by Jay Marshall Wolman
In asking what to do with this blog, Dan suggested that we blog about the Third Amendment. Marc actually blogged about a Third Amendment case here and here.
If people thought Second Amendment jurisprudence was thin (at least until DC v. Heller rolled around), Third Amendment cases are fewer and further between. The text reads:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Based on the text alone, it is understandable, then, why it would rarely be called up. When the country was founded, the memory of British troops commandeering a house was fresh in the minds of the citizenry. Battles were fought in the continental United States. Barracks were few. As a practical matter, we now have sufficient domestic fortifications (bases, forts) that the need to commandeer a house, especially in peace time, seems unnecessary. And, we haven’t fought a war on the home front in quite a while. In short, there would be little cause to call upon it.
However, strict textual jurisprudence sometimes gives way to more expansive interpretation. Thus, although First Amendment is silent about the States and only discusses what Congress cannot do, its incorporation as a fundamental right under the Fourteenth Amendment forces us to basically treat “Congress” as any legislature. In a similar vein, then, some have looked beyond the U.S. Army for what a “Soldier” is.
In Engblom v. Carey, the U.S. Court of Appeals for the Second Circuit actually found that the Third Amendment was a fundamental right, incorporated under the Fourteenth Amendment. It did so to find that National Guardsmen were “Soldiers” in a case involving a prison guard strike, where the prison guards were kicked out of their official housing so that the National Guardsmen could protect the prison during the strike. (Though the case established the right, since it was a new decision, it wasn’t deemed to abrogate qualified immunity on remand.) However, in the Nevada case Marc blogged about, Mitchell v. City of Henderson, municipal police officers were not deemed to be Soldiers.
The Third Amendment has also been used as a supporting argument. Most notably, in Griswold v. Connecticut, the right to be free from quartering was among the penumbra of enumerated rights identified by Justice Douglas to cobble together an implied fundamental right of privacy. But, realistically, there will be few direct Third Amendment cases, though as police militarize more (Mitchell is just one case about a SWAT team), there may be greater opportunity for such challenges to be presented, clarifying the distinctions between militarized police and the National Guard.
In addition, Glenn Reynolds suggested that electronic surveillance might be susceptible to a Third Amendment challenge. I am not sure I agree that quartering a bug or spyware is the same a quartering a soldier. One represents a physical imposition, though both do intrude upon the privacy of a home. For a proper challenge, though, one would need a case where national security interests are implicated, rather than basic policing (which more implicates Fourth Amendment rights).
For further reading, I commend Prof. Reynolds’s paper as part of the recent Tennessee Law Review Third Amendment Symposium; and, until a new case comes along, then maybe you might want to put a copy of the published symposium on your shelf. Those of us waiting with baited breath should band together to remain vigilant and look for opportunities to bring more 3A cases. Thus, it is with great pleasure that I announce that I am forming the Third Amendment Lawyers Association. We are presently looking for a headquarters; your house looks pretty good.
**UPDATE** The Website for the Third Amendment Lawyers Association (ÞALA) is now live!
