For too long, the left has largely been in a defensive posture when it comes to supporting the poor. With the notable exception of the Affordable Care Act, antipoverty advocates have largely had to focus on preserving as much of New Deal and War on Poverty programs as they can. The political will just has not been there for more funding towards things like universal basic income, public housing, or even for ensuring that food stamp assistance is enough to last an entire month. With the claim that tax-and-transfer options are the most efficient way of addressing equity concerns, while not concerning themselves with whether politicians actually adopted such transfer policies, law and economics scholars provided intellectual cover to the assertion that generally the law should not trouble itself with matters of poverty or inequality. Reagan’s view that government lost the War on Poverty became the popular view, despite the fact that welfare provides invaluable support to millions of people every year. Today’s battles involve questions such as whether it is appropriate to attach work requirements to Medicaid or to require drug testing of those receiving food stamps; long gone is the hope that government funding could eradicate childhood poverty or provide decent housing for everyone.

The idea that necessity can excuse otherwise prohibited conduct is not new. It finds expression throughout the law school curriculum, though it often centers on those caught out at sea who have no choice but to do something illegal, such as use someone else’s dock, in order to escape death. While discussions of homeless encampments tend to focus on the use of public parks or other public areas such as overpasses or sidewalks, claims of necessity – as exemplified by the private boat dock – are not limited to public land. The interests of private parties, in land and in goods, are equally vulnerable to the necessity-based claims of those without adequate food or shelter.

Most of the time the demands that strong property rights impose on non-owners (like the unhoused) are ignored or glossed over, with owners enjoying a default expectation that others will respect their exclusionary rights and that the state will protect those same rights. A robust version of necessity complicates things for owners by making their property less, not more, secure, and making them vulnerable to the claims of those seeking to fulfill their basic needs.

Necessity forces the public and those with private wealth to recognize that so long as public spending does not adequately address their basic needs, the poor have valid claims to public, as well as private, land. Such claims threaten the ordinary expectations of the owners and, as a result, might help change the political landscape such that everyone, not just those sleeping on sidewalks or uncertain about where their next meal will come from, better recognizes the importance of proactively ensuring access to basic needs and putting an end to homelessness and food insecurity.