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The Constitution’s ignored stepchild: the Third Amendment

“Soldiers being quartered in your home? Call me!’’

You never see that on a lawyer’s billboard. You don’t find a lot of Third Amendment specialists these days. The eternally overlooked amendment resides in a forgotten valley of the Bill of Rights, nestled serenely between the gun-popping Second and door-kicking Fourth Amendments.

But then there is Tom W. Bell, professor in the Dale E. Fowler School of Law at Chapman University in California. Bell believes no legal scholar has written more than he has on the amendment, which states in its entirety, “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.’’

Prof. Tom W. Bell

“The Third Amendment is somewhat obscure for good reason. It doesn’t get violated often,’’ Bell said. But it has been violated at different times throughout history, he says. It happened during the war of 1812, the Civil War and World War II, when the U.S. Army evacuated Aleutian Islanders and occupied their homes. No lawyer “raised a peep. It was like they didn’t know the Third Amendment was there.’’

The U.S. Supreme Court has never based a decision on the Third Amendment and only once has mentioned it – in the 1965 case of Griswold vs. Connecticut – as one of the amendments that implies a right to privacy.

Obsolete from the get-go in many people’s minds, the amendment is the butt of jokes. There is the very dry Third Amendment Lawyers Association, whose website declares it is open to any lawyer with a “passion for anti-quartering.’’

Bell quotes humorist Dave Barry declaring that he wouldn’t mind having soldiers quartered in his home at times, like when he was trying to fix a sprinkler valve and a snake popped up. “If there had been soldiers lodging in my home, they could have dealt with this situation calmly and professionally by shooting the snake into 30,000 pieces.’’

And comedian John Mulaney joked about the amendment before a Saturday Night Live audience, saying he was in his apartment the other day when the buzzer rang. “It was the 101st Airborne. And they said, ‘Permission to land in your house!’ And I went, ‘Third Amendment.’ He said, ‘Gentlemen, he’s invoked the Third. Let’s fall out and find another house to live in.’ ’’

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The Third did have a moment of glory after nearly 200 years of obscurity, however, in the 1982 Engblom v. Carey decision by the U.S. Court of Appeals for the Second Circuit, which found that the state of New York had violated the rights of striking correctional officers by quartering National Guard troops in the state-owned homes from which the officers had been evicted.

Bell said the decision established in law that the definition of home included apartments that aren’t owned by the occupants. It also expanded the definition of soldier to include state militia – National Guard troops – and it declared that the Fourteenth Amendment applied, meaning that the Third Amendment could be claimed against federal and state authorities.

“Maybe we’ll never have another Aleutian Islands quartering because of Engblom vs. Carey,’’ he said.

Bell finds it infuriating that while the Second Circuit sent it back to the lower court, the lower court could not award damages because the state enjoyed qualified immunity from liability.

He wrote a paper comparing the Third Amendment in the Engblom case to the famous clause in the Van Halen rock group contract, which demanded that a bowl of M&Ms be placed in the dressing room with the brown candies removed. It wasn’t an entitled rock star showing off, Bell said. The group knew that if the brown M&Ms remained in the bowl, then attention might not have been paid to the really important provisions of the contract.

The Third Amendment in Engblom vs. Carey is the brown M&M left in the bowl, Bell said, exposing something wrong. The higher court finds that the government violated the prison guards’ rights and tells the lower court to administer justice. “And what does the lower court do? ‘Oh right, got it, bosses … you’re off the hook because of qualified immunity,’” he said.

“The Third Amendment made me realize that qualified immunity stinks,’’ he continued. “I looked into it more and the whole area to me now is just this whole cesspit of law. They should have said, ‘You violated the Third Amendment – pay. You’re lucky we don’t throw you in jail.’ ’’

Bell knew when he was a law student at the University of Chicago that he wanted to be a law professor. And he knew he had to publish to get there. The Bill of Rights was about to mark the bicentennial of its adoption in 1991, so he had a hook for an article, but he needed to pick a topic that wasn’t well covered.

He went over the amendments. “One? No, I know that one’s covered. Two? Oh, that one’s beat like a horse. Three? I don’t even know what Three is and I’m a law student, and I did the quick research, and I said, ‘Holy mackerel! This is like untrod ground.’ ”

He said he got a lot of help from a lot of people and ended up getting published. “And I fell in love with (the amendment). Once you’ve started it, it’s so wonderful, it has so much going on,’’ he said.

“Then over the years it kept coming up again and again and I have returned to that cow many times and milked it, making cheese and yogurt. It’s a good cow,’’ he said, laughing. He has a chapter on the Third Amendment in his new book, Your Next Government?

The amendment stemmed from American framers’ vivid memory of British colonial troops being quartered in private homes, as Pulitzer Prize-winning historian Gordon S. Wood writes.

“When the amendment was written in the eighteenth century, Americans and Englishmen in general believed the issue of quartering troops was of great and palpable significance,’’ Wood writes for the National Constitution Center’s Interactive Constitution (https://constitutioncenter.org/interactive-constitution/interpretation/amendment-iii/interps/12 ).

“During the course of their history the English had developed a deep dislike of standing armies; they especially objected to the government’s compelling them to quarter soldiers in their home.’’

The British inflicted quartering on the American colonists during and after the French and Indian War ended in 1763, Wood noted; the British parliament legitimized the practice by passing the Quartering Act of 1765 and a new Quartering Act of 1774, which allowed “the billeting of soldiers in private homes if the colonists refused to provide other lodging.”

In the Declaration of Independence 11 years later, two of the accusations leveled against King George III were his keeping “Among us, standing armies, without the consent of our Legislatures’’ and his “quartering large bodies of armed troops among us,’’ Wood stated.

Bell said one could argue that the Third Amendment has deeper historical roots than any other part of the Bill of Rights. “It goes back to 1131, when Henry I first granted a charter to London. The London townspeople had gotten sick of the king showing up with his royal household … and saying,’Hey, I’m the king, you’ve got to house me.’ ’’ So he had to promise Londoners he wouldn’t do that.

The king’s freeloading evolved into the quartering of troops, Bell said.

“We think now, ‘What’s the big deal? It seems kind of silly.’ But it’s a very personal, very harmful kind of violation of rights, to have strangers who are armed young men, uncouth. There’s cases where daughters got raped and lots of thefts and burning down of buildings. I mean, you’ve got enemy troops in your home! Terrible.’’

It’s always possible the Third Amendment could become relevant again, Bell believes. He mentions a 2008 article by James P. Rogers in the Cornell Journal of Law and Public Policy, which argued that National Guard troops and police were quartered on private property in New Orleans in the aftermath of Hurricane Katrina and may have violated the Third Amendment.

Bell noted that the circumstances are questionable – whether permission was granted and whether some venues would be considered homes.

“At the end of the day, while it seems quartering likely happened in post-Katrina New Orleans, it is hard to point to a smoking gun,’’

Bell said he hasn’t heard about quartering of federal officials on private property as a complaint in the Portland riots of late, but he wonders about federal officers arresting people and taking them away. What are they being charged with? “I’d like to know what’s going on habeas corpus-wise.’’

In the chaos of these times, he said, he could see these “soldier-like entities’’ being put on private property without permission of the owners.

“That could totally happen. Totally happen. It’s not the first thing to happen, not the first thing to worry about, either,’’ he said. “This is among the parade of horribles that, alas, could occur.”