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On this 225th Anniversary of Virginia's ratification, we celebrate all 12 articles, and pray for the day when the Third Amendment's fallen comrade, Article the First, is finally ratified (or at least deemed ratified).
In the meantime, sleep well knowing troops will not be unlawful quartered in your homes tonight.
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According to YouGov, almost half of all Americans could correctly identify that the Third Amendment precludes quartering of soldiers in peacetime.
Over at The New American (the magazine of the John Birch Society), Joe Wolverton raises the issue (actually more of a highlight, as he is not alone) that the modern surveillance state's intrusion into the home could constitute a third amendment violation. It is an idea that, of course, has yet to be tested. One of the points highlighted is that the national security administration is always headed by a commissioned military officer pursuant to Department of Defense Directive 5100.20. Notably, the director himself is not invading the home, at most it is his subordinates at his command. To that end, it is a stretch to say that he is being quartered in violation of the third amendment. But if anybody brings the case, we will be watching.
On December 15, 1791, the Commonwealth of Virginia ratified all 12 articles of the Bill of Rights, submitted to it for consideration on September 28, 1789. This includes our favorite, Article V.
"What? Article V?" (You might might say.) Yes. We at the Third Amendment Lawyers Association have it as our mission to support the Article the Fifth. It is little taught that the ordinal numbering of the articles of the Bill of Rights are different from the ordinal numbering of the Amendments to the U.S. Constitution. The Bill of Rights are not just the first ten amendments. On September 28, 1789, Congress submitted twelve articles to the States. What became the 1st Amendment was Article 3, the 2nd Amendment was Article 4, and the 3rd Amendment was Article 5 (and so on). Article 1 has never reached ratification by 3/4 of the states and Article the Second (which prohibits Congress from giving itself a raise before standing for reelection) was not fully ratified until May 7, 1992. So, should December 15 be Bill of Rights day? After all, only 5/6 of them were ratified as of that date in 1791. Perhaps it should be September 28, since that is the anniversary of all 12 being proposed. Or maybe May 7, when the last was ratified? Or should we wait until Article I is fully ratified by another 27 states (which would increase the size of the House of Representatives to approximately 6,400 members)? We are sticking with December 15. First, the right to be free from quartering was ratified as of that date. And Articles 1 & 2 are less rights oriented than structural adjustments. They may be good policy (we take no position), but they do not deal with rights per se. So, with that we say to you: Happy Bill of Rights Day! Back in March, Radley Balko wrote this of the Third Amendment:
You might call it the runt piglet of the Bill of Rights amendments—short, overlooked, sometimes the butt of jokes However, the rest of his article demonstrated the value of the right to be free from quartering enshrined therein. If it is a runt piglet, let it squeal away. It has done its job for over 200 years, keeping soldiers out of our homes.
In addition to the works of Prof. Tom. W. Bell cited earlier,
For an explanation of the Brown M&M Test from Van Halen, watch below: In An Unavoidably Brief Historiography of the Third Amendment, Prof. Scott D. Gerber, for the Symposium on Third Amendment Law, provides a nice overview of much of the Third Amendment scholarship.
Unfortunately, it appears Prof. Gerber missed at least one: Samantha A. Lovin, Everyone Forgets About the Third Amendment: Exploring the Implications on Third Amendment Case Law of Extending its Prohibitions to Include Actions by State Police Officers, 23 Wm. & Mary Bill Rts. J. 529 (2014). Ms. Lovin provides an excellent overview of the meaning of soldiers and quartering, as understood by the Framers, and provides different approaches to how militarized police might be found liable. She gives particular focus to qualified immunity, as that is the technicality under which the Engblom defendants ultimately prevailed. In addition to the above article, Prof. Gerber omitted mention of the following:
Prof. Gerber does cite other literature, also available online:
Happy reading! There is a certain pleasure at the Third Amendment Lawyers Association having been founded by a Connecticut attorney. As fans of the Third Amendment know, the only Supreme Court case to address the Third Amendment was Griswold v. Connecticut, 381 U.S. 479 (1965).
In that case, Estelle Griswold, then-Executive Director of the Planned Parenthood in New Haven, challenged her conviction as an accessory to having violated Conn.Gen.Stat., sec. 52-33, which provided: Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. At page 484, Justice William O. Douglas, writing for the Supreme Court, specifically cited the Third Amendment as part of the "penumbra" of rights affording a constitutional right to privacy: 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. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). 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." There are some who come to Connecticut and visit the Kelo house in New London (the house itself was never knocked down; it was moved). But hey, on the way to New London, stop in New Haven at 79 Trumbull Street, the location of that Planned Parenthood. While reading Scott Gerber's article on the Third Amendment, I came across three children's books:
Prof. Gerber recommends Mr. Holmes's book principally. But, all three are available for sale on Amazon in time for the holidays. (Please note, ÞALA has received no remuneration from Amazon or the authors, but merely provides these links as a convenience. Caveat emptor.) The Framers of the Constitution had fresh memories of the Quartering Act of 1774, which amended the Quartering Act of 1765.
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AuthorJay Wolman is Counsel at Randazza Legal Group and the Founder of the Third Amendment Lawyers Association Archives
December 2016
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