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.

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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)