Armenian genocide and the Third Amendment
posted by Kaimipono D. Wenger
As Tom Bell has noted, the Third Amendment gets no respect. It is as likely to be mentioned by comedians as by courts, and holds a position of honor among the odd clauses of the Constitution, where it is so infrequently used that even non-uses draw attention. But this neglected amendment has one potential application today, where it could play an important role in a somewhat high-profile case.
I’m talking, of course, about the Armenian genocide litigation.
Here’s a snippet from a recent story in the Armenian Weekly (with emphasis added):
In July, Armenian American attorneys sued the Republic of Turkey and its two major banks, seeking compensation for confiscated properties and loss of income. A new federal lawsuit was filed last week by attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz, along with international law expert Michael Bazyler, against the Republic of Turkey, the Central Bank, and the Ziraat Bank for “unlawful expropriation and unjust enrichment.” The plaintiffs are Los Angeles-area residents Rita Mahdessian and Anais Haroutunian, and Alex Bakalian of Washington, D.C. The three Armenian Americans, who have deeds proving ownership of properties stolen from their families during the genocide, are seeking compensation for 122 acres of land in the Adana region. The strategic Incirlik U.S. Air Base is partly located on their property.
That’s right. Armenian-Americans are seeking to recover property seized by Turkey during the Armenian genocide. And significant portions of that land are currently used to quarter American troops.
The Third Amendment mandates that, “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.” Does the Incirlik Air Base violate this provision? (Notably, Turkey has ignored the lawsuit, resulting in a default judgment in favor of the Armenian-American claimants.)
Based on my extensive reading in Third Amendment law [fn1], I think the case may indeed raise Third Amendment claims — but mostly, it brings up a complicated set of follow-up questions.
First, does the Third Amendment apply extraterritorially? This is outside of my expertise. I wonder if Boumediene would apply here. Is the U.S. air base enough control to extend Bill of Rights protections?
Second, what is the effect of the owners’ absence when the air base was built? I don’t think that homeowners need to be living in a home at the time of quartering for the amendment to apply. (On a related note, the Engblom court notes that the Third Amendment does not require fee simple ownership.) Presumably, the Third Amendment would give rights to refugees who flee their homes, and return to find them occupied by troops. However, other complicating factors here — particularly the passage of time — may bar claims.
And third, if there is a Third Amendment violation, what is the remedy? The amendment text itself doesn’t specify. Bell argues that the implied remedy for Third Amendment violations is similar to the Takings clause, and might include “recompense for any lost value that they could have exchanged on the market were it not for the government having seized their property, including the rental value of their homes and the value of any property stolen or destroyed.” However, Bell also notes that it “does not appear that the victims of quartering could recover for what may be their most grievous injuries: being forced onto the street, seeing strangers occupy and ransack their houses, and homesickness.”
At the very least, a Third Amendment claim would give Armenian-Americans a claim not just against an unresponsive defendant (Turkey) but also against the United States. This in turn could create additional U.S. pressure on Turkey to provide reparations to Armenians, or even to return the land in question.
All of which would be a welcome development for Armenian-Americans — and a big win for the Third Amendment.
(Hat tip to my colleague Chris Guzelian for discussion which prompted this post.)
[fn1] “Extensive reading in Third Amendment law”: I read Tom Bell’s article and the Engblom opinion.