A Real Live Violation of the Third Amendment

The Third Amendment, which forbids the quartering of troops in private homes without the owner’s consent, is often the butt of jokes. Few people take seriously the possibility that it could be violated. However, law professor Tom Bell has a forthcoming article about a neglected – and tragic – historical case where the federal government violated the Amendment with complete impunity. Here’s the abstract:

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate – land, fixtures attached thereto, and related rights – but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.

The Third Amendment does allow forcible quartering of troops in private homes in wartime, but only “in a manner to be prescribed by law.” And as Tom points out, Congress never enacted any law allowing troops to take over the homes of the Aleutian natives. He also shows that the the Aleutian natives’ suffering went beyond quartering as such:

They were forcibly removed from their homes and interred in distant and unhealthy camps, an ordeal in which “[t]hey fell victim to an extraordinarily high death rate, losing many of the elders who sustained their culture.”Worried about Japanese invaders, and pursuing a burnt earth policy, the U.S. military completely destroyed some evacuated villages. Other empty villages, though left standing, “were pillaged and ransacked by American military personnel.” When about a year later they were finally returned to their homes, “All household effects and equipment the Aleuts had left behind were missing.”The occupying forces took more than just the market value of the destroyed property. As reported in Personal Justice Denied, the official report of the Commission on Wartime Relocation and Internment of Civilians, “Through the insult of massive looting and vandalism of their homes and places of worship by American military forces, the Aleuts lost invaluable tangible ties to their past. Houses can eventually be rebuilt and refurnished, but stolen family mementos, heirlooms and religious icons . . . cannot be recovered.” Quartering was thus not the only or worse thing that the Aleuts suffered at the hands of their government. [footnotes omitted]

As Tom points out, much of the above represents clear violations of the Takings Clause and other parts of the Constitution, in addition to the Third Amendment. Yet, unlike in the contemporary case of the internment of the Japanese-Americans, no one in government even considered the possibility that the Aleuts’ constitutional rights had been violated.

Even when the federal government belatedly gave the Aleuts partial compensation for their losses in the 1980s, officials never admitted that the Aleuts had suffered violations of their Third and Fifth Amendment rights. Ultimately, the surviving Aleuts had to settle for a long-delayed, relatively paltry, $12,000 in compensation. The failure of officials to even consider this obvious violation of the Constitution is, as Tom notes, extremely telling. It does not paint a flattering picture of our constitutional culture, especially when it comes to property rights. It’s worth noting that the era when these violations occurred was also the period when constitutional property rights were first demoted to their present second-class status (though it’s far from clear that the government would have acted differently had a similar situation arisen earlier).

Tom does an excellent job of tracing the implications of the Aleutian episode for Third Amendment jurisprudence, constitutional theory, and property rights. I don’t agree with all of his analysis. For example, I’m not convinced that this episode proves that constitutional protection for personal property is as important as that for real property. At least when it comes to violations by state and local governments, the latter is more likely to be endangered for reasons I discussed in Part I of this article. In this case, most of the harm inflicted on the Aleuts arose from the expropriation of their real property (their land and homes).

Despite a few such disagreements, I highly recommend Tom’s article to anyone interested in property rights, constitutional theory, and – of course – the much-maligned Third Amendment. After reading the sad tale of the Aleuts, you will never again take your Third Amendment rights for granted!

UPDATE: The original link to Tom Bell’s article did not work. I have now fixed the problem. Thanks to various readers for pointing it out.