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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, August 05, 2013

Third Amendment and the Limits of Narrow Interpretation

And Also: An Onion article in honor of the (summer) season finale of The Fosters, the marriage episode. A problem with the court scene. And, don't really like the cliffhanger -- poor Jude will be crushed! I can accept it, but it still is pretty stupid on Callie's part to run away like that. Still, she is sixteen.

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now, in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says,

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.
Justice Jackson in a separate opinion in Youngstown Sheet & Tube Co. v. Sawyer is one of the few citations of the Third Amendment found in the Supreme Court opinions. Griswold v. Connecticut provides it merely as part of a string cite of various protections of privacy found in the Bill or Rights. The dissents in Poe v. Ullman cite it along with the Fourth Amendment as part of the protection of "the privacy of the home," so it is not seen only a "guarantee of the preference for the civilian over the military," but also a privacy protection.

The only apparent ruling that truly relied on it in the federal appeals court is Engblom v. Carey, a ruling only about thirty years old, and the claim was so novel that qualified immunity applied. The opinion and the amendment came up when a more recent case that might have Third Amendment implications was addressed here. The post suggests that it should not be incorporated, that its reference to "soldiers" in fact only applies to the federal government. That is not the fundamental freedom that should be incorporated into the Fourteenth Amendment.

The matter was addressed in comments by me in particular, but this is a case where the limits of originalism pop up. The professor in question has focused on original understanding before, writing over fifty page papers that others dispute to determine what "seems" to be the meaning of such and such a thing. Come on.  [See also, this on the reach of federal equal protection, something a few smart alecks sometimes lash against, since contra to long-held precedent, doctrinal or textual niceties allegedly make federal substantive equal protection review moronic.]

I am not, you know, a scholar about these things, but after a couple decades, yeah, do sort of know some basics. At least, enough to know there are complexities and it is often a choice where to take things, especially pursuant to current understanding. The piece, e.g., argues that "troops" and "soldiers" implies a federal reach, since states don't have "troops." But, put aside that Art. 1, sec. 10 is not an absolute bar.  Why shouldn't "soldiers" here be interpreted broadly?  The Engblom opinion in fact doesn't do much heavy-lifting at all.  But, how about U.S. v. Miller?
The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
The Third Amendment works applied to modern day police (which act more like soldiers did in that era) and state guard type troops. Why would even civilians serving a militia role have the ability to quarter in someone's home? The civilians are acting like "soldiers" on that occasion.  "Troops" is not the word used. If a case about the militia and Second Amendment can use the word "soldier," we can here too. What is the point of being so literal and specific?  Being forced to keep state agents in one's home probably can be seen in most cases at least as a sort of "seizure" of the home or a temporary "taking" or a violation of the privacy of the home protected by the substantive due process.

Or, we can honor the spirit of the Third Amendment.

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