January 3, 2009

In Defense of Freedom: Part IV

The 3rd Amendment:

It would seem to me that the first two amendments to the United States Constitution were prioritized. The 1st amendment was considered of primary importance, because liberty demands freedom of expression and conscience. Without doubt, it was free expression, in the form of the printed word, which led to the American Revolution. The Pen is Mightier than the Sword.” Therefore, the rights guaranteed under the First are considered the most powerful tools of liberty. The 2nd amendment, while very important in that it allows for the defense of the First, pales in its shadow.

In light of the overshadowing importance of the First and Second, the 3rd amendment is somewhat of an enigma.
“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 Third is rather widely mocked, but to the Founders it was an absolute necessity. The root of the language can be found in the Founder’s fear of a standing army in peacetime. James Madison was the major proponent of this amendment.

In 1765 and again in 1774, British Parliament passed the Quartering Acts, authorizing British troops to take shelter in the homes of American colonists. It was the forced quartering of British troops in private homes in the years anteceding the Revolution that helped foment unrest and eventually led to revolution.

Even during the Revolution, British soldiers relied on their authorized ability to quarter at private residences. In 1776, the Declaration of Independence assailed the British for quartering "large bodies of troops among us" and keeping "standing armies without the consent of our legislature." The Founders desired to guarantee no American government would be allowed to infringe on citizen’s rights.

One should not be too hard on a citizen not knowing of the Third. According to the Government Printing Office (GPO), it is likely the least cited Constitutional provision in federal cases, but there is one cite. In an interesting case from 1982, Engblom v. Carey, corrections officers in New York went on strike and were evicted from their state owned housing by New York Governor, John Carey. The National Guard was brought in to substitute for the striking guards and bunked in these quarters. One of the corrections officers sued, citing the 3rd amendment… and lost.

An amusing anecdote regarding the 3rd amendment has Judge Laurence Silberman of the District of Columbia Circuit Court of Appeals having dinner with a group of law students. Silberman is widely understood to be a constitutional law expert, and has issued rulings on constitutional claim dealing with every constitutional amendment… except the Third.

The students engaged Silberman in discussions of a variety of his case opinions. A particularly pinheaded student commented that Silberman must only rule on a case involving the Third and he would have ruled on them all. Silberman is reported to have paused a bit, looking a bit confused, and then stated, “I’m very sorry, but what is the Third Amendment, again?”

If you’re having trouble sleeping, Mule Breath will offer some nighttime reading material guaranteed better than counting sheep:



Kontorovich, Eugene, The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies. Virginia Law Review, Vol. 91, 2005

Dugan, Joshua B., When is a Search Not a Search? When it's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping (July 3, 2008). Georgetown Law Journal


Rogue Medic said...

I will add these to what I should be reading.

The 1st and 2nd were not approved in the order proposed. If you look at the 2 that were proposed ahead of them, they suggest that the order of the amendments has little to do with their importance.

Mule Breath... said...

You correctly observe that the 1st and 2nd amendments were originally the 3rd and 4th. The original 1st was a balance of power issue, dealing with the number of citizens per representative, and the 2nd addressed how the Senators and Representatives would be paid. The Founders were patriots, but they were also ambitious men.

Still, I maintain that the mood of the day gave great respect to the power of the printed word, and that bearing of arms was necessary but secondary. There is a paper providing very specific analysis of this point, and if I possessed instant recall I would provide that citation. But alas, I am not that talented. I will continue to search and hopefully provide a cite soon.