“History and tradition:” judicial engagement with public histories of homelessness
24 September 2024 – Kristin O’Brassill-Kulfan
Editor’s Note: Kristin O’Brassill-Kulfan is the 2024 winner of the G. Wesley Johnson Award, which recognizes the most outstanding article appearing in the The Public Historian during the previous volume year, for her article “‘People First’: Interpreting and Commemorating Houselessness and Poverty,” The Public Historian Vol 45, No 1. This post considers our series featuring blog posts from NCPH award winners.
The public history of homelessness has been making headlines this year, as thousands of housing-insecure people’s lives and statuses are made more vulnerable by legal changes and political agendas. In June, the U.S. Supreme Court issued a ruling in Grants Pass v. Johnson arguing that historical precedent affirms that municipalities in the United States may legally arrest unhoused people for sleeping outdoors, even if no alternative was available to them. Municipalities may arrest and jail people for using blankets to keep warm, or laying on a park bench. As Justice Sotomayor wrote in the dissent, “that is unconscionable and unconstitutional” because “punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”
At issue for public historians is whether the courts consider research documenting the effects of historical legislation on vulnerable populations alongside research documenting the existence (and thus precedence or commonality) of this legislation. In taking the legal history of homelessness at face value without social historical interpretation, the Supreme Court is reproducing the disenfranchisement of people experiencing poverty that our 19th-century predecessors erected and our 20th-century jurists tried to dismantle.
A basement cell in the almshouse at Historic London Town, where records suggest paupers were sometimes shackled. Photo courtesy of the author.
How did this case end this way? As the judiciary moves further toward originalist interpretations of American law, justices are relying more upon understandings of the “history and tradition” of jurisprudence in early America to rule in the 21st century. The petitioners, representing Grants Pass, Oregon and amici, cited historians’ work about carceral responses to poverty, and used it to support strong local-level interventions. The texts the petitioners cite very clearly list the damage caused by vagrancy statutes and poor laws. But the petitioners have leveraged them to claim a right to police power: “Since the Founding,” they wrote, “states have been able to criminalize ‘wandering about the streets without a house’ and similar conduct…Many States and localities have considered criminal provisions to be necessary in addition to more humanitarian efforts like providing money, jobs, and housing to the homeless—measures with an equally long historical pedigree.”
That phrase “wandering about the streets without a house” is drawn from a source that I used in the opening to my recent TPH article, “People First,” in which I wrestled with the role of public memory and commemoration in public histories of poverty and homelessness. When I drafted the article, I concluded with optimism that federal courts had, as of 2018 in Martin v. Boise, ruled that “the laws used to police and punish unhoused people for sleeping outdoors or residing in public spaces might violate the Eighth Amendment, which prohibits cruel and unusual punishment, because unhoused people often have no other places to sleep or live.”
It seemed at the time like this might cause a ripple effect that would use a tool of the 18th century–the Eighth Amendment–to fight for the safety of people living in the 21st century. But this was the precedent that Grants Pass unsettled, freeing municipalities to engage in punitive responses to the humanitarian crisis of homelessness. In my article, I argued that
“by seeing the links that connect the experience of homelessness and incarceration in the nineteenth century with arrests for loitering and sleeping outdoors in the twenty-first, we can build solidarity across the centuries that can influence policy change…. Stories are powerful, and interpretations of the past in concert with explorations of the present can help us understand that phenomena such as poverty and houselessness, and institutions such as prisons, are not inevitable. They are part of a malleable past, present, and future that we can shape by understanding historical cause and effect, documenting continuity and change, and catalyzing communal resources around shared knowledge production, public space, and the means of subsistence.”
A sign at the Barrier Islands Center describing the occupation of a Quarter Kitchen by African American “inmates”, forced to labor in the Almshouse. Photo courtesy of the author.
Definitions of justice, punishment, and interpretations of the Constitution have and continue to shapeshift over time. Public history can help illuminate the ways in which people’s thinking about law and society changes over time.
I’ve been carrying my reflections on Grants Pass with me this summer on fieldwork at extant almshouse sites on the East Coast. During a visit to the Barrier Island Center (located on the property of the Poor Farm at Machipongo, VA), I overheard a visitor ask a docent why the people experiencing poverty who resided in the almshouse were referred to as “inmates,” since it made their tenure at the farm sound involuntary.
This prompted a discussion about the criminalization of homelessness and how spaces often interpreted as philanthropic were also or instead punitive and even carceral. Sites like these–and all sites that acknowledge the differences across class experience of institutions in U.S. history–have an opportunity to expand the interpretation of poverty in ways that help people better understand the nature of the “history and tradition” on which the Supreme Court is basing its decisions. Public historians have an opportunity–as ever, but especially in this political moment–to engage in epistemic repair by reappraising narratives of sites that document carcerality and poverty across our landscape.
~Kristin O’Brassill-Kulfan is Director of Public History and Public Humanities Initiatives and an Assistant Professor of History at Rutgers University. Her article “People First” won the G. Wesley Johnson Award in 2024.