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Saturday, January 27, 2024

Four Views of the Third Amendment

What legal principle is embodied by the Third Amendment? Not a pressing question, but an interesting one. An interesting one because in spite of the near-total absence of case law on the provision, you can identify at least four ideas that have found a home (pun intended) in the Third Amendment's regulation of quartering soldiers in private homes.

  1. Privacy. This is the modern reading that draws from cases like Katz and Griswold. The harm from quartering soldiers is its invasion of the homeowner's privacy.
  2. Civil limits on military authority. This is how Justice Jackson cites the Third Amendment in the Youngstown concurrence. The idea here is that military officials cannot commandeer a private home (even in wartime) without legal authorization from Congress.
  3. Property. This was the nineteenth-century understanding. Quartering soldiers amounted to an uncompensated taking.
  4. Structural limit on standing armies. This was the 17th and 18th century understanding. In a world without military bases, a standing army was difficult to maintain at home without quartering soldiers. And domestic standing armies were seen as a threat.

One thing this list illustrates is that broad constitutional provisions can evolve even in the absence of applications. They just move with the zeitgeist. I'm not sure if there is a bigger theoretical point there, but maybe.

Posted by Gerard Magliocca on January 27, 2024 at 01:49 PM | Permalink


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