Follow this authorGeorge F. Will's opinions

But by erasing the distinction between an activity and a status, such reasoning erases individual agency, a foundational concept of law. And it potentially places sweeping limits on what conduct can be criminalized. The 9th Circuit transforms the Eighth Amendment from a restriction on kinds of punishment into a doctrine that radically dilutes the idea of criminal responsibility.

An amicus brief from the Pacific Research Institute notes that, in all eras, vagrants have experienced pressures from circumstances. (As have most criminals.) So, is any punishment disproportional for behavior an individual cannot control? What about a “compulsive” desire for child pornography? Beware, the PRI brief says, of “simplistic dichotomies between voluntary and involuntary conduct or avoidable and unavoidable choices.”

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The 9th Circuit has, in effect, created a subsidy for being homeless, which often is the outcome of multiple choices. And if homeless people lack, as some of their advocates seem to say, volition in controlling their behavior, they lack the capacity to care for themselves, and could be involuntarily committed to institutions.

Homelessness involves political choices which courts are ill-suited to make. And it is a subject concerning which public health institutions can further ruin the reputations they damaged during the pandemic.

The meddlesome Centers for Disease Control and Prevention, which recommends social distancing in homeless shelters, warns that clearing encampments of the homeless will “break connections with service providers” and should not occur unless “individual housing units” are provided. The CDC is the 9th Circuit of public health institutions. But, then, the 9th Circuit seems to fancy itself a public health policymaker, sweepingly removing choices from local governments.

Since 2007, the Supreme Court has reversed 80 percent of the rulings it has........

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