Oral argument before the Supreme Court this week showed why it is nonsense to claim that anti-vagrancy laws violate the Constitution‘s Eighth Amendment provision against “cruel and unusual punishment.”

Indeed, in the vernacular sense, what is cruel and unusual is a judicial edict that says law-abiding citizens must put up with public spaces featuring major health hazards, including even the plague. Yet that’s what some lower courts, bizarrely, say citizens must do.

By any normal reading, the Eighth Amendment is intended to forbid overly harsh penalties, not to determine what sorts of conduct can or can’t be outlawed. Unfortunately, the far-left U.S. Court of Appeals for the 9th Circuit misapplied earlier precedent by issuing a sweeping injunction saying local governments must not clear homeless people from sleeping on public property unless governments supply enough specific indoor space for them.

The result has been an explosion of public homelessness in the 9th Circuit so massive that even the Democratic mayor of San Francisco held a rally to protest the 9th Circuit’s edict. Public parks have become so full of homeless encampments that the general public can’t use them, and some have become locations where diseases, even the plague, fester and spread.

On April 22, the Supreme Court heard oral arguments in the case of City of Grants Pass, Oregon v. Johnson, in which the town of 38,000 has laws imposing civil fines and, eventually, mild criminal penalties on vagrants who use cardboard boxes, blankets, or pillows to sleep outdoors. Several of the vagrants sued, saying the city’s laws violated the 9th Circuit’s edict and thus violated the Constitution.

Justice Clarence Thomas noted that the original plaintiffs face only civil penalties, not criminal ones, and that the Eighth Amendment’s “cruel and unusual punishment” clause has never been applied to civil matters. It was a good point, but nobody at oral argument pursued it further.

Skeptical justices did, though, show serious concern about several other major problems with the 9th Circuit’s sweeping order. On a very practical level, by “constitutionalizing” the matter of how local governments can protect public health and safety, the courts embroil themselves in what the city’s attorney called “line-drawing problems [that] will be endless.”

If the Constitution forbids governments from outlawing actions and appurtenances used in public vagrancy, then, as was asked by Justice Amy Coney Barrett, “Does the Constitution then make it impossible for a city to limit the use of fires and encampments, tents, those kinds of temporary shelters?” Who determines when it is that public safety is so threatened that outlawing the behavior is no longer cruel and unusual?

Must a court step in every time city councils make a new policy choice or even a new wrinkle in a policy choice? What if temporary shelter is available but not permanent shelter? What if the homeless person refuses to use a shelter because it won’t welcome his dog? Aren’t these mere policy judgments rather than actual constitutional law? Aren’t courts supposed to interpret laws rather than become policymakers themselves?

The city’s attorney correctly said, “The Eighth Amendment really doesn’t give us any answers to what cities can and can’t prohibit. It’s really administratively impossible for cities on the ground, as well as for courts, to administer” if courts become embroiled in all this.

Moreover, the punishments themselves are hardly the stuff of Eighth Amendment concerns. Quoting the city’s attorney, Theane Evangelis, “These are low-level fines and very short jail terms for repeat offenders that are in effect in many other jurisdictions. This is not unusual in any way. It is certainly not cruel.”

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Likewise, it isn’t unusual at all to apply the same sorts of anti-vagrancy laws that have been around for hundreds of years. And if the federal government can forcibly clear an increasingly unsanitary and nuisance-filled homeless community from McPherson Square in Washington, D.C., as it did 14 months ago, why can’t Grants Pass use small fines to do the same?

As do all Americans, homeless people have plenty of legal rights even without the 9th Circuit’s strange edict. Yet nowhere in history or reason has the Eighth Amendment created a right to indiscriminate sleeping around.