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Saturday, August 03, 2013

Is the Third Amendment “Incorporatable?”

After the Supreme Court’s recent decision to incorporate the Second Amendment into the Fourteenth Amendment’s Due Process Clause in McDonald v. Chicago, there remain only a few provisions in the Bill of Rights left outside of the Court’s interpretation of the Fourteenth Amendment.  This means there will be precious few opportunities in the future for the Court to hear cases that directly raise the issue of how to identify the rights of national citizenship, and whether the Privileges or Immunities Clause should be the vehicle for incorporating the Bill of Rights rather than the widely mocked doctrine of “substantive” due process.

As readers are probably aware, however, a case arose this last summer that actually could place this issue relatively quickly before the Court.  It involves, of all things, the Third Amendment’s guarantee 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.”  The case arose in Nevada where police forced their way into a private residence in order to set up a stake-out of the house next door.

Other blog sites have discussed the case, focusing mainly on whether the term “soldiers” should be interpreted to include “police.”  Most commenters assume that the Clause is a shoo-in for incorporation, the only issue being the interpreted scope of the incorporated right.  But is it really the case that the Third Amendment easily fits within the Court’s incorporation doctrine (to the extent that the Court has an incorporation doctrine)? [more after the break]

For example, the Supreme Court has never incorporated the Tenth Amendment against the states because this appears to be a clause that, as a matter of textual definition, cannot be incorporated against the States; it protects the States.  Opponents of Second Amendment incorporation raised similar arguments that the prefatory clause in the Second Amendment, by definition, limited that amendment to one protecting state militia’s, not an individual right to bear arms.  The Court in McDonald rejected that claim, at least in part due to a history that suggests, by the time of the Fourteenth Amendment, there was widespread belief that the Second Amendment protected an individual right to armed self-defense.

When it comes to the Third Amendment, the term “soldier” arguably locks in a federal government-only reading; states are forbidden from keeping troops or engaging in war while only the federal government may raise an army.  The text, in other words, distinguishes “troops” from “militia,” and the former seems more closely linked to the term “soldier” than the latter.  Nor is there any evidence of which I am aware that indicates Third Amendment concerns played any role in the original framing and discussion of the proposed Fourteenth Amendment.  And, in general, is there any reason to think freedom from the forced quartering of soldiers is “fundamental to the American scheme of justice” in a manner that has any application against the states, as opposed to involving a very specific issue at the time of the Founding which has little relevance today (as many argued in terms of the Second Amendment)?

How are we to think about such things?  And what test should we apply that explains which provisions in the Bill of Rights are “in” and which “out”?  The “spirit” of the Amendment (and if so, which spirit)?  The 1791, 1868 or 2013 spirit?  And if we identify and require states to enforce some kind of “underlying principle,” shouldn’t we also incorporate the Tenth Amendment in a manner that prevents state authorities from violating the underlying principle of that amendment?   Again, this is not a question of whether the quartering of police violates an incorporated Third Amendment, but how to go about determining whether to incorporate the Third Amendment in the first place. 

I personally would love to see the Supreme Court get another opportunity to embrace the Privileges or Immunities Clause. No doubt, doing so would raise a new set of difficult questions (including some of the above).  But at least it would open the door to a plausible and historically based reading of Section One that does not leave the protections of individual rights to judicial selection of “more” and “less” fundamental rights.

Posted by Kurt Lash on August 3, 2013 at 12:42 PM | Permalink


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Erratum: The case was decided by the 2nd Circuit.

Posted by: Joe | Aug 5, 2013 8:55:35 PM

Kurt Lash: Art. 1, sec. 10 does allow states in certain instances to have 'troops,' and words like 'seem' are of limited value for me to determine how we should interpret "soldiers" in the 21st Century.

I don't think we are bound by the 3CA. My concern is that it is a useful thing, along with Griswold & perhaps a few separate opinions (e.g., in Youngstown) to provide current meaning. So, I wondered why they weren't cited.

Posted by: Joe | Aug 5, 2013 5:00:21 PM

Brad: "If a law favoring one religion over another (or none at all) necessarily violates the equal protection clause, doesn't it make far more sense to treat it that way rather than through the rigmarole of the non-establishment of a state religion being a 'liberty' that can't be deprived without due process of law and holding that no process is sufficient?"

The 1A cited religion in particular given its importance along with other things and here too instead of some general equal protection violation, which can cover various classifications with various levels of scrutiny (race is not treated the same as disability etc.), the Establishment Clause provides clarity that states favoring some religions over others is particularly a matter of concern. Anyway, it is not merely an equal protection violation. It is just cited as an example of how it is a matter of individual liberty.

Brennan wrote a long concurrence; quoting a paragraph and dismissing it as not "all that persuasive" is not all that persuasive.

Posted by: Joe | Aug 5, 2013 4:56:30 PM


If a law favoring one religion over another (or none at all) necessarily violates the equal protection clause, doesn't it make far more sense to treat it that way rather than through the rigmarole of the non-establishment of a state religion being a 'liberty' that can't be deprived without due process of law and holding that no process is sufficient?

Reverse incorporation is equally ridiculous, but at least you can see how it was necessary to avoid the spectacle of segregated DC schools.

As for Brennen, kudos to him for trying, but:

It has also been suggested that the "liberty" guaranteed by the Fourteenth Amendment logically cannot absorb the Establishment Clause because that Clause is not one of the provisions of the Bill of Rights which in terms protects a "freedom" of the individual. See Corwin, A Constitution of Powers in a Secular State (1951), 113-116. The fallacy in this contention, I think, is that it underestimates the role of the Establishment Clause as a co-guarantor, with the Free Exercise Clause, of religious liberty. The Framers did not entrust the liberty of religious beliefs to either clause alone. The Free Exercise Clause "was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith." McGowan v. Maryland, supra, at 366 U. S. 464 (opinion of Fankfurter, J.).

just isn't all that persuasive. It's all airy intent-of-the-founders and no linguistic or structural analysis. Though I guess that's about what you'd expect from an opinion the opens with a cite to: "We must never forget, that it is a constitution we are expounding." I had a colleague who called that the hold onto your wallet phrase.

Posted by: brad | Aug 5, 2013 3:03:25 PM

Joe: It seems to me that Article I, sec. 10 supports the non-incorporation theory. We know from provisions like Art. I, sect. 8, that states may keep and train militias, even in times of peace. Art. I, section 10 tells us that states may not keep "troops" in times of peace without congressional approval, so there is a textual distinction between members of the "militia" and "troops." The former are the responsibility of the states, the latter of the federal government. It would be the militia that would "engage in War [when] actually invaded, or in such imminent danger as would not admit of delay." Not "troops." The third amendment's reference to "soldiers" seems textually related to "troops," or else we have a situation where states are allowed to keep "soldiers" in times of peace without congressional consent, so long as they avoid calling them "troops." I suspect, by the way, that deeper investigation would link the term "soldier" to a professional army (the root meaning of soldier I think is "one having pay) as opposed to the non-professional members of the militia.

As for the circuit court opinion in Engblom, the court declares "The Third Amendment was designed to assure a fundamental right to privacy" and cites to dicta in Griswold. The Supreme Court, obviously, is not bound by this and would surely treat the issue as one of first impression. Thus, my question about theory.

Jason: I think you and I would agree that Story's remarks have limited weight in determining the original meaning of the Constitution. That said, I think he must be referring to a state's use of its militia without congressional consent "to engage in war" in cases of imminent danger, and is not saying that states "may keep troops (separate from a militia) in times of peace without congressional consent in cases of imminent danger." The latter would seem to be in significant tension with the text.

All: I am not opposed to treating the Third Amendment as a protected privilege or immunity of citizens of the United States. I do think that the issue raises some tricky issues of constitutional theory and interpretation.

Posted by: KURT LASH | Aug 5, 2013 1:23:34 PM

"But what sort of liberty is a restriction on establishing a state church protecting?"

It benefits certain religions over others, which is in effect an equal protection violation. Among other things. School District of Abington Township, Pennsylvania v. Schempp, particularly Brennan's concurrence, does a suitable job to spell out the 'liberty' concerns here.


Bond v. U.S. suggests that the 10A can have individual liberty application. As to state incorporation, to the degree states and/or "the people" have powers retained, states probably can in some fashion violate it -- e.g., wrongly help the feds enforce a power it doesn't have. States cannot delegate away power the feds are not granted.

Art 1, sec. 10 allows states to have troops if Congress consents and can engage in war if invaded. I'm also not sure why the OP doesn't reference Engblom v. Carey (or even the citation in Griswold that suggests the 3A still has some force), which suggests an overly literal application of the word “soldier” is misguided. Why would a possible scenario of state guardsman or police (which today act more like 'soldiers' of the past) quartered in a home not be a fundamental liberty concern? The amendment does have a specific concern tied to historical events, but the concern still can have application today.

Posted by: Joe | Aug 5, 2013 12:15:15 PM

In that case 8 justices thought the case turned on whether or not the sixth amendment required unanimous juries (4 said yes, 4 said no), only Powell writing for himself saw it as turning on the issue of selective incorporation.

Is it clear which is the narrower holding under Marks?

Posted by: Brad | Aug 5, 2013 12:12:26 AM

Joey, I think the answer may be 1972, when the Court did not incorporate the right to a unanimous jury verdict in the Apodaca case. See, e,g., http://www.law.northwestern.edu/journals/jclc/backissues/v101/n4/1014_1403.Riordan.pdf

Posted by: Orin Kerr | Aug 4, 2013 11:38:48 PM

I think the answer is Minneapolis & St. Louis R. Co. v. Bombolis - 241 U.S. 211 (1916), which David Levine alludes to. But that was decided before the incorporation era began, and so necessarily doesn't apply the selective incorporation doctrine that is ostensibly the status quo law today.

You could argue that the correct answer is Palko v. Connecticut 302 U.S. 319 (1937) refused to incorporate the double jeopardy clause but it was overruled by Benton v. Maryland, 395 U.S. 784 (1969)

Posted by: brad | Aug 4, 2013 12:28:16 PM

Interesting post.

Here's a question: when's the last time the Court squarely looked at a question of incorporation and decided "no" (i.e. don't incorporate this against the states)?

Posted by: Joey Fishkin | Aug 4, 2013 3:32:28 AM

Thanks for the interesting post, Kurt. I said something very much along these same lines to the Las Vegas Sun when asked for comment--but I don't think they found the nuances of incorporation doctrine sexy enough for the column--so I didn't make the paper :)

Posted by: Ian Bartrum | Aug 3, 2013 11:04:56 PM

Are you sure from the text that the prohibitions on states having troops and engaging in war are absolute? Joseph Story says this about the provision of Article 1 section 10 you invoke:

"The other prohibitions in the clause respect the power of making war, which is appropriately confided to the national government. The setting on foot of an army, or navy, by a state in times of peace, might be a cause of jealousy between neighbouring states, and provoke the hostilities of foreign bordering nations. In other cases, as the protection of the whole Union is confided to the national arm, and the national power, it is not fit, that any state should possess military means to overawe the Union, or to endanger the general safety. Still, a state may be so situated, that it may become indispensable to possess military forces, to resist an expected invasion, or insurrection. The danger may be too imminent for delay; and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of congress. After war is once begun, there is no doubt, that a state may, and indeed it ought to possess the power, to raise forces for its own defence; and its co-operation with the national forces may often be of great importance, to secure success and vigour in the operation of war. The prohibition is, therefore, wisely guarded by exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union."

3 Story, Commentaries on the Constitution § 1398.

Posted by: Jason Mazzone | Aug 3, 2013 9:27:47 PM

What about the more significant case of the Seventh Amendment?

Posted by: David Levine | Aug 3, 2013 8:40:41 PM

I always thought that the Establishment Clause was a difficult sell for Due Process incorporation. The theory behind it is that there incorporated provisions are a 'liberty' that can't be denied without 'due process' and are so fundemental that no process is sufficient. But what sort of liberty is a restriction on establishing a state church protecting? That provision seems more akin to something like the "make anything other than gold or silver legal tender" provision. Is there are liberty to live in a state that doesn't issue paper currency?

But the big incorporation wave wasn't exactly the Court's finest analytical hour, they tended to just drop a reference to some prior incorporation case and move forward.

Incorporation: selective in theory, total in fact.

Posted by: Brad | Aug 3, 2013 4:47:32 PM

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