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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.
- 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.
- 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.
- Property. This was the nineteenth-century understanding. Quartering soldiers amounted to an uncompensated taking.
- 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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