This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter provides an overview of homelessness in the United States and Canada. It discusses the risk factors associated with homelessness. It explains how vagrancy laws historically regulated unhoused persons. These laws were struck down following the rise of the void for vagueness doctrine. This chapter discusses how local governments enacted narrowly tailored municipal ordinances that governed unhoused persons and public property, which withstood void for vagueness challenges.

This chapter explains why the State has greater power to regulate and police unhoused persons compared to people with access to housing. It shows how and why the State has more power to regulate need-alleviating conduct that occurs on public property than on private property. It demonstrates how laws that govern public property operate like legal rules that impose affirmative duties to act on unhoused persons. Yet others control whether unhoused persons can fulfil this affirmative duty, and unhoused persons must make non-egalitarian trade-offs to fulful their positive obligations.

This chapter explores the relationship between homelessness and two prominent conceptions of liberty: positive liberty as self-actualization and negative liberty as non-interference. It sets out how scholars have approached the relationship between homelessness, property, and both forms of liberty. It demonstrates how unhoused persons tend to lack positive and negative liberty.

This chapter provides an overview of this book’s core arguments and structure.

This final chapter demonstrates how the State can fulfil its three fiduciary duties to end homelessness, maintain public property’s shared value, and legitimize laws that govern public space. This chapter unpacks each of these duties and explains their substantive content. Drawing on existing research, this chapter provides concrete proposals for how the State can respect each of its three fiduciary obligations related to homelessness and public property.

This book advances a theory of the State’s fiduciary duties to end homelessness, maintain public property’s shared value, and legitimize laws that govern public space. It argues that republicanism provides new insight into homelessness and the regulation of public property – insights that existing constitutional theory and legal philosophy typically overlook. This book’s overarching argument, original contributions, and advantages can be described as follows.

This chapter discusses the State’s three fiduciary duties related to homelessness and public property. Its opening parts describe why the State and individuals are in a fiduciary relationship and why the State has an overarching fiduciary duty to counteract domination. It then discusses other fiduciary relationships that arise in public law contexts. It then explains how the State has three fiduciary duties, all of which seek to minimize domination. More specifically, the State has fiduciary duties to: (1) end homelessness and secure access to housing, (2) maintain public property’s shared value, and (3) legitimize laws that regulate public space. It elucidates the relationship between these three duties.

This chapter introduces the republican conception of liberty as non-domination. It explains how unhoused persons experience two forms of domination because they lack private property rights. First, others exert control over unhoused persons’ opportunities to obey laws that govern public property. Second, unhoused persons must make non-egalitarian sacrifices (or trade-offs) to obey laws that regulate public space.

This chapter defends the State’s fiduciary duties discussed in the previous chapter. It demonstrates why various other ameliorative or coercive governmental measures either fail to mitigate domination or exacerbate it. These governmental measures include increased shelter spaces, zoning, concentration strategies, and dispersal tactics. The final parts of this chapter demonstrate why encampments are a partially justifiable response to homelessness. Yet the State must provide access to housing because individuals cannot justifiably establish encampments as a form of self-help .

This chapter demonstrates how the punishments associated with laws that govern public property entrench individuals in homelessness, such that they will continue to experience non-egalitarian coercion and domination. It explores how these laws result in fines, fees, and surcharges that can result in significant criminal justice debt. It shows how punishments can result in collateral consequences that limit employment prospects and access to housing.