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Where Does Roberts Stand on the Third Amendment?

I thought this was pretty funny, including a fictional quote from our fearless leader.

twwren:
Does not the third amendment apply to the Katrina tragedy? I read today that the NO Saints cannot use their practice facilities in Meterie partly because they are a staging ground for the military relief mission. Are we at war (yes I'm aware of the war on terror, Irag, etc. but there is no correlation)? With the owners consent?
9.5.2005 7:49pm
Dylan Alexander (mail) (www):
Obviously, the 3rd Amendment's use of "home" must be strictly construed so that it does not apply to the Superdome. In the event some of them take a nap in someone's abandoned house, then just as obviously the original intent was only to protect inhabited homes. Oh, the government won't let them return? Well, let's say National Guard troops, at least, are not "soldiers" in this instance, but are auxiliary law enforcement under state, not federal, control. And the 3rd has not, of course, been incorporated yet.
9.5.2005 8:06pm
twwren:
Dylan:

I am not a constutional scholar. But, I do believe the third amendment is not as irrelevent as the cited parody would suggest.
9.5.2005 8:38pm
Jack Bauer (mail):
Moot. No one else is living there to have standing.

Laws only apply to lawsuits.
9.5.2005 8:52pm
Jack Bauer (mail):
Twwrenm why?

because it means right to privacy? Becuase it justifies abortion?

It doesn't. It says we can't forcefully house troops on private property. That's it.

We should amend the constitution to provide a right to privacy; this was a highly narrow amendment because they meant only that specific prohibition.

Easily the amendment could have said the goverment can't impose on privacy in general, but they didn't. Instead of wierd interpretations, we should fix the problem.
9.5.2005 9:15pm
Michelle Dulak Thomson (mail):
Jack Bauer,

twwren made the case up-thread; it's the first post there.
9.5.2005 9:37pm
Teresa (mail) (www):
That was freakin' hysterical. Thanks for the link Todd.
9.5.2005 10:13pm
John Jenkins (mail):
The Third Amendment probably does not apply to Katrina recovery efforts by the military:

(1) House would not be construed to include a football practice field unless someone were seriously interested in mental gymnastics for its own sake.

It extnds to one's primary place of abode, but you probably don't have a sufficient interest in a place where you have only a license to be (like the Superdome) as opposed to a place where you have a right to be (fee simple owner, life tenant, surface owner, tenant, etc.) I'm not sure whether house ought to be construed to mean "dwelling house" but that seems reasonable;

(2) There is an operational declaration of war and there is no requirement that the location of troops be directly related to the war in the amendment; and

(3) quartered would likely be construed to mean "living there," thus an operations center would not be "quartering" of troops.
9.5.2005 10:42pm
Bruce Hayden (mail) (www):
Griswold v. Connecticut. 381 US 479 (1965)
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy....
9.5.2005 10:59pm
Robert Lyman (mail):
Oh for heaven's sake, is there even the slightest chance that the Saints are going to court to kick the NG out? Hell, if they needed a part of my house, they'd have it, and I'm not a profit-making organization totally dependant on the goodwill of the public in NO.
9.5.2005 11:01pm
Daniel Chapman (mail):
Yes we all know the case. Thanks for the giggle though.
9.5.2005 11:02pm
Mattattack:
But from an originalist perspective, do you think the 3rd was meant to extend to stables? What if the stables only housed horses that were used for sport? J.J.'s parsing of the terms sounds like an argument those filthy red coats would make. I don't think the framer's intent would have been so narrow.
9.5.2005 11:06pm
John Jenkins (mail):
Stables, if within the curtilage of the home, would likely be covered. I *am* something of an anglophile.
9.5.2005 11:29pm
pmp (mail):
Mattattack and Jenkins -- Why not ask FEMA director Brown? His experience consists chiefly in managing horse shows, so he may have useful insight on your question.
9.5.2005 11:34pm
John Jenkins (mail):
He's currently busy looking for his valedictory position at a local community college teaching communications and I would hate to disturb him.
9.5.2005 11:35pm
Penta:
I'm tempted to ask...

Has the Third Amendment ever come up in jurisprudence anywhere?
9.6.2005 12:08am
John Jenkins (mail):
Yes. The Third Amendment was construed in Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982). It was held that National Guardsmen are "Soldiers" within the meaning of the Third Amendment and that apartments in which tenants lived were "houses" within the Third Amendment.

On remand it was determined that the defendants were immune to suit on the grounds of qualified immunity and the Second Circuit affrimed that holding.
9.6.2005 12:25am
Paul McKaskle (mail):
Admittedly there has been little need to invoke the 3rd
Amendment in the United States. But, as opera fans know, the "quartering" of an alleged military officer in the private house where a winsome young woman lived is a key event in "The Barber of Seville." But it was in Spain, not here. The alleged military officer (the hero of the opera) with the connivance of the Barber managed to marry the young woman, so at least on one occasion what would have been a violation of the 3rd Amendment (if it occurred in the U.S.) wasn't such a terrible thing!
9.6.2005 12:52am
just me:
The Saints can reclaim the dome, but only if they march in like soldiers.

Oh, when the Saints, come matching in . . .
9.6.2005 1:12am
Semanticleo (mail):
I hope you comedians can keep your sense of humor when Bush (ala Mushareff) declares martial law. Yuk Yuk Yuk
9.6.2005 1:25am
jurisprude:

(2) There is an operational declaration of war and there is no requirement that the location of troops be directly related to the war in the amendment; and


This seems like an exceptionally narrow reading of the Amendment. I find it hard to believe that (this is taken to the extreme, but serves to illustrate the weakness in this reading) the Court would allow the government to declare war on some rinky-dink little country without necessarily even prosecuting it, and that the declaration of war itself would thus serve to prevent the operation of the amendment. That would appear to be the very same kind of abuse that the amendment was intended to prevent.

Of course, even in wartime, the quartering has to be "in a manner prescribed by law"... that's another issue for discussion. There presumably has to be some sort of statutory provision that would authorize such an occupation.

That said, I do agree with your other two points.
9.6.2005 8:50am
Daniel Chapman (mail):
If we're now having a serious discussion of the 3rd amendment, I have one question. Why is the "in time of peace" exception even included? I believe it's an emergency clause for when our homeland has been invaded and it becomes impractical to house troops in established bases. The framers recognized that it might be necessary at some point in the future for troops to take over a town and take up residence for the night before moving on.

I think it's an overbroad interpretation to say that the 3rd amendment would allow forced quartering during wartime if the war is taking place somewhere far off.
9.6.2005 10:44am
SimonD (mail):
I hope you comedians can keep your sense of humor when Bush (ala Mushareff) declares martial law. Yuk Yuk Yuk
You know, funny story, just before the last election, a lot of my liberal friends were categorically declaring that no election would take place. The election took place. then they started saying that there was absolutely, positively going to be a draft in 2005 - a skills draft in late January, followed by a universal draft in June. Feburary came, no drill sgt. at my door...I started to get offended, perhaps I wasn't "skilled" enough to be drafted. Yet, July came, still no drill sgt. at my door. What was going on, I wondered? After all, my liberal friends were so certain it was going to happen!

But it didn't, and now they're all achatter - particularly those who have imbibed a little too much DemUn a little too often - about conspiracy theories in which Bush declares martial law, or refuses to leave office. Don't hold your breath. I love my liberal friends, but sometimes the plain fact is they need to get a grip. :p

I know y'all are impressionable, and I know there's that movie coming out which says otherwise, but let me say this in the calming, reassuring tone of that drill sgt. you're expecting...THE SKY IS NOT FALLING.

(Oh and that link was funny, although I'm a bit troubled that "originalist" has evidently become the term of abuse of the month. And thus, another term with an actual meaning is stripped of all meaning to become a public insult/compliment by people who wouldn't know the difference between original intent and original meaning if it bit them in the ass).
9.6.2005 10:48am
Tom W. Bell (mail) (www):
Daniel Chapman asked: "Why is the 'in time of peace' exception even included? I believe it's an emergency clause for when our homeland has been invaded and it becomes impractical to house troops in established bases."

By by reading of the historical record surrounding the enactment of the Third, that's not far off. See Tom W. Bell, "The Third Amendment: Forgotten But Not Gone," 2 Wm. &Mary Bill of Rights J. 117 (1993), available at http://www.tomwbell.com/writings/3rd.html. Amend III almost certainly provides for treating quartering during times of civil unrest, etc., like quartering during times of war.
9.6.2005 3:25pm
ralph:
Does it strike anyone as ironic that the constitution explicitly prohibits the use of people houses in peacetime to house troops, without the consent of the owner, but the government can still condemn that same house and give it away to a shopping mall developer?
9.7.2005 9:17am
Cheburashka (mail):
Well, they can take the house if they pay for it - but they can't make you stay in the house and prepare food ("quarter") and change the sheets for a bunch of soldiers.
9.7.2005 12:06pm
Anon.:
Ralph, you need to be more specific -- which "government" and which "constitution" are you talking about? You realize, of course, that the Fifth Amendment of the US Constitution has no application to the states (or, if you insist that it does, at least acknowledge that such application is entirely dependent upon the sophistry of those who sell the oxymoronic snake-oil of selective substantive due process, and that it is contrary to the language that is actual in the Constitution). Rather, the Fifth Amendment is a restriction against action by the national government. Connecticut has its own constitution, and Section 11 is a takings provision which happens to be pretty much the same as that found in the Fifth Amendment, except, of course, that Connecticut's highest court has permitted the "government" (the State of Connecticut or its political subdivisions, that is) to take a person's house (upon payment of just compensation, of course) and give it to a shopping mall developer. I don't think that's a good policy, but I don't live in Connecticut, so I don't get a vote on the issue or on the judges who construe that law or on elected officials who appoint or confirm those judges (whatever the process may be). Kelo was wrongly decided, but not for the reason you suggest.
9.7.2005 12:19pm