The Odd Clauses (24 page)

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” . . . The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.

Notice how this passage sounds more like it is describing a haunted house from
Scooby-Doo
than the US Constitution. Eeeek, it's the emanation of the penumbra of the Third Amendment—
Has anyone seen Shaggy?!
The inherent ridiculousness of Douglas's argument no doubt explains why, by the time the Court decided
Roe v. Wade
in 1973, it opted for the lesser of the two sillinesses and grounded the right of reproductive freedom in the same place where the Court had located the reviled right to contract sixty years earlier—in the “substantive” portion of the due process clauses. If you have never understood why even some very hard-core liberal constitutional experts think that
Roe
rests on shaky constitutional ground (Ruth Bader Ginsburg, for instance, has never been a big fan of
Roe,
and John Hart Ely once said that the decision “is not constitutional law and gives almost no sense of an obligation to try to be”), this is one reason why.

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 Anti-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.