The Odd Clauses

by Jay Wexler

  The Third Amendment’s brief appearance in Griswold—as but one small part of an argument quickly abandoned by the Court as absurd—turns out to be the provision’s high point over the past two hundred years or so. This is not to say, however, that the Third Amendment was always a clause with second-class constitutional status. To the contrary, the framers thought the protection afforded to homeowners by the Third Amendment was among the most important provided by the Bill of Rights. Indeed, controversy over British quartering of troops was a key factor leading up to the Revolution itself.

  The practice of quartering troops in England and a few other places in Europe goes back at least to the eleventh century, and efforts to resist it appear to reach back almost as far. The twelfth century charters of a number of important cities and towns in the United Kingdom, including London’s, prohibited the “billeting” of troops in private homes. Controversy over quartering in England heated up considerably in the seventeenth century. When James II was removed from the throne in the Glorious Revolution of 1689, his removal was justified in part by his refusal to adhere to Parliament’s 1679 Anti-Quartering Act. Following the ascension of William III, Parliament passed the Mutiny Act, which explicitly prohibited the billeting of troops in private homes without consent.

  Meanwhile, in the Colonies, English troops had been quartering in private homes since at least the 1670s. This, understandably, led to tensions and occasional violence, which accelerated during the French and Indian War of the 1750s and ’60s. In 1765 Parliament passed the Quartering Act. That act required the Colonies to provide barracks and supplies for English soldiers and further provided that if such barracks did not exist, soldiers were to be housed in “inns, livery stables, ale houses, victualling houses and the houses of sellers of wine by retail to be drank in their own houses or places thereunto belonging, and all houses of persons selling of rum, brandy, strong water, cyder or metheglin. . . .” Finally if there weren’t even enough inns, livery stables, or metheglin-serving victualling houses left for the troops, the soldiers were allowed to take shelter in private buildings like uninhabited houses, outhouses, or barns. To help fund the Quartering Act’s requirements, Parliament passed the Stamp Act of 1765, a law that led to the Boston Tea Party eight years later.

  Once the colonists dumped tea into Boston Harbor, the road to revolution was a short one, fueled in no small part by the quartering issue. England responded to the Tea Party with five laws (the “Intolerable Acts”), including the second Quartering Act of 1774, which allowed troops to take shelter not just in unoccupied homes and outhouses, but in occupied private homes as well. Two years later, when the colonists issued the Declaration of Independence, they included the practice of troop quartering as one of their many grievances, complaining of George III’s “quartering large bodies of armed troops among us.” It was no surprise to anyone that after the war, a number of states included antiquartering provisions in their own laws and that when the framers finally got around to drafting a bill of rights, the antiquartering clause was right near the top of the list.

  Have troops ever been quartered in private homes in violation of the Third Amendment? According to Tom Bell, now a professor at the Chapman University School of Law and author of probably the most comprehensive treatment of the Third Amendment ever written, the answer is yes—troops were quartered during both the War of 1812 and the Civil War. With respect to the quartering of troops in Union states during the Civil War, Bell explains that: “Not only are there specific reports of troops having been quartered in Union territory, but the Secretary of War alluded to having seized the homes of loyal citizens to use as barracks. The practice grew so common that the military developed a sophisticated system for reviewing claims ‘for rent for houses . . . seized and occupied by the military authorities in loyal States during the rebellion.’ ” Looking at records of the congressional committee that oversaw these kinds of claims, Bell reports that there were potentially “very many millions” of dollars of claims stemming from quartering practices during the Civil War, although it appears that Congress never actually paid any of them.

  The Third Amendment has basically been hibernating for most of its existence. For the most part the courts have not had to deal with the amendment at all. There are a few exceptions. In 2001 a federal appellate court in Denver rejected the argument that military aircraft training in the skies over a plaintiff’s property violated the plaintiff’s Third Amendment rights, saying that the argument “borders on frivolous.” In other cases, claims have gone over the border to frivolous-land. In one from 1972, some military reservists said that the secretary of defense had violated their Third Amendment rights by forcing them to march in a parade that would promote the candidacy of Spiro Agnew. The court dismissed the argument as “inapposite,” which was unsurprising, given that a parade is not a house.

  Only one court case in the history of the Republic has actually raised a real Third Amendment issue. That case, decided by the federal Second Circuit Court of Appeals in New York in 1982, was called Engblom v. Carey. About forty prison guards employed by the Mid-Orange Correctional Facility in Warwick, New York, lived in employee housing on the facility’s grounds. When correction officers across the state went on strike, the state evicted the officers from their prison housing and used the rooms to house members of the National Guard who had been brought in to replace the striking employees. The court said that this was a violation of the Third Amendment. The state had argued that since the guards were tenants rather than owners of their housing, the amendment did not apply. The court disagreed, borrowing from case law under the more popular Fourth Amendment and finding that the employees had a substantial enough expectation of privacy in their rented housing to be able to claim protection under the Third Amendment. In further proceedings, however, the court found that individual state officials would not be liable for money damages to the displaced employees. Under the settled legal doctrine of “qualified immunity,” damages (as opposed to an injunction) are only available if government officials violate a “clearly established right.” Since nobody had ever previously held that anyone had ever violated anyone’s Third Amendment rights, the court found that the rights of the employees violated by the state officials, while real, had not been “clearly established” so as to entitle the plaintiffs to any money. Next time, however, the officials will probably not be so lucky.

  Engblom v. Carey aside, commentators have largely treated the Third Amendment as either an irrelevancy or a joke. As Professor Bell eloquently laments: “Pity the Third Amendment. The other amendments of the United States Constitution’s Bill of Rights inspire public adoration and volumes of legal research. Meanwhile, the Third Amendment languishes in comparative oblivion. . . . Lawyers twist it to fit absurd claims, the popular press subjects it to ridicule, and academics relegate it to footnotes. Is this any way to treat a member of the Bill of Rights?” In a short piece called “Is the Third Amendment Obsolete?” Harvard’s Morton Horwitz, maybe the country’s leading legal historian, explains how, when he told his colleagues about his invitation to speak about the Third Amendment, many of them “sheepishly asked me what the Third Amendment is.” In the constitutional zoo, most experts would probably identify the Third Amendment as a dodo bird.

  Some Third Amendment jokes are, admittedly, pretty funny. Not so much the one in a cartoon found on the ACLU’s Web site, where George W. Bush decides that, like the Fourth Amendment, the Third Amendment “has to go.” In the final frame of the comic strip, a soldier sitting at a family’s dinner table explains “why you always do cavity searches before dinner,” while the daughter asks him to “pass the gravy.” Yuck. Somewhat better was the guy dressed as a British soldier at the Rally to Restore Sanity in Washington, DC, last October, holding a “Repeal the Third Amendment” sign. But the crème de la crème of Third Amendment jokes is surely the Onion’s article “Third Amendment Rights Group Celebrates Another Successful Year,” where it is reported that the National Ant
i-Quartering Association (“NAQA”), whose “familiar slogan” is “Keep the fat hands of soldiers out of America’s Larders!” and whose “fully staffed regional centers” are always available for citizens to “report Third Amendment abuses,” has just celebrated its 191st anniversary of “advocating the protection of private homes and property against the unlawful boarding of military personnel.” The article, which I would print in full here if it weren’t for the “copyright laws,” ends by explaining that the group’s new president replaced its former leader, who had recently “left the organization to chair the Citizens Committee for the Right to Drink, a 21st Amendment rights group committed to the continued legal status of alcohol for Americans of drinking age.”

  Does the Onion have a book review section?

  Will the Third Amendment ever regain the fame enjoyed by its well-known brothers and sisters in the Bill of Rights? Before I get to that question, it is worth pointing out that if you think about it for a while, you might conclude that the Third Amendment has in fact done a better job than any of its neighbors. The article in the Onion is obviously meant to be funny, but I think there is something serious to be said for the fact that the government has not quartered any troops in private homes for at least the past 145 years. Just because the Third Amendment hasn’t come up much doesn’t mean that it hasn’t done any work. Maybe the amendment isn’t hibernating at all. Maybe it is more accurate to say that it is just quietly doing its job, making it simply impossible to imagine under current circumstances that the army or National Guard or any other military organization could take shelter in private homes. Who knows how our history might have been different were it not for the Third Amendment? Maybe the government would have adopted a policy of quartering troops very early on, and maybe as a result that policy would seem so natural today that we wouldn’t even question it. I mean, people rarely think about plankton, and plankton would never be a popular zoo exhibit even though some plankton are in fact animals and not plants (zooplankton, specifically), but that doesn’t mean that plankton aren’t doing an important job—they essentially sustain our massive ocean ecosystems. Perhaps we shouldn’t make fun of the Third Amendment any more than we should make fun of plankton, which means that we should make fun of it once in a while, sure, but not too often.

  On the question of fame, though, there are two ways that the Third Amendment could rise to prominence. One way is for the courts to start interpreting the clause to apply to situations far beyond what the language of the amendment would seem to suggest. This would hardly be the first time that courts have done such a thing—think about the Lochner era, for instance, or our modern right to privacy, which I just talked about like eight pages ago. Usually when courts do this, they do what the scholars we met back in chapter 5 suggested they might do with respect to the requirement that you have to be at least thirty-five years old to become president. They find that the clause represents a broad principle rather than simply being limited to the specific stuff that is pointed to by the language. Thus, courts have interpreted the bill of attainder clause, as we saw in chapter 9, to prohibit all legislative punishments rather than only legislatively-imposed death penalties involving awful things being done to one’s privy-parts. Or, as we saw back in chapter 6, the Supreme Court has interpreted the Tenth Amendment, whose language hardly suggests anything at all, to bar the federal government from commandeering the administrative apparatus or employees of the states.

  Unfortunately for the Third Amendment, no court has yet seen fit to apply the clause to anything beyond the straightforward quartering of troops in private homes. Perhaps this is because the language of the clause is so very specific, or perhaps it is because the Fourth Amendment, with its prohibition of unreasonable searches and seizures, already covers the kinds of things that courts might have extended the Third Amendment to cover. Or, then again, perhaps it is because nobody has ever made a plausible creative argument before a court on behalf of the beleaguered amendment. On this latter point, however, some scholars have at least tried to come up with something to resurrect the clause, even if these theories have thus far merely graced the pages of academic journals rather than court documents.

  One spirited writer, for example, has argued that the Third Amendment stands for the principle that civil power should always be superior to military power in times of peace. He writes: “The Third Amendment establishes an explicit limit to the military’s power, vesting a right in the individual that, at least textually, appears to be absolute in times of peace. In this sense, the Third Amendment stands alone as a constitutional provision that reflects the judgment that at least one peacetime right will always trump military necessity no matter what form it takes.” The writer goes on to argue that the Third Amendment, interpreted in this broad fashion, prohibited the federal government from requiring private universities to allow the military, with its “don’t ask, don’t tell” policy for gays and lesbians, access to campuses for recruiting purposes, if the universities wanted to continue to receive certain federal funds. Similarly, another writer has argued that the Third Amendment establishes “a categorical ban on soldiers enforcing law against civilians in all areas in which private citizens may exclude others.” Applying this principle, the author argues that the amendment places substantial limits on the federal government’s power to intercept through wiretapping the “communications of individuals living in the United States.” According to this theory, officials of the National Security Agency are “soldiers,” and their wiretapping counts as “quartering.” Finally, two professors have argued in a prominent environmental law journal that the Endangered Species Act, by requiring private landowners to “quarter” endangered species on their property, violates the Third Amendment. It turns out, however, that the article is a forty-one-page satire that pokes fun both at the act and the method of constitutional interpretation that would extend constitutional provisions beyond their plain language.

  The other way, of course, that the Third Amendment might rise to prominence is if our current, relatively peaceful situation here in the United States were to change radically. In some new, highly dangerous situation, one could easily imagine circumstances under which the military might find it advantageous to quarter its troops in private homes. Peggy Noonan’s hypothetical that started the chapter (and my lefty permutation of her scenario) is one example, but hardly the only one. Noonan herself, for instance, suggests one more: “Suppose that down the road there is a nuclear or biological or chemical incident in, say, downtown Manhattan. The island is quarantined; in time there is civil unrest; in time the 101st Airborne comes in to restore the peace. Where do they live in this chaotic and uncontrolled environment as they realize they must occupy the island? Perhaps among the people. The government condemns their property and seizes it.” I’m sure you can think of others. The world is filled with dangers—not just terrorism and civil unrest but also diseases, plagues, chemical explosions, earthquakes, tidal waves, killer bees, and who knows what else—all of which could lead to the military playing a more involved role in the daily life of citizens. If there’s no clear place where the soldiers would obviously stay (particularly possible if, for instance, an earthquake has knocked down the obvious place, or if killer bees have already taken up residence there), then the issue of quartering troops in private homes becomes a distinct possibility.

  The notion that the military might want to house troops in private homes during times of crisis, rather than in times of outright war, raises some interesting legal issues. Indeed, although Noonan implies with her hypothetical that the Third Amendment would save homeowners from forced quartering in the case of civil rebellion, it is not entirely clear that that’s the case. Look at the specific language of the Third Amendment. In “time of peace,” quartering is unconstitutional unless the owner consents. In “time of war,” however, quartering is unconstitutional unless done “in a manner to be prescribed by law,” which means that if we are in a time of war, Congress can pass a l
aw authorizing the quartering of troops. But what counts as a “time of war”? Does the “war” referred to in the Third Amendment mean only “war” declared by Congress under Article I—something we saw in chapter 7 that has only happened five times in history? Or might it also apply to something short of formally declared “war,” and if so, what? Moreover, if “war” does mean only formally declared war, then what happens if there’s no formal declaration of war but we’re not in a time of peace, either? Since the amendment seems silent on that question, might the president be allowed to order quartering under those circumstances? Perhaps someday a scenario like Noonan’s will arise and the Supreme Court will be called on to decide these issues. It would be a fascinating constitutional case, but let’s hope it never comes to that.

  So, the Third Amendment? It’s probably the clause in the Constitution that people make fun of the most (the slavery portions are too distressing to make real fun of), but is it really a constitutional dodo bird? Maybe, as I’ve suggested, it’s better to think of it as plankton. Or perhaps, as Noonan reminds us, the Third Amendment could turn out to be a coelacanth. The coelacanth is a huge bottom-dwelling fish with a teeny-tiny brain that looks kind of like a science fiction monster and that was extremely common hundreds of millions of years ago. Having never seen a live one before, scientists had long thought coelacanths had gone extinct along with the dinosaurs at the end of the Cretaceous period, but then a museum curator discovered one swimming near the Chalumna River off the South African coast in 1938. Since then, coelacanths have been found as far away from Africa as Saint Lucia and Indonesia.

  One of the best quotes I found while doing research on this book comes from a judge on the Sixth Circuit Court of Appeals named Martha Craig Daughtrey, who, in a dissent responding to the court majority’s argument that some provision of the tax code was unimportant because the IRS hadn’t litigated a case involving it in the twenty-two years since it was enacted, made this point about the completely unrelated Third Amendment: