3.1 Do People Hold a Right to Exist? Part 1

In Grants Pass v. Johnson, 603 U,S,____(2024) the Leonard Leo branch of the United States Supreme Court held that people may be fined or imprisoned for sleeping on public land. Their justification was that the violation being punished was sleeping or camping in public areas, not being homeless. Given that all land is private or public, and that sleep is essential, the holding makes the poverty of those unable to afford a residence criminal.

In her dissent Justice Sotomayor noted that officials may not displace certain rules associated with criminal liability that are “‘so old and venerable’, so rooted in traditions and the consciousness of our people[,] as to be ranked as fundamental” (p 27). “That, for a crime to be committed there must be actus reus (evil meaning mind) and mens rea (evil-doing hand).” Trying to survive is neither. Her reference to traditions and consciousness reflects the Western legal heritage of natural laws or higher rights. That is our question: by tradition and consciousness do people have a right to exist?

The United States has blended inherited culture and unique history. Geographic limits constrained European and English political, economic, and legal principles before the American Revolution. England imported its great wealth from its colonies. By contrast vast North American land and resources buffered the early nation from the pressures that shaped Europe: limited space and resources; surplus populations; and labor struggles. American abundance fed our presumption that in the great frontier anyone could start a farm, a business, do something economically. Today, in Grants Pass, Oregon, that isn’t true. People are homeless.

Is there a deep tradition and consciousness of a right to exist?

Gleaning the field is the Biblical command to leave the crops at the edge of the field and any that drop during harvest to be gathered by the poor, widowed, and foreigners. In the transition from Republican to Imperial Rome the law distinguished between laws that the government or emperor imposed and fundamental laws and rights established by nature.

Despite the Roman Empire’s collapsed, it’s legal foundations continued to influence Western Europe, just not uniformly. The Holy Roman Empire imposed the Divine Right of Kings (Sir Robert Filmer’s argument). Divine Right meant the king or his agents could seize what they wanted, kill whom they chose.

Other European principles influenced American traditions and consciousness. Despite stripping women of rights, the Napoleonic Code (France 1804) took a minimalist approach: everything was legal unless explicitly criminalized. The Norwegian Code of the Realm (1274) influenced Northern European countries. Its lay participants and flexibility minimized the wealthy’s ability to manipulate the laws for their self-interest. For example, the poor were not to be punished for stealing food for themselves or family. They were the needy poor. Similarly the American Wendat believed in a base line of sharing because people who are starving, lacked adequate clothes, or shelter in a snow storm are not…free to do…anything other than what it takes to stay alive.(1) These reflect limited government authority and traditions or consciousness of a right to exist.

The United States developed its legal system from English law, which combined the Justinian Code with England’s unwritten Common Law. Common law “rights” arose from the history of public interaction: Sotomayor’s “traditions and consciousness”. Like Roman rights coming from nature, common law rights existed above the King. A question asked in the turmoil following the Norman Conquest (1066) was whether unwritten laws could be enforced?

King John’s (reign 1199-1216) legal tutor Ranulf de Glanville said yes.² He wrote that English laws were unwritten, that it was utterly impossible for the laws and rules of the realm to be reduced to writing. Individuals indeed held rights that neither Crown nor government could overrule. The foundation of the United States and its laws is that rights arise from ‘nature” and “nature’s God”. Rights are not created, granted, or limited by any document or government.

The principles that natural rights or higher laws come from nature or nature’s God, and  belief that they hold authority over king or government justified the Declaration of Independence and guided drafting the Constitution. The Declaration of Independence accused King George III of violating higher laws, despite them not being enumerated in law. The Constitution established the limited authority of states and the federal government to infringe on individuals’ rights.

Two beliefs shaped the United State’s legal heritage. First, natural or higher laws came from nature or nature’s God. Second these higher laws held authority over federal or state legislation. These principles justified the Declaration of Independence and the Constitution.³

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

How did limits on Crown and government arise?

England rights were shaped by the tradition of the “commons”: land in the kingdom held collectively by the people. By tradition and consciousness people had the right (usus) to freely use the commons to sustain their lives. The principle of “fructus” gave them the right to keep the product of their labor. You plant the wheat, you get to harvest the wheat, save for the gleaning. The product of a person’s labor was what Locke and Rousseau meant by “right of property”⁴. So long as the person or family farmed that land they held an exclusive right to use, but not own, that parcel of the commons. The house or shed they built was likewise theirs. However, no one could fence off vast areas that they did not use, threatening others’ livelihood. By heritage, sleeping or pitching a tent on public property is usus of the commons.

Next: The Battle of Hastings (1066) changed the traditional right to live, work, and sleep in the commons. The Charter of the Forrest (1217) and the right of access to the necessities of life.

 1 Graber, David and David Wengrow The Dawn of Everything: A New History of Humanity Farrar, Straus and Giroux, New York 2021 Paraphrase from p66.

(2)  Ranulf de Glanville wrote the first commentaries on English Law: Treatise on the Laws and Customs of the Ream of England (1180s)

 (3) I’ll address the debates about adding a specific list of rights in the future.

 (4) Rousseau considered Locke’s defense of claiming unused property, terra nullius, the downfall of society, but a fete accomplishment. Discussed in the future.