. So would you talk about Patrick Henry’s views on taxpayer support for religious institutions, and then summarizing the political tensions within state rivals like Madison and Jefferson?
[00:20:15] Harlow Giles Unger: Well, as I said before, Henry’s father was Anglican, and his mother Presbyterian, and the two religions had opposite views on the infallibility of the king of England. His mother actually scoffed at the idea of the king’s infallibility. So, in the end, Henry rejected both religious doctrines and embraced American secularism for much of his young life. As governor later in life, though, he tried to reconcile religious differences in the state. By asking the legislature to make all Christianity, and that was the term he used, Christianity the official state religion.
[00:20:55] Well, there were so many religions in Virginia that almost all Virginians voted it down. Then Thomas Jefferson decided to upstage him and propose a bill establishing religious freedom that ended all state ties to all the different religions forever. It helped spawn. Henry’s and Jefferson’s and Madison’s mutual dislike for Henry.
[00:21:21] Both Jefferson and James Madison, who was Jefferson’s protege, had college educations. And it seemed to irritate them that Henry was self educated, but as knowledgeable as they, and so many times, and often more so. And what infuriated Henry about Jefferson and Madison is that neither fired a single shot at the British in the Revolutionary War after Jefferson had pompously pledged his life, his fortune, and his sacred honor to do so. Instead, he fled home to his mountain hilltop at Monticello.
[00:21:56] Alisha Searcy: It’d be very interesting to see what they’d have to say today about religious freedom and where we are. Thank you for that. So I want to talk about, like other Virginia founding fathers, Patrick Henry was a great, champion of human liberty who publicly opposed slavery and yet was also a slave owner. So can you talk about the moral contradictions here between his ideas about rights and liberties, yet his enslavement of human beings?
[00:22:25] Harlow Giles Unger: Well, first of all, he believed abolition would be as cruel as slavery in that day to set loose nearly 200,000 Semi-literate, semi-skilled people, one third of them children, an equal number crippled or over aged, unthinkable.
[00:22:41] Where would they go? What would they do? How would they eat? The North had towns and cities with apprenticeships and manufacturing facilities. The South was a land of plantations and farms, one after another. When you left one farm, you found the entrance to another. There were few towns and cities and no opportunities for work off the fields.
[00:23:04] Is it not amazing, Henry said, in a country above all others fond of liberty, that in such an age, in such a country, we find men professing a religion most humane? But adopting a principle as repugnant as humanity is with the Bible and destructive to liberty. Although he owned slaves, as you said, he never bought or sold any.
[00:23:26] He couldn’t. He acquired the slaves he did own at the end of his life. on farms that he bought. He kept expanding his own farm by adding new farms. Virginia law made slaves integral parts of the property where they lived and made it a crime to separate them from each other. Henry rued his ownership of slaves and couldn’t reconcile it with his beliefs. He wrote to a Quaker friend of his about slavery. He said, “I will not. I cannot justify it.”
[00:24:00] Alisha Searcy: Hmm. Very powerful. Thank you for helping me to understand that. So, when I moved from 1781 to 1789, the Articles of Confederation was the first constitutional agreement among the 13 states. However, shortly after independence in 1783, the Articles began to falter and fall as the workable national framework for government. So, can you tell us about Patrick Henry’s opinions concerning federalism during this period?
[00:24:32] Harlow Giles Unger: Well, after the acceptance of the Constitution by other states other than Virginia, here’s what Patrick Henry said as Virginia was preparing to pass the Constitution. Debate. Ratification of the Constitution. As this government stands, and these are Henry’s words, as this government stands, I despise it.
[00:24:52] If I am asked what is to be done, my answer is overturn the government. Now he wasn’t talking about the British government, he was talking about the American government. More than a decade after he called for overthrowing the British, he accused the founding fathers recreating a British style government.
[00:25:10] In the United States, he said the Constitution, they wrote, would replace the British monarch with an equally powerful president. And instead of ascending the throne by heredity, he would seize power as the choice of a tiny, landed gentry, the equivalent of Britain’s nobility. And he was right at the time, and even today, to some extent.
[00:25:31] In America’s first popular election, fewer than 2 percent of Americans were allowed to vote. All of them, the wealthiest, white, property males, all of them voted for George Washington. What right, and these are Patrick Henry’s words again, what right had the authors of the Constitution to begin with the words, we the people?
[00:25:54] The people gave them no power to use their name. He said the wealthiest Americans had written the Constitution and seized what he called the two greatest powers of government, the sword and the purse. They could now oppress the people with weaponry and taxes, just as the British government had tried to do.
[00:26:14] Alisha Searcy: Wow. So, in 1785 to 88, fellow Virginian James Madison prepared to replace the Articles of Confederation with a new federal constitution. And Patrick Henry joined fellow revolutionary era figures like George Mason and, uh, Samuel Adams in leading the anti-federalist opposition to the ratification of the U.S. Constitution. You spoke about this a minute ago about his opposition. Can you talk about Henry’s anti-federalist principle opposition to the new U. S. Constitution, including their insistence on a federal bill of rights?
[00:26:51] Harlow Giles Unger: Absolutely. Patrick Henry believed the Constitution’s failure to set any limits on government powers made tyranny inevitable Congress. These are Henry’s words. Congress will have an unlimited Unbounded command over the Commonwealth by passing any laws it deems necessary and proper and it didn’t define what necessary and proper was. He said the President would be able to exercise whatever he defined as executive power.
[00:27:21] Without defining what executive power was. And the Supreme Court would have powers over every court in the land and would hear cases without juries. He said the Magna Carta had guaranteed trial by jury across the English-speaking world since 1215. And now the United States had abandoned it. Nor did the Constitution provide for term limits for the president then, or members of Congress, or of the judiciary.
[00:27:50] No one overseeing the judiciary. All could serve indefinitely and collude to create a tyranny. Virginia guaranteed the rights that Patrick Henry demanded from the Constitution. But the Constitution even gave the new national government powers to negative state laws and imposed the very tyranny in Virginia and elsewhere from which Americans and Patrick Henry had freed them.
[00:28:20] Alisha Searcy: Thank you for that. And so, final question before we ask you to read us an excerpt from one of your books. We’re celebrating the Fourth of July, as Albert mentioned earlier, and we’re thinking about our founding fathers and our freedoms and liberties that we celebrate. Can you talk about Patrick Henry’s death and the enduring legacy that he has? And especially what citizens, teachers, and students should really remember the most about his contributions to our liberties.
[00:28:51] Harlow Giles Unger: Absolutely. I think everyone needs to remember the enormous differences, though, between Patrick Henry’s world and ours. There were enormous differences in the meanings of their words, of their thoughts, even when the words are the same.
[00:29:10] To most founders the phrase, all men are created equal, meant fewer than 25 percent of Americans then. That limited what independence would mean to all Americans. Like most Americans, Henry grew up and lived in a wide open, sparsely settled land. Free to hunt, fish, swim, and roam the fields and forests, far from any government agenda.
[00:29:36] Only his parents and his own common sense dictated his early conduct. The same held true for most other free, white, wealthy American men. 95 percent lived in rural areas. We call the way he lived liberty. George Washington called it anarchy. As did most of the founders and authors of the Constitution.
[00:30:01] Liberty versus Anarchy. The document infuriated Henry and his followers, who called themselves anti federalists. They said it failed to protect the very individual rights they had fought to free the Americans from. Although the first Congress tried placating him with a Bill of Rights, it left the federal government so much power that 11 states later decided to leave, quit the country, to go their own way.
[00:30:31] Their civil war cost more than 600,000 American lives. So, I think Americans today should hail Patrick Henry as one of our two greatest crowning fathers of our independence of our nationhood. And of our Bill of Rights. But he was human. He was a man of his times. His vision of government reflected his times, not ours. The shape of that government has changed since then and will certainly continue to change to reflect the times of future generations
[00:31:01] Alisha Searcy: of Americans. So, would you end by reading an excerpt from your book, one of your favorite paragraphs?
[00:31:10] Harlow Giles Unger: Absolutely. Patrick Henry was 37. and had witnessed the horrors of slavery across Virginia’s farmlands. It left him an inconsolable abolitionist the rest of his life. I think this letter he wrote to a Quaker friend of his had meaning for today’s poverty, homelessness, substandard schools, ignorance, and other ills of the nation. Here’s what he wrote about slavery. Is it not a little surprising that the professors of Christianity Whose chief excellence consists in softening the human heart should encourage a practice so totally repugnant.
[00:31:51] What adds to the wonder is that this abominable practice has been introduced in the most enlightened ages. Times that boast of high improvements in the arts and sciences and refined morality. Have brought into general use and guarded by many laws, a species of violence and tyranny. Is it not amazing that at a time when the rights of humanity are defined and understood with precision, in a country above all others fond of liberty, and in such an age and such a country fond of liberty, we find men adopting a principle as repugnant to humanity as it is inconsistent with the Bible and destructive to liberty. Those are Patrick Henry’s words 250 years ago. I think they still hold true today.
[00:32:46] Alisha Searcy: Absolutely very powerful. Thank you so much for being with us today.
[00:32:49] Harlow Giles Unger: Thank you very much for inviting me.
[00:33:03] Albert Cheng: Well, yeah, I really enjoyed learning more about Patrick Henry in that interview.
[00:33:07] Alisha Searcy: Definitely learned a lot.
[00:33:09] Albert Cheng: Well, that’s going to take us to the end of our show, but hey, we’ve got the Tweet of the Week, and this one comes from US News Education, and for those of you that are into these kinds of things, you know that US News likes to put together rankings of lots of institutions of higher education, so they’ve just released the 2024 Best Engineering Schools in America.
[00:33:32] So for those of you who are curious about that, take a look. Up top, we have MIT. And then, I don’t know, I got to take a little bit of issue with number two and three here. So as a alum of the University of California, Berkeley, I saw that they put my alma mater as number three, just behind Laura. Archrival Stanford University, so anyway, I don’t know, I guess it’s always just kind of fun.
[00:33:57] How many of these makes a comp, Albert? Well, I’d say I guess it’s fun to kind of look at these rankings and figure out what they mean and have some of this fun jest with what it is. I love it. Alisha, that takes us to the end of our show, but who do we have next week?
[00:34:12] Alisha Searcy: Next week, I’m very excited. We’ve got Dr. Marguerite Rosa, who is the Director of the Edunomics Lab and Research Professor at Georgetown University’s McCourt School of Public Policy. If you’ve never heard of her, you definitely don’t want to miss. She’s brilliant and she’s fascinating and a little bit entertaining. So, make sure you join us next week. Well, it’s been great to be with you, Albert. Thanks for joining. Great episode today, and we’ll look forward to chatting again next time.
[00:34:40] Albert Cheng: Yeah, always a pleasure. And yeah, great interview. Great conversation.
[00:34:43] Alisha Searcy: See you next week.
This week on The Learning Curve co-hosts U-Arkansas Prof. Albert Cheng and DFER’s Alisha Searcy interview Harlow Giles Unger, author of Lion of Liberty: Patrick Henry and the Call to a New Nation. Mr. Unger delves into the life of Patrick Henry as the country celebrates the Fourth of July. He explores Henry’s early life, his rise as a lawyer and political figure, and his fiery opposition to British policies. Mr. Unger highlights Henry’s famous “Give me liberty, or give me death!” speech and his influential role as governor of Virginia, underscoring his enduring legacy in helping forge American independence. In closing, he reads a passage from his book, Lion of Liberty: Patrick Henry and the Call to a New Nation. The Learning Curve team wishes everyone a safe and happy Fourth of July!
Stories of the Week: Albert discussed an article from AP News sharing how Oklahoma finds religious public schools unconstitutional; Alisha reviewed an article from Chalkbeat expressing teachers’ union frustrations with New York’s new reading curriculum.
Guest:
Harlow Giles Unger is an award-winning journalist, broadcaster, educator, and historian. A New York Times-bestselling author of more than 30 books, he is a former Distinguished Visiting Fellow in American History at George Washington’s Mount Vernon. Among his books, Lafayette won the American Revolution Round Table Book Prize and the Daughters of the American Revolution book award among others. His bestseller, The Last Founding Father: James Monroe and a Nation’s Call to Greatness, earned him the Washington Post designation as a “Premier Presidential Biographer.” Among his other books, include Lion of Liberty: Patrick Henry and the Call to a New Nation; John Marshall: The Chief Justice Who Saved the Nation; The Unexpected George Washington: His Private Life; Dr. Benjamin Rush: The Founding Father Who Healed a Wounded Nation; John Quincy Adams; and, most recently, Thomas Paine and the Clarion Call for American Independence. He is a graduate of Yale University.
Tweet of the Week:
https://x.com/USNewsEducation/status/1803052728978940089