Take Three As An Amendment to Reason About

In When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping, Josh Dugan has written the most interesting article I've ever read on the Third Amendment to the US Constitution.

OK, it is in fact the only article I've ever read on the Third Amendment, and that alone made it interesting. But there's more.

Here's the key part of the conclusion:

… the Amendment prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military. The Amendment’s proscription against military enforcement of civilian law is evident in the founding debates and documents and is the best explanation for the Amendment in the larger constitutional scheme. This explanation also frees the Third Amendment from offering a redundant protection already contained in the Fourth Amendment. Far from being irrelevant to contemporary constitutional law, the Third Amendment could have an enormous role to play in today’s constitutional schema. As the military establishment grows and its role confronting terrorism expands within the United States, the Third Amendment provides the proper backdrop against which to analyze those military actions which intrude on an individual’s life and constitute traditional law enforcement functions, such as wiretapping. This test would categorically bar the military from enforcing the law against civilians during peacetime but would allow the military to do so without any further conditions, so long as the activities were approved by Congress, during time of war.

While the structural argument based on comparing the Third Amendment to the Fourth Amendment is on first glance plausible, it's new to me and I have to think about it more before I'm willing to commit myself to accepting it.

I do have to wonder about the history. I don't know enough to form a view as to how accurate it is, and would like to know a lot more about how, if the argument that the Third Amendment's ban on “quartering” was seen as addressing something general about military-civilian enforcement relationships rather than something fairly specific about military intrusion into the home, this reading got so quickly forgotten. Certainly the article's account of Story's position didn't seem to me to support the author's account nearly as much as he seemed to think it did…

But despite these doubts, it's a fun read for constitutional law mavens.

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