Amendment-Based Arguments
- Sherard A. Robbins, Ph.D., M.LS.
- Mar 3
- 7 min read
In 2024, the Supreme Court of the United States (SCOTUS) ruled in favor of Grants Pass, Oregon and their homeless encampments policies in the case, Grants Pass v. Johnson. In this case, the city of Grant Pass established a set of laws that collectively made it illegal to sleep or camp (including overnight parking) on city property or in cars. Penalties for violators included civil fines and civil orders which extended to the expulsion from city parks. In that, should someone violate a civil order, the person could face criminal-trespass charges punishable with criminal fines and even prison time. These laws and other statutory measures were tools used by the city to primarily address homelessness in the area.
The position of the appellee, Johnson, was that the city's anti-camping ordinances violated the Eighth Amendment which states that the government may not engage in any form of cruel and unusual punishment against its people. Historically, the courts have upheld this claim in previous camping and homelessness cases, so it stood to reason why Johnson's attorneys would make this argument. The most recent success story was in 2019 when the Court in Martin v. Boise found that the Eighth Amendment is violated if/when homelessness is punished "when the number of unhoused exceed the number of available beds;" a form of doctrinal relief now called a Martin Injunction. However, when this case was brought before the hyper-conservative Supreme Court of the United States, SCOTUS ruled that, "the Eighth Amendment is a poor foundation on which to rest this argument, as the Cruel and Unusual Punishment Clause focuses on the “method or kind of punishment” a government may impose after a criminal conviction - not whether a government may criminalize a particular behavior in the first place." And you know what? I agree.
Despite the Eighth Amendment carrying the benefits of stare decisis (the support of previous decisions), the attorneys in Johnson's case failed to make sense of the purpose of the cruel and unusual punishment clause, both as it was written and as it has been applied. Even in considering the Martin case, the violation was not found in the fact of the punishment as a response to an illegal act, but in the fact of the punishment in the context of the act, itself. In other words, actions have consequences - so, the fact that the punishment for, say, my son's backtalk is a timeout isn't an issue of fact worth criticizing for most people; we all could understand why talking back might warrant a punishment of some sort. However, were I to place my son in timeout for backtalk that stems directly from my failure to provide him with clear instructions on how to do what I needed him to do, despite his willingness and even attempts to do so, then the punishment would certainly warrant criticism, and justifiably so. In Grants Pass, the *issue* was not whether regulating camping laws by criminalizing homelessness when no beds are provided violated the Eighth Amendment, it was "whether the enforcement of generally applicable laws regulating camping on public property constitutes a “cruel and unusual punishment.” And the answer to that question is simply, no.
Making the Right Argument
I use the Grants Pass case as an example of an Amendment-based argument because the Amendment one chooses to rest one's case could make, literally, all the difference; and in this case, the decision to use the Eighth Amendment was the wrong one. I'll spare you the deeper dive into how all this works (check out a Con Eye workshop for that!) but what would have likely made for a better case would have been for Johnson's attorneys to argue Grants Pass under the Fourteenth Amendment, specifically the equal protection clause, as that is really what the case was about. Section 1983 of Title 42 of the U.S. Code stems from the Civil Rights Act of 1866 and allows U.S. citizens to bring suit against government officials whenever their constitutional rights have been violated. In Grants Pass, the appellee's concern was whether homeless, or, unhoused people should be punished for camping in public places when there is no other option afforded to them. These arguments were presented to the Court by Johnson's team, however, as we've established, they were presented under the Eighth Amendment. Had Johnson, instead, agued that the city of Grants Pass, and further, the state of Oregon, had a legitimate interest in keeping their citizens and residents, who are living without adequate housing, alive and healthy just as much they do their citizens who are housed and healthy, then Johnson could have argued that striking down such policies under the Fourteenth Amendment's equal protection clause would have been rationally related to that state and city interest. This is called the Rational Basis Test. See how that works?
Let's try a different topic and another amendment; take, DEI, or diversity, equity, and inclusion. Although there is no case currently examining the constitutionality of DEI (though it is a workshop that Con Eye offers to help participants and first-year legal scholars understand how to interpret an argument from various angles), there is certainly something to be said about whether the matter is (and would be) an equal rights issue, or a free speech issue; and in 1976, the Supreme Court heard a case, Runyon v. McCrary, that dealt with the intersections of racial equality and free speech, Fourteenth and First Amendment matters, respectively. In this case, private daycare owners, Russell and Katheryne Runyon, ran a privately owned and operated nursery, Bobbe's School, that was advertised to the public. The parents of Colin Gonzalez and Michael McCrary contacted Bobbe's School in hopes of enrolling their children but were told that the school served white students only. Section 1981 of Title 42 of the U.S. Code disallows discrimination based on race in any and all forms of public contracting. Contracting requires consideration, or, a promise for one party to receive something in exchange for something from another party; this includes a school agreeing to teach or care for a student or child in exchange for that student’s (or parent of that student's) money. Parents Gonzalez and McCrary sued the Runyons under Section 1981 for racially discriminating against their Black children. The Lower Courts decided in favor of the parents and the Supreme Court granted certiorari, or, final appellate review.
The issue, or, question before the Supreme Court was simple - to decide "whether 42 U.S.C. § 1981 prevents private schools from discriminating racially among applicants." The Court held, yes it does. The Runyon's argued that their distinction as a private entity protects their racially discriminatory polices, such as permitting only white students into their school. However, as part of their reasoning, the Supreme Court held that "When a school holds itself open to the public . . . or even to those applicants meeting established qualifications, there is no perceived privacy of the sort that has been given constitutional protection" and could not discriminate based on race. Interestingly, though, the Court did acknowledge a First Amendment matter of expression, though, stating that:
"While, under the principle that there is a First Amendment right "to engage in association for the advancement of beliefs and ideas (NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460,), it may be assumed that parents have a right to send their children to schools that promote the belief that racial segregation is desirable, and that the children have a right to attend such schools, it does not follow that the practice of excluding racial minorities from such schools is also protected by the same principle. The Constitution places no value on discrimination..."
This is important because, much like Grant Pass, the arguments placed before the court have a direct impact on the ways in which the question, or case, may be resolved. In Runyon, the appellants argued that their racially discriminatory policies were protected by the First Amendment - they weren't, because policies are a matter of design, which directly invoke a practice, and in this case, a practice of discrimination. However, had they argued that their position on discrimination was not in practice but ideology, then they would have been able to make a stronger case for why 42 U.S.C. § 1981 does not prevent private schools from discriminating racially among applicants, and why they could teach content geared specifically towards white students (or simply care for them in a nursery setting), even in the presence of Black or other children of color. Of course, this would have done nothing to challenge nor justify the fact that the Runyon's did not accept Gonzalez or McCrary specifically because they were Black. Nevertheless, the "practice" in question before the Court was not a matter of success, that is, what was happening in the classroom, but rather, a matter of access, or, what happened before they got to the classroom.
Know Your Rights
As you can see, knowing your rights is more than just a cliché. It plays a greater role than just understanding what to do if a police officer knocks on your door, or if a teacher tells you to "take that thing off." A sound understanding of your rights could also prepare you to make the best argument possible should you ever find yourself in court; and these rights extend beyond federal laws and Amendments, as well. Knowing your city and state laws can be helpful in case you find yourself in local litigation. What do the probate laws in your state say? What about voting access? Did your landlord give you back your security deposit? What do the revised statutes of your state say is the expectation? Knowing your rights is the first step in being able to make the right argument, and as the work and field of diversity, equity, and inclusion remain on the proverbial chopping block, making the right argument is going to be more important than ever.
The Weekly Opinion is a series designed to keep the people of the United States and the world up to date and in tune with the latest news. The private and independent nature of Con Eye™ allows for it to bring you information untainted by potentially government-controlled narratives.
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