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Tuesday, August 19, 2008

Does the Third Amendment Prohibit More Than Just Quartering?

There's an interesting -- if somewhat self-indulgent -- student note recently posted to SSRN that argues that everyone's other favorite forgotten constitutional provision (the Third Amendment) might actually do more than simply prohibit the quartering of troops in private homes during peacetime (and require congressional authorization for such conduct during wartime).  According to the note's author, Joshua Dugan, the way quartering was understood to revolutionary-era America was as more than just the physical act of housing troops; it included the general enforcement of the laws by the military, especially in any area of private life. Dugan's real target is the NSA wiretapping program, and his punchline is why the Third Amendment (and not the Fourth) provides the better constitutional argument against the surveillance. But my interest is on his analysis of the "original understanding."

In particular, there's a lot in the note that I agree with,especially the thematic idea that the Third Amendment is important in reiterating the significance of keeping the military out of everday civilian life. But it strikes me that he takes way too little notice of the Constitution's Militia Clauses, the first of which expressly empowered Congress to provide for the callling forth of the militia "to execute the laws of the union, suppress insurrections, and repel invasions." Put another way, the Constitution squarely contemplated that the militia might be needed to execute the laws of the union, and Congress enacted a series of statutes specifying the means by which the President could so call out the troops. Moreover, as I (and others) have discussed, Congress broadened its delegation of such authority to include the federal regulars in 1807, apparently without serious constitutional objection.

To his credit, Dugan is aware of this inconsistency. But he deals with it primarily in a footnote, noting that

The point I wish to make here is obviously not that the Anti–Federalists negated Congress’s Article I power to call forth the militia to execute the laws, but rather that they sought to clarify and limit the ways in which this power could be lawfully used.

The problem is that there is no hard evidence supporting this claim. True, the Anti-Federalists repeatedly articulated fears of a standing army and concerns that the federal government had too much power to use the military to interfere with the private lives of civilians. But I would've expected that if the Anti-Federalists believed the Third Amendment affirmatively limited the power of the federal government to use the military to execute the laws of the union, that argument might have arisen in the rich legislative debates just one year after the Third Amendment was ratified, leading up to the Calling Forth Act of 1792, and later its successor, the Calling Forth Act of 1795.

My own research, though, uncovered no such arguments, and Dugan himself points to none. There actually _were_ serious concerns over the grant of power contained within the 1792 Calling Forth Act, but none of them were couched in terms of the then-brand-new Third Amendment. And if the Anti-Federalists believed the Third Amendment more generally constrained the power to use the military to execute the laws of the union, wouldn't one of the proponents of such a reading have made that point in arguing against a statute that authorized the President to do precisely that which the Third Amendment purportedly precluded?

It's a very good note -- all the more so for raising this exact question and for prompting me to write this post. And I've written elsewhere that it's actually somewhat scary just how little the Constitution protects against the domestic use of the military. But I'm one who actually believes that there is a lot to learn, at times, from dogs that didn't bark, and this strikes me as one such case.

Posted by Steve Vladeck on August 19, 2008 at 10:57 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Doesn't the Eighth Amendment prohibit quartering?

Posted by: Chris | Aug 20, 2008 9:28:25 AM

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