Chinatown Ice Cream Tip #5

If you decide to show off in front of your co-workers and order the durian-flavored ice cream, know that any burps you have for the rest of the day are going to smell a little bit like carrion.

That said, Chinatown Ice Cream Factory does a great job with durian, a fruit with an odor compared variously to "civet, sewage, stale vomit, skunk spray, and used surgical swabs."

The Third Amendment: The Little Amendment That Couldn't

(Crossposted from the American Constitution Society :: Columbia Law School)

Stop what you're doing.

If you're a law student or a lawyer, the odds are pretty good that you're within easy walking distance of a copy of the U.S.C.A. Go to this multi-volume juggernaut.

The first umpteen volumes of this leather-bound behemouth are devoted to the U.S. Constitution and its amendments. Grab the volume dedicated to the first four amendments.

As you likely know, the U.S.C.A. is an annotated version of the codified statutes of the United States. Adjacent to a statute, the publisher (West) has attempted to include influential cases that reference that statute. Flip to the Third Amendment.

While flipping, you may have noticed that the First Amendment has about 150 pages of one-paragraph case synopses that illustrate how, over time, courts have interpretted the protections laid out in the First Amendment's 45 words.

If you flipped too far, you may have noticed the Fourth Amendment has about 400 pages of material dedicated to the constitutional protection against various unreasonable searches and seizures.

How many pages are devoted to the Third Amendment?

2

The republic is in its 230^th year, with a constitution that is 217 years old. ...and yet there are 2 pages worth of cases that say anything interesting about the Third Amendment. Let's take a tour:

First, the text:

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.

Cornell's Annotated Constitution claims:

There has been no Supreme Court explication of this Amendment, which was obviously one guarantee of the preference for the civilian over the military. In fact, save for the curious case of Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983), there has been no judicial explication at all.

Au contraire. No fewer than seven cases have mentioned this sacred protective amendment, at least three of which bear mentioning.

First, back in the day of penumbras, a footnote in Katz v. US notes that this amendment protected at least one "aspect of privacy from governmental intrusion."¹

Next, although the common law Ad Coelum rule (the rule's full name translates roughly as "To whomever the soil belongs, he owns also to the sky and to the depths.") was put out of commission 65 years before by Hinman v. Pacific Air Transport and its sister cases, the Custer County Action Association still forwarded an Ad Coelum-related theory in its 2001 case.² The association claimed that peacetime military overflights were a per se unconstitutional quartering of soldiers on their property.³ Needless to say, the 10^th Circuit disagreed rather heartily.

Finally, the last case bearing mention is Engblom v. Carey, which (as the quote above notes) is probably the only lengthy judicial discussion of the Third Amendment.⁴ Although I agree with Engblom's core holding, that National Guardsmen are "soldiers" within the meaning of the Third Amendment, I must sheepishly disagree with one of Engblom's other holdings — that the Third Amendment applies to the states via incorporation in the Fourteenth Amendment.⁵

Notwithstanding Barron v. Baltimore,⁶ it appears to me that the Third Amendment applies directly to state militias (given the National Guard's formation via the Militia Act of 1903, I'm treating them as state militias for the purpose of this argument.)

Article I, Section 10, Clause 3 reads:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

Since a state could not maintain soldiers other than with the approval of Congress, since the Third Amendment says "No Soldier," not "no federal soldier," and since the Third Amendment provides a logical backstop to the militia power defined in the Second Amendment, it appears to me that the Third Amendment would have logically applied to the states before the Fourteenth Amendment made it so.

---

¹ Katz v. US, 389 U.S. 347, 351 n.5 (1967).

² Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936); cert. denied, 300 U.S. 654 (1937); see US v. Causby, 328 U.S. 256, 261 (1946) (acknowledging that while a Fifth Amendment remedy might exist if flights over private property directly and immediately interfere with the enjoyment and use of the land, Congress has declared "[t]he air is a public highway" and "[c]ommon sense revolts at the idea" that aircraft operators would be subject to trespass suits based on common law notions of property ownership extending to the periphery of the universe). Black's Law Dictionary (6th ed 1990).

³ Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1042-43 (10th Cir. 2001).

⁴ Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), on remand 572 F. Supp. 44 (S.D.N.Y. 1983).

⁵ Id. at 961-62.

⁶ Barron v. Baltimore, 32 U.S. 243 (1833) (determining that the Bill of Rights did not apply to state governments)

(Thanks to Colin for the U.S.C.A. tip)

ABA to Executive Branch: "The Constitution is not what the President says it is."

(Crossposted from the American Constitution Society :: Columbia Law School)

An ABA task force is urging Congress to pass legislation permitting court review of presidential signing statements.

Although the Justice Department claims that President Bush has only issued 110 signing statements (to Clinton's 80 such statements), the ABA task force cites research that Bush has challenged the constitutionality of 800 provisions of law passed by Congress.

If You Take Her to Be Your Lawfully Wedded Wife, Say "Hoo-Rah"

This weekend, Steph & I attended a lovely wedding ceremony on a military base. You see, the bride spent her childhood as a military brat, traveling from base to base. Ultimately, it was Fort Knox that became her home.

It was a lovely Catholic ceremony, followed by a grand and riotous reception. Both halves of the day were long enough for Steph and me to discover a couple of the lighter elements oddly present when your wedding is on a military facility.

The Ceremony: In the Book of Worship for United States Forces, hymn #197 is Bless Thou the Astronauts Who Face, a classic that I'm sure we all know by heart.




The Reception: When you have your reception at the officers' club, you know there will be some military-themed art hanging over the mantle.

As Fort Knox is home of U.S. Army Armor Center and the U.S. Army Armor School, it's not too suprising that armor and cavalry feature heavily in a number of these works.

In Cold War-era painting below, I think the mushroom cloud really ties the whole thing together.

Somehow We Muster the Courage to Commute

Having gone through the Lincoln Tunnel at 5:30 am this morning — the very day that the abortive (and physically impossible) plan to somehow flood lower Manhattan (which is above sea level) via damaging/destroying the various tunnels leading to Manhattan (which are below sea level) was publicly disclosed — I've determined that I am now worthy of joining the 101st Fighting Keyboarders.

I'm proud to enlist in this group, the courage of which is typified by Hugh Hewitt, who day-in and day-out somehow musters the intestinal fortitude to broadcast from the Empire State Building.

By the way, I'm amused by the terrorists' physics model, where blowing up a tunnel somehow means that water will flow uphill. Whatever we do, we must not let Al Qaeda get ahold of these scientists, who have (on a small scale) caused water to flow uphill in an organized manner.

Found On The Internets: What Do You Do with a 500 lb. Rubber Band Ball?

Naturally, you attack your old Toyota Camry with it.

An Independence Day Musical Tidbit

The song that should be our national hymn, America the Beautiful, is sang in common meter double (8-6-8-6-8-6-8-6). Thus, its lyrics are perfectly interchangeable with Auld Lang Syne, another famous tune in common meter double.

It's the Website Lurking in the Shadows, Stalking Every 2L

Law may not be the most lucrative career, or the most glamorous, but it's the most arduous, and that's something to be proud of.

Patrick L. Forrester, Partner, Anonymous Law Firm LLP