For better or worse, America’s legal protections for its citizens are currently trapped in an ‘originalist’ time warp. The results are based on the belief that when the American nation was born, its laws were codified by a group of people with a unique, essentially angelic, association with a Supreme Being. That Being’s otherworldly guidance made it possible for the original lawmakers to create a Constitution of The United States that was nothing less than perfect for all time.
Accordingly, determination of both lawful and unlawful events in America can be achieved by treating the Constitution as an absolute index of right and wrong. A citizen right to housing, for example, is not mentioned in the Constitution.. Thus, originalist-oriented Americans have safely assumed that a right to housing simply does not exist within the legal perfection of America.
Thank heavens, for America’s sake, that the sanctity and perfection celebrated by originalist thinking is not the only perspective of American Justice. Nevertheless, at this moment in American History, the U.S. Supreme Court, is perceived to be dominated by originalist thought.
This perspective must be balanced by an understanding that a more ‘activist’ perception of the American Constitution has had its its ‘moments in the sun’ and has dominated much legal thinking over many recent years. That activist philosophy has avowed that right and wrong must be interpreted within a legal context that pays homage to the changing requirements of an evolving modern world.
For a practical example from the perspective of shelter and housing, an activist legal framework has allowed the western U.S. Ninth Judicial Circuit to accept that a right to shelter exists even though it is not mentioned in the Constitution. Over the past few years, the Ninth Judicial Circuit has actively avoided discriminating against, as well as criminalizing, people who are unhoused and no private shelter is available.
Now, the 9th Judicial Circuit’s decisions under review by the Supreme Court. The request for currently originalist assessments may allow governments, based on the perfection of originalist thought, to allow people who are unhoused to be criminalized for not possessing private shelter.
With originalist thinking currently holding sway at the pinnacle of American legal authority, it explains why Democrats have filed an ‘Amicus Brief’ with the Supreme Court. Read more in THE HILL: Democrats argue against criminalization of unhoused people in Supreme Court brief
