Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 4 (2026)
William & Mary Law Review
Abstract
Although the U.S. Constitution is widely described as lacking enforceable social rights, a recent line of cases from the Ninth Circuit recognizes a limited right to shelter. Relying on the Eighth Amendment, the Ninth Circuit held that individuals who lack access to shelter have a limited right to stay on public land with their belongings. The Supreme Court reversed in 2024, portraying the Ninth Circuit’s approach as an anomalous departure from accepted constitutional norms.
This Article argues that the Ninth Circuit’s decisions were not an aberration but instead exemplify a longstanding and globally common mode of social-rights adjudication. The common assumption that social rights require courts to mandate affirmative provision of goods obscures a second, equally significant form of enforcement: judicial restraints on state action that would deprive people of the basic means of subsistence. Comparative constitutional practice shows that even when constitutions contain explicit social rights guarantees, courts frequently enforce them through negative and procedural protections—invalidating harmful policies or requiring processes that safeguard essential needs—rather than through sweeping commands to provide services. These interventions often arise not from expressly labeled social rights clauses but from civil and political rights, such as due process, property, and prohibitions on cruel treatment.
Viewed through this lens, U.S. constitutional law has long contained a form of social-rights jurisprudence, particularly in cases involving the very poor. The Ninth Circuit’s homelessness rulings fit this pattern: They deploy established constitutional norms to prevent the state from imposing penalties that undermine basic survival. Rather than a brief and anomalous experiment, Martin v. City of Boise and Johnson v. City of Grants Pass illustrate a broader practice of enforcing subsistence rights through limits on governmental power.