The Third Amendment and the War on Terror
posted by Gerard Magliocca
I’ve long wondered — mostly in jest — whether the Third Amendment says anything meaningful for modern constitutional analysis. Griswold v. Connecticut cited the Amendment as support for the “right to privacy,” but that’s the only time it’s really been used. But here’s an thought experiment (partly fun, partly serious).
Here’s the text of the amendment:
“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.”
Most people overlook the fact that this means Congress has the power to quarter soldiers in your house during a war (it just needs to pass a law to do so). If the Third Amendment is construed as expressing a privacy principle, then this suggests that Congress has greater latitude to invade our privacy during a war. Of course, this begs the question of what “war” means. Does that mean there must be a declaration of war? Or is it just “not peace,” given that peace is stated as a condition in the preceding clause? If Congress decides that we need to put soldiers in private homes to fight the war on terrorism, would that be constitutional?
Moreover, one could say that the Third Amendment offers some useful guidance about issues such as domestic surveillance without a warrant. In one sense, it suggests a textual basis for thinking that our reasonable expectation of privacy is diminished in wartime (at least with respect to federal action). On the other hand, it also suggests that Congress must concur in any invasion of our privacy — the President cannot unilaterally quarter soldiers in your house under the Commander-in-Chief Clause. (References to “law” in the Constitution, I think, always refer to statutes.)
You may think that this is just a professorial ego trip, but John Bingham (the primary drafter of the Fourteenth Amendment) actually made a Third Amendment analogy to defend the legality of the use of military commissions to try Lincoln’s assassins. (I just read this the other day.) Basically, he said that the Third Amendment supported the proposition that the federal government could take actions in war that it could not take in normal times and pointed to the suspension of habeas corpus as evidence that Congress had authorized the use of military commissions instead of civilian courts for trials of those connected with the rebellion.
UPDATE: I see that there is a recent note by Josh Dugan, “When is a Search not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping,” 97 Geo. L. Rev. 555 (2009) that analyzes this issue in a similar way. I’m printing it out now.
August 30, 2009 at 5:25 pm
Posted in: Constitutional Law
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Responses (5)
Steven M. Bellovin - August 30, 2009 at 7:19 pm
During the so-called “Crypto Wars” of the 1990s, when export of cryptographic software was restricted by the government, there was a proposal by the administration for a so-called “key escrow” system. Omitting the technical details, the point of the scheme was that under certain circumstances the (U.S.) government would be able to read encrypted data, but no one else would be able to. The legal standard under which this could be done was never specified, despite repeated requests; the only statement was that it would only be done “lawfully”. Speculation was that this was to leave room for, say, FISA orders or purely non-U.S. intercepts, rather than probable cause or the stricter standards required for wiretaps under the ECPA.
The assertion was that use of escrowed encryption would never be made mandatory; many people disbelieved this, because there were few (if any) other incentives to adopt it. There was speculation on some cryptographic mailing lists that this might run afoul of the 3rd Amendment — being forced to deploy an aid to wiretapping of your own communications, to aid in surveillance — but I never saw any serious legal analysis, as opposed to amateur theorizing by (generally radical libertarian) cryptographers.
In any event, your point — that Congress can perhaps do this, but not the executive branch — bears on that issue. The cryptography export rules are a creation of two regulatory regimes, the International Trafficking in Arms rules and the Export Administration Rules; while these are (I assume) based on statutes, to my knowledge the definition of covered cryptographic schemes (and there are still such, despite the drastic loosening of the rules around 2000) are regulatory creations, not statutory.
A.J. Sutter - August 30, 2009 at 10:02 pm
I don’t think you need to apologize for this being partly in jest, for fun or as an ego trip at all — you raise a really interesting point.
There’s another textual ambiguity, though: does the clause “but in a manner to be prescribed by law” apply only “in time of war,” or does it apply to peacetime quartering, too? I.e., is “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, … but in a manner to be prescribed by law” a legitimate reading? Or is consent in peacetime an absolute requirement? Douglas, J. seems to have read it as the latter in Griswold (“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”), but this is dicta; and none of the concurring opinions so much as mentions the Third Amendment. Is there other precedent that supports Douglas, J.’s reading, or subsequent case law that’s solidified it?
Gerard Magliocca - August 31, 2009 at 4:59 am
A.J.,
Bingham read the Amendment as an absolute bar on quartering in peacetime but not in wartime. I don’t think there is any case law on this, though a look at the original understanding of the Amendment (and the complaints about the practice in the Declaration of Independence) might be helpful.
Well, whenever you do a post about an exotic or dormant constitutional provision, that always should be qualified a little bit. Though if somebody has to be known as “The Third Amendment Guy,” I guess it might as well be me.
AnonymousLawProf - August 31, 2009 at 9:07 am
Potential law review article topic: “The Third Amendment: Implications for the War on Poverty and the War on Drugs.”
Weekly Web Watch 08/24/09 – 08/30/09 « EXECUTIVE WATCH - August 31, 2009 at 11:29 am
[...] Probably a good series to keep up with. A related article is offered by Gerard Magliocca, who wonders what the Third Amendment has to say about war [...]
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