3rd Amendment - Privacy

The Third Amendment and the War on Terror
posted by Gerard Magliocca

I’ve long wondered — mostly in jest — whether the Third Amendment says anything meaningful for modern constitutional analysis. Griswold v. Connecticut cited the Amendment as support for the “right to privacy,” but that’s the only time it’s really been used. But here’s an thought experiment (partly fun, partly serious).

Here’s the text of the amendment:

“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.”

Most people overlook the fact that this means Congress has the power to quarter soldiers in your house during a war (it just needs to pass a law to do so). If the Third Amendment is construed as expressing a privacy principle, then this suggests that Congress has greater latitude to invade our privacy during a war. Of course, this begs the question of what “war” means. Does that mean there must be a declaration of war? Or is it just “not peace,” given that peace is stated as a condition in the preceding clause? If Congress decides that we need to put soldiers in private homes to fight the war on terrorism, would that be constitutional?

Moreover, one could say that the Third Amendment offers some useful guidance about issues such as domestic surveillance without a warrant. In one sense, it suggests a textual basis for thinking that our reasonable expectation of privacy is diminished in wartime (at least with respect to federal action). On the other hand, it also suggests that Congress must concur in any invasion of our privacy — the President cannot unilaterally quarter soldiers in your house under the Commander-in-Chief Clause. (References to “law” in the Constitution, I think, always refer to statutes.)

You may think that this is just a professorial ego trip, but John Bingham (the primary drafter of the Fourteenth Amendment) actually made a Third Amendment analogy to defend the legality of the use of military commissions to try Lincoln’s assassins. (I just read this the other day.) Basically, he said that the Third Amendment supported the proposition that the federal government could take actions in war that it could not take in normal times and pointed to the suspension of habeas corpus as evidence that Congress had authorized the use of military commissions instead of civilian courts for trials of those connecProxy-Connection: keep-alive
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d with the rebellion.

UPDATE: I see that there is a recent note by Josh Dugan, “When is a Search not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping,” 97 Geo. L. Rev. 555 (2009) that analyzes this issue in a similar way. I’m printing it out now.