Papachristou and Vagrancy

Justice_William_O_DouglasI just finished Risa Goluboff’s tour de force on the campaign to reform vagrancy law, and one of the many terrific insights in her book is that Justice Douglas’s opinion for the Court string down vagrancy statutes as unconstitutional in Papachristou v. City of Jacksonville crystallized the spirit of the 1960s in a way that few other opinions do.  I hadn’t thought about Papachristou after reading it in law school, but Risa’s article a couple of years ago that discussed the connection between that case and Roe v. Wade got my attention.  On her broader claim about the decision, consider some passages from the opinion:

Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup. Letting one’s wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence.

Or this one:

Those generally implicated by the imprecise terms of the ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98. It results in a regime in which the poor and the unpopular are permitted to “stand on a public sidewalk . . . only at the whim of any police officer.” Shuttlesworth v. Birmingham, 382 U. S. 87, 382 U. S. 90. Under this ordinance,

“[I]f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.” Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 226 (1967).

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4 Responses

  1. Joe says:

    Griswold v. Connecticut shouldn’t be used in a vacuum to recognize Justice Douglas’ argument for a right to privacy.

    His view of freedom was better seen in his Poe v. Ullman dissent. The penumbra language was really a more conservative approach. In Poe he noted: ” “Liberty” is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.”

    Freedom of travel and movement was very important to him, including as a reflection of his sense of himself. Thus, in Kent v. Dulles, travel was seen as important to 1A values. Freedom of movement was recognized as a privilege of citizenship years before in Edwards v. California. And, freedom of movement was the collection of liberties he recognized in his concurring opinion for the companion to Roe v. Wade, Doe v. Bolton. Places like Russia blocked travel etc.

    It is important to see the complete whole of his constitutional argument, not have people make fun of funny sounding words like “penumbra” and argue (putting aside the 9A) such and such “isn’t in the Constitution.” His jurisprudence as a whole suggests otherwise.

  2. Joe says:

    Her article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1428965

    Looking, I see I read her first book on the road not taken in civil rights. It was interesting.

  3. Brian L. Frye says:

    Douglas’s experiences as a hobo in his youth may have influenced him on this case.

  4. Joe says:

    Douglas wasn’t really a hobo but he kinda thought he was sorta one.