13 December 2014


'A Homeless Bill of Rights (Revolution)' by Sara Rankin in (2015) Seton Hall Law Review (Forthcoming) examines
an emerging movement so far unexplored by legal scholarship: the proposal and, in some states, the enactment of a Homeless Bill of Rights. This article presents these new laws as a lens to re-examine storied debates over positive and social welfare rights. Homeless bills of rights also present a compelling opportunity to re-examine rights-based theories in the context of social movement scholarship. Specifically, could these laws be understood as part of a new "rights revolution"? What conditions might influence the impact of these new laws on the individual rights of the homeless or the housed? On American rights culture and consciousness?
The article surveys current efforts to advance homeless bills of rights across nine states and the U.S. territory of Puerto Rico and evaluates these case studies from a social movement perspective. Ultimately, the article predicts that these new laws are more likely to have an incremental social and normative impact than an immediate legal impact. Even so, homeless bills of rights are a critical, if slight, step to advance the rights of one of the most vulnerable segments of contemporary society. Perhaps as significantly, these new laws present an opportunity for housed Americans to confront our collective, deeply-rooted biases against the homeless.
Rankin comments -
A new movement is afoot: in June 2012, Rhode Island passed the mainland’s first Homeless Bill of Rights. State legislatures in California, Hawaii, Illinois, Connecticut, Oregon, Vermont, Missouri, and Massachusetts quickly followed suit, introducing their own bills. So far, Connecticut and Illinois have already joined Rhode Island with freshly enacted homeless bills of rights. Other states are actively evaluating the prospects for such legislation.
Homeless bills of rights articulate a vibrant range of rights and remedies. For example, some provide the right to shelter, sustenance, or health care, while others incorporate rights against employment discrimination or police harassment. Some provide civil remedies for those whose statutory rights have been violated; at least one vests the creation, implementation, and enforcement of rights in an administrative entity. Although these new laws illustrate varying substantive provisions and strategic compromises, they share the overarching goal of improving the lives of homeless Americans.
The emergence of this new legislative tool raises compelling questions. What exactly is a homeless bill of rights? What is its purpose? What are the differences and similarities across jurisdictions? What types of rights are or should be covered? How, if at all, are these rights different than those afforded to housed individuals? Do these laws announce any new rights? Or are they merely statutory reiterations of constitutional or civil rights already afforded to the homeless—or for that matter, to housed individuals? If homeless bills of rights are only statutory reiterations of already existing rights, how might these laws meaningfully improve the lives of homeless people?
On the other hand, if homeless bills of rights actually purport to create new rights for homeless people—such as positive social welfare rights—should advocates fight for judicial enforcement provisions? If a right is not judicially enforceable, is it really a right at all? Many legal scholars and homeless advocates contend that judicial enforceability is the sine qua non of a right. Indeed, virtually all homeless bill of rights so far advanced on the mainland United States explicitly provide for civil remedies. But others dispute the necessity of judicial enforceability to the realization of a right, instead emphasizing the realization of rights through agency implementation. After all, judicial rulings do not necessarily translate to agency implementation; to the contrary, judicial enforcement may be ineffectual or even provoke legislative repeal of a law. Accordingly, should homeless advocates expend significant resources to ensure homeless bills of rights contain civil remedies provisions? What approach best ensures the implementation and realization of rights for homeless Americans?
By their very nature, homeless bills of rights invite such robust rights-based inquiries. Ultimately, the value of a homeless bill of rights must be measured by its potential contribution to the lives of homeless Americans. Of course, any ideal outcome would significantly revise how American society perceives, values, and incorporates homeless people—the law would be part of a social movement that transforms relationships between the housed and homeless from exclusive to inclusive. In this respect, homeless bills of rights might be understood as part of an effort to naturalize a normative vision. Social movement theory can help to explain how such a normative vision might become a reality.
This Article is the first to identify and analyze the new, growing phenomenon of homeless bills of rights in the United States. The Article is enriched with feedback and insights of homeless advocates nationwide, the result of dozens of interviews with advocates inside and outside of active jurisdictions. Part I introduces the specific context of homeless advocacy, spotlighting key issues with homelessness in the United States. Part II surveys case studies of current efforts to enact homeless bills of rights in nine states and Puerto Rico. This section briefly describes the history, content, and status of these bills, and draws substantive and strategic comparisons among these case studies. Part III introduces a rights revolution framework. Specifically, this section surveys rights-based theories and their application to social movement “rights revolutions.” It applies a rights revolution framework to these case studies and analyzes the potential challenges and benefits of this new legislative tool, both from a practical and theoretical perspective. The Article concludes that homeless bills of rights are more likely to have an incremental social and normative impact than an immediate legal impact. Even so, these new laws are an important step toward a long-overdue rights revolution for one of America’s most vulnerable populations. Perhaps as significantly, these new laws present an opportunity for housed Americans to confront our persistent, deeply-rooted biases against the homeless.