A three judge panel of California’s “Ninth Circus,” as Rush Limbaugh likes to call the United States Court of Appeals for the Ninth Circuit, has preposterously decided that the enforcement by the City of Los Angeles of a municipal ordinance, which states that “no person shall sit, lie or sleep in or upon any street, sidewalk or public way,” violates the constitutional prohibition against cruel and punishment by criminalizing “the status of homelessness by making it a crime to be homeless.”

Clinton appointee Kim McLane Wardlaw wrote in her decision:

(this) case stands for “the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”

Wardlaw scoffed at the position Los Angeles officials took in the case.

“The City…apparently believes that [the plaintiffs] can avoid sitting, lying and sleeping for days, weeks, or months at a time to comply with the City’s ordinance, as if human beings could remain in perpetual motion. That being an impossibility, by criminalizing, sitting lying, and sleeping, the City is in fact criminalizing [the plaintiffs] status as homeless individuals.”

The judge said that evidence introduced in the case, entitled Edward Jones v. City of Los Angeles, showed the plaintiffs “are not on the streets of Skid Row by informed choice.”

The notion that the framers intended to ban municipal prohibitions against public dormition (or vagrancy) as “cruel or unusual” is patently ridiculous. Sturdy beggars were publicly flogged for idleness in most states at the time of the adoption of the Bill of Rights.

Even farther-fetched is Judge Wardlaw’s notion of non-volition. If an individual ceases attempting to lead a responsible life, declines employment, and chooses to devote his waking hours to the cheapest possible forms of drug or alcohol-induced intoxication, funded by crime or begging, and neglects to make provision for his own shelter, he didn’t have a choice? When exactly was it that choice vanished?

One of the most apt commentaries on Judge Wardlaw’s absurdly indulgent philosophy can be found in Fritz Lang’s 1931 film M.

In M, the crimes of a child-murderer have paralysed both ordinary life and criminal activity in Berlin, as the police furiously search for the pedophile serial killer. The criminal underworld decides to take matters into its own hands, in order to remove the extraordinary police surveillance and get back to normal profitable business. Finally, Hans Beckert (played by the young Peter Lorre), the murderer of small children, is trapped by the criminals in a basement, and hailed before an informal underworld tribunal, which has every intention of ordering his immediate extermination.

“Ich kann nicht anders,” (I cannot do otherwise) Lorre screams pathetically, pleading for mercy (which is not forthcoming).

(Ironically, Beckert is quoting Martin Luther‘s response, April 1, 1521, to the efforts of the Emperor Charles V at the Diet of Worms to persuade him to reconcile with the Catholic Church, and avoid dividing the Christian Church.)

Liberals, like Judge Wardlaw, confuse the existence of the involuntary impulses with having no choice about complying. Lots of people, probably almost everyone, feels an inclination to behave completely irresponsibly, in a fashion which could –in the end– lead to a life spent sipping Thunderbird in the gutter, and panhandling for quarters, but not everyone gives way to that particular impulse. I daresay there must be in the world people who feel sexual temptations involving children, who don’t choose to implement them, as well. It is difficult to see how one can excuse Willie the Wino for having no choice (Ich kann nicht anders!), and not excuse Hans Beckert and Ted Bundy too.