The Militarization of Police Forces as Violative of the Third Amendment, Part IV: Badges and Incidents Military Occupation

C.            The Third Amendment Protects Us from the Incidents and Badges of Military Occupation

             With respect to race, in enacting the October 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Congress made the following finding:

Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude. (National Defense Authorization Act for Fiscal Year 2010, PL 111-84, October 28, 2009, 123 Stat 2190; See also Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY.  Journal of Constitutional Law, Vol. 14:3 (February 2012) at 563; at https://www.law.upenn.edu/journals/conlaw/articles/volume14/issue3/McAward14U.Pa.J.Const.L.561%282012%29.pdf; accessed on January 28, 2015 at 9:29 p. m. P. S. T.)

What, however, qualifies as a badge or incident of slavery? Does this concept refer only to a public law that discriminates against African Americans or, more generally, on the basis of race? Alternatively, does it encompass any public or private practice that “perpetuates [racial] inferiority?” Or is its scope even broader, extending to “any act motivated by arbitrary class prejudice?” (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 564).

The Thirteenth Amendment promised the freed slaves “universal civil and political freedom.” The concept of the “badges and incidents of slavery” is meant to assist Congress in identifying ways in which it can fulfill that promise and, at the same time, to mark the outer boundaries of the Section 2 power. Indeed, the terms “badge” and “incident” are terms of art that refer to specific aspects of the slave system and its legacy. (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 566).

With respect to the Third Amendment, to analogize the goals of Professor McAward’s article by paraphrase, we must develop and provide a conceptual framework for interpreting and identifying the badges and incidents of the “quartering” of para-military police forces within a modern context. Such a framework not only will assist Congress in crafting Third Amendment legislation and the federal courts in policing the outer boundaries of our fundamental rights under the Third Amendment to be free from military occupation by heavily armed para-military police forces. (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 566).

        The examples provided earlier in the discussion are indicative of police conduct and practices that can be considered badges and incidents of a military occupying force rather than police forces. 

         To be continued...