Our Forgotten Amendment: The Third

“Ultimately property rights and personal rights are the same thing.”  —Calvin Coolidge

An Overlooked Civil Right

The text of the Third Amendment to the US Constitution reads as follows: “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.”

These words are important, but they are much overlooked and seldom thought about.  It would seem the government has violated this fundamental civil right on several occasions.  A review of them, in this time of extreme governmental overreach, is perhaps wise at this time.

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CASE #1: During the Obama Administration

On July 10, 2011, the Henderson, Nevada, police paid the Mitchell family a call.  They wanted to use the family home to investigate a neighbor.  The police smashed in the door and forced Anthony Mitchell to the floor at gunpoint, shooting him and his dog with pepper-spray pellets.  He was arrested for “obstructing a police officer.”

That same day, the police also quartered themselves in the home of Anthony Mitchell’s parents in the same neighborhood, charging his father with obstructing an officer, as well.

Although the police eventually dropped all charges against both families, all family members have signed on to the same 18-page legal complaint against the city.

The city argues that police are not subject to the Third Amendment.  But Frank Cofer, the family’s lawyer, says, “I’m confident the Mitchells have a good case,” making much of the fact that the officers made use of military-style tactics during the incident.  “And, after entering their houses, they drank water, ate food, enjoyed the air conditioning.  That struck me as quartering.”

CASE #2: During the Carter Administration

thirdamendmentThere was an important Third Amendment Case filed in 1979, which came to be known as Engblom v. Carey.  It is the only legally significant court decision based on a direct civil rights challenge under the Third Amendment.

The case was initially brought to court by New York State correction officers in 1979, because, while they were on strike, many of their duties were performed by National Guardsmen.  The striking employees were evicted from employee housing, so the National Guard could use it.  Two of the evicted officers subsequently filed suit.

On May 3, 1982, the court found that National Guardsmen do legally qualify as soldiers under the Third Amendment.  This would mean that the Amendment applies to state as well as federal authorities, and that Third Amendment protection extends to renters as well as homeowners.

The case was then remanded to district court, where it was decided in that the National Guardsmen were immune to suit as agents of the state, since they did not knowingly act in an illegal manner.  Nevertheless, the higher court finding that National Guardsmen are the same as soldiers for the purposes of the Third Amendment is a major win for the American people.

CASE #3: During the Roosevelt Administration

During World War Two, as a result of a Japanese attack against the Aleutian Islands, the government forced residents to leave their homes to allow the quartering of troops.

The problem posed by this case is the meaning of “property” in the Constitution, where property is mentioned four times.  The unjust treatment of Aleutian natives shows the risk of giving constitutional property too narrow a definition.

constitutionThe Supreme Court’s reticence in taking up this issue may lie in the fact that there are inconsistencies that afflict the law of constitutional property that would require the Court to come up with a consistent meaning that could easily be applied throughout the Constitution.

The Third Amendment does allow forcible quartering of troops in private homes in wartime “in a manner to be prescribed by law.”  But, since Congress has never enacted any such law, the fact that the government did this to the Aleuts becomes legally problematic.

It must be pointed out that the peripheral effects that arose as a result of this quartering were horrible for the Aleuts to endure.  Beyond the quartering of the soldiers, their injuries consist of the following: 1) they were forcibly removed from their homes; 2) they were interred in camps; 3) many died in the unhealthy conditions, including most of the elders vital to sustaining their culture; 4) in order to deny the Japanese a useful base, a burnt earth policy was followed, completely destroying several villages; 5) other empty villages were comprehensively ransacked by soldiers; 6) Aleuts were not allowed to go home for a year, at which time they found all their possessions to be missing; 7) stolen family mementos, heirlooms, and religious icons were never recovered.  Thus, the quartering was not even the worst thing that happened, although it was the gateway incident that allowed all the other atrocities to occur.

It is true that the Aleuts were finally given partial compensation for their losses in the 1980s, but officials refused to admit that Aleuts had suffered a violation of their civil rights.  The amount of compensation received by each survivor was only $12,000.  The failure of the government to consider this a Constitutional violation indicates the lack of concern that government is all too prone to exhibit.

Still Neglected

It bears mentioning that, to this date, the Supreme Court has never directly addressed the meaning of the Third Amendment.  Perhaps the closest thing we can find to it is a mention of the amendment in Griswold v. Connecticut (1965), when the Court cited the Third Amendment as one part of the Bill of Rights that proves that there exist “zones of privacy” and a constitutional right to privacy.

Perhaps it is time for the Supreme Court to take up the Third Amendment and make it clear that a soldier by any other name is still an unwelcome government intrusion into the private sphere of the American citizen.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com

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