San Francisco’s municipal palace looks like the Wicked Witch of the West might live there, only there aren’t any flying monkeys. But several years ago, the monkeys set up housekeeping right out front. Supplied with food, clothing, tents, and other amenities by “community activists,” hundreds of wild-eyed tramps extorted money from passersby, drank cheap wine, urinated and vomited on the sidewalk, rutted in public, collected junk, and cooked their hobo cuisine over open fires. They did everything, in fact, but bathe. It was Mad Max Goes Homeless.
Left-wing Mayor Art Agnos was popular with all of San Francisco’s special interests, from Forests Forever to Dykes on Bikes. But when he allowed vagrants and beggars—most of whom have criminal records, are crazy, and are alcoholics or dmg addicts—not merely to roam the streets but to set up a Bushville on some of the most expensive real estate in America, he was the ex-mayor at the next election. The new mayor is a former police chief and, in Bay Area terms, a member of the hard right. Frarik Jordan has promised to sweep the streets as well as City Hall Plaza, but he will have his work cut out for him; like every other local official in this country, he faces court rulings that empower the bums and disarm the cops.
Before the Supreme Court gutted vagrancy laws in 1972, the police were free—in the wonderful words of a Jacksonville, Florida, ordinance—to roust or arrest “rogues and vagabonds, or dissolute persons who go about begging, . . . common drunkards, . . . lewd, wanton, and lascivious persons, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons . . . persons able to work but habitually living upon the earnings of their wives or minor children.” It was a law with more than six centuries of tradition behind it. By allowing vagrants to be punished with up to 90 days in jail, it kept the streets of Jacksonville safer and more decent. But that ordinance and all similar laws were declared unconstitutional in a decision written by William O. Douglas. It was the sort of sweeping act of judicial imperialism we have come to take for granted, but which violates the letter and spirit of the Constitution. Local laws are none of the Supreme Court’s business. The central government has legitimate jurisdiction only over the District of Columbia’s vagrancy laws. It’s easy to see why the feds might want to obviate that responsibility, however. Arresting “habitual loafers” would not only clear the streets, it would empty most of the buildings in D.C.
Douglas called the Jacksonville statute archaic and vague and said it encouraged arbitrary arrests and allowed too much police discretion. He cited Walt Whitman’s rotten “Song of the Open Road” and noted that Puerto Rican governor Luis Muñoz-Marin called loafing a “national virtue” to be “encouraged.” How, Douglas asked, can loafing be a virtue in the land of palm trees and welfare, and be “a crime in Jacksonville”? Nor, he said, can a law aimed at “so-called undesirables” be constitutional, since it violates “equality.” Laws “evenly applied to minorities as well as majorities, to the poor as well as the rich” are the “great mucilage that holds society together.”
But this is nonsense. Justice means “to each his own,” not some crazed leveling. The police must be allowed to treat different people differently. An experienced cop knows exactly who is suspicious and ought to be questioned, who ought to be moved along with a sharp word, who ought to receive a tap on the shin with a billy club as he is sent to the Bowery, and who ought to be arrested. Some bums should be given second and third chances, others not: When the police could use their own judgment about arresting vagrants—whom only morons and liberals could see as desirable—our streets were, by today’s standards, idyllic.
Not too long ago, I left a good hotel on Capitol Hill to walk to my car and was surrounded by seven or eight “street people” demanding cash. It was dusk, no one else was around, and they exuded that motiveless racial malignity that characterizes the underclass. That experience was, of course, nothing unusual. In every major American city, bums rule. It wasn’t only the Bush depression that lowered retail sales last Christmas. Aggressive tramps thronged big-city shopping areas, keeping many women shoppers away.
Thanks to the federal courts, aggressive derelicts live in airports, train stations, subways, and ATM vestibules. One federal judge ruled that the wall-to-wall bums in New York City’s Penn Station cannot be ousted. Another claimed that begging in the subways is constitutionally protected as “free expression.” Still another said that a malodorous tramp could not be shown the door of a New Jersey public library, even though he was making everyone sick to his stomach and terrorizing little children with his lunatic stare. The city has agreed to pay this man $150,000 if he and the ACLU (who else?) promise to bring no more suits about his “rights.” In the good old days, he would have been tossed out of the library and onto the sidewalk and, if he persisted, into the pokey.
Vagrancy laws originated in England in 1349, with Edward Ill’s Statute of Laborers. The Black Death had cut the supply of workers and therefore raised their wages. The king sought to hinder this process by making it illegal for ex-serfs to move from town to town to seek higher wages. That was special interest legislation of the worst sort, but there was a legitimate aspect to the law as well: the social breakdown that accompanied the Black Death had led to a vast increase in crime, especially wandering “wicked rogues” who robbed and murdered travelers. The statute was also aimed at them.
Sir William Blackstone gave much attention to the English vagrancy acts, including one of Henry VIII’s that targeted gypsies, a people whose entire culture—then as now—is based on theft. The gypsies were described as “outlandish people, calling themselves Egyptians, using no craft nor feat of merchandise, who have come into this realm and gone from shire to shire and place to place in great company, and used great, subtil, and crafty means to deceive the people; bearing them in hand, that they by palmistry could tell men’s and women’s fortunes; and so many times by craft and subtilty have deceived the people of their money, and also have committed many heinous felonies and robberies.” To “the honor of our national humanity,” such wanderers are no longer executed, said Blackstone, but rather subjected to fines and jail.
Under the Elizabethan Poor Laws, beggars were forbidden to move; otherwise, it was thought, “foreign beggars” would become a burden on more desirable areas. Taking a different view from Mr. Munoz- Marin, Blackstone believed such laws were justified because “idleness in any person” is a “high offense against the public economy.” The “court of Areopagus at Athens punished idleness,” he noted, and the Roman law “expelled all sturdy vagrants from the city.” The English common law has long identified “idle and disorderly persons” and “rogues and vagabonds” as “offenders against the good order.” The idle and disorderly, who could be punished with a month in jail, included those who could support themselves and instead lived on charity. Rogues and vagabonds, who could be whipped and sentenced to six months in jail, included the homeless: beggars who lived “in the open air,” in tents, or in wagons.
When the American colonies seceded from the British Empire, they retained most English laws and customs, including those against vagrants. In fact, our founding document, the Articles of Confederation, assured all citizens the privileges and immunities of the several states, except for “paupers, vagabonds, and fugitives from justice.” The commerce clause of the Constitution, the origin of so many evils, was early used to try to stop the states from inhibiting vagrants. An 1837 Supreme Court case challenged a New York requirement that ship captains report the names and last addresses of their passengers, to help keep paupers out. Any ban on free migration violated the commerce clause, it was claimed. This was the Old Republic, however, and the Court ruled in favor of New York. It is “as necessary,” it said, “for a state to provide precautionary measures against the wicked pestilence of vagrants, vagabonds, and possible criminals as it is to guard” against a “physical pestilence.” The justices did not foresee the day when it would be politically incorrect to guard against a physical pestilence as a social one.
In 1903, the Court upheld a California law expelling Japanese immigrants who had no “visible means of support.” The Japanese-American treaty that gave citizens of each country reciprocal rights did not, of course, apply to “that class who from their habits or conditions are ordinarily and properly the object of police regulations designed to protect the general public against contact with destitute or impoverished persons.” By 1941, however, in a New Dealized America, the Court struck down a California statute forbidding the importation of indigents. Such a law was unconstitutional, said the Court, because “the relief of the needy has become the common responsibility of the whole nation.” It rejected the traditional view that paupers are more likely to commit crimes, “since poverty and immorality are not synonymous.” (That may be true in the country; in the big city, there is all too close a correlation.) In a separate opinion. Justice Douglas agreed with the commerce-clause-based decision, but also defended an alleged “right to travel.” The pernicious “rights revolution” was well under way by this time, and egalitarians like Douglas targeted vagrancy laws because they sought to protect bourgeois society from bums, while taking no notice of bums’ rights.
An influential law review article in the 1950’s denounced the police for moving vagrants out of middle-class areas and into the Bowery; “the freedom to move requires more than the freedom to be sent to a restricted ghetto.” Also considered monstrous by liberals was the use of the vagrancy laws against people likely to commit crimes, a concept that dated to 1404 when “suspected persons” were first included in the class of vagrants. In 1965, the Court overturned the conviction of a Birmingham, Alabama, civil rights protester for refusing to move along when ordered to do so by a policeman. Such a law “bears the mark of a police state,” said the Court. More than twenty-five years later, most Americans would gladly exchange that “police state” for the vagrant state that has replaced it.
In 1966, Douglas called vagrancy laws unsuited for America, whose open spaces created a land of “free-roaming people who shaped their own character.” In the same nutty spirit, liberal Catholic bishops recently created a ministry for “People on the Move.” In his 1972 court triumph over vagrancy laws, Douglas made what he must have felt was the clinching argument: vagrancy laws “could be used as a means of social control, as poor people, non-conformists, dissenters, idlers, may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police.” Twenty years later, how many Americans would find that vision anything to worry about?
In 1988, sleeping and loitering in the subway was found to be constitutionally protected by a New York judge. A federal judge condemned vagrancy laws for having the “practical effect of keeping a public problem involving the human beings out of sight and therefore out of mind. Indeed, it is the unsettling appearance and message conveyed by beggars that gives their conduct its expressive quality.” What was once a mark of British-American civilization is now a hate crime.
Begging is, of course, a euphemism. The actual process is intimidation, and money given under these conditions is hardly a charitable contribution, although the ACLU has long sought to blur the distinction.
Despite the popular conception. Christian charity does not mandate warm feelings about bums, let alone require us to subsidize their idleness. We are instead to seek what is in their best interests, temporally and eternally. What is mainly in their interest is that they not be bums. As the New Testament tells us, “he who does not work, neither shall he eat.” As Patrick J. Buchanan said in New Hampshire, there is no “constitutional right to panhandle. If they keep doing it, I would pick them up for vagrancy and lock them up. We have a right, especially women and children, to streets that are safe and free from fear. We’ve got to take the streets back.”