What Has the Third Amendment to Do with the Black Pinesnake? by Gary Galles

I normally do not copy articles but this one is worth posting as it involves an area of interest of mine...  

Law and Liberty, March 2, 2023

https://lawliberty.org/what-has-the-third-amendment-to-do-with-the-black-pinesnake/?utm_source=LAL+Updates&utm_campaign=c9c456c460-LAL+Updates&utm_medium=email&utm_term=0_53ee3e1605-c9c456c460-72470097

The US Fish and Wildlife Service (FWS) listed the black pinesnake as “threatened” under the Endangered Species Act (ESA) in 2015. Five years later, FWS categorized about a third of a million acres in Alabama and Mississippi as “critical habitat” for the snake. That included a bit under 100,000 acres of privately owned land, 10,000 of which comprise Gray Skipper’s family lumber business. As a result, those private owners face land-use restrictions which will transfer much of their effective ownership to the black pinesnake, in order to provide the “public good” of species protection.

On its face, it is unjust to force those private parties “lucky” enough to have their land called “critical habitat” bear the burden of protecting species that their actions did not put at risk. If the benefits go to the general public, the costs should be borne by the public. That aspect of the ESA clearly violates one of the rallying cries of the American Revolution—“no taxation without representation.”

In the case of Gray Skipper, imposing such burdens is doubly unfair. He is described as a “model private conservationist,” whose land-use model, according to Pacific Legal Foundation attorney Charles Yates, includes “maintaining original habitat,” which is the purpose of the ESA. Yet in this case the “families that maintain habitat are punished, and the FWS’ policy is self-defeating.”

Beyond this, however, there is another FWS abuse at play. It asserts that Skipper’s property is “occupied” by the black pinesnake, a clear prerequisite for the habitat to be critical for the snakes’ survival. But as the PLF’s complaint on Skipper’s behalf reveals, only five total sightings of the snake on the property in question have occurred in the last quarter-century, four of which were more than twenty years ago, and the only sighting since then was seven years ago. Further, “a comprehensive state survey” of the area “found no pinesnakes on the property.” Since the species still exists, land they haven’t lived on for a substantial amount of time cannot be essential to their survival.

There is hope that reason will prevail in this case, particularly as a result of Weyerhaeuser v. Fish and Wildlife Services, heard by the Supreme Court in 2018. It involved about a hundred remaining dusky gopher frogs living in Mississippi. FWS designated 1,500 acres of privately-owned land in Louisiana as critical habitat for the frog. But the frogs had not lived in Louisiana for 50 years. Further, the location was not even suitable for the frogs. Its existing loblolly pines would have to be removed and replaced with longleaf pines, which would also require periodic burning. Yet FWS decided that forcing the owner to adapt their land for the frog was “reasonable,” without even making an environmental impact study.

Justice Alito got at the central issue in that case when he said, “The question is who is going to have to pay and who should pay for the preservation of this public good?” on the way to rejecting FWS’s claims.

It seems obvious that while FWS’ invalid assertion that an endangered species occupied land designated “critical habitat” offered sufficient reason to reject their claims, there is an even more important constitutional issue in play that would apply more broadly, including cases where a species did in fact occupy the land in question.

FWS’s actions, with respect to both the dusky gopher frog and the black pinesnake, are clear violations of the Fifth Amendment’s “nor shall private property be taken for public use without just compensation.” But it has not always been so obvious to previous Courts. The word “taken” has been redefined almost completely away by rulings that government has not taken property requiring compensation, as long as the owner retains some value (as if one was to deem that a mugger did not rob you if he left you with enough money for cab fare home). As Justice Stevens expressed this questionable bit of logic in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Preservation Council, owners were due compensation only in “the extraordinary case in which a regulation permanently deprives property of all value.”

That sounds like the dystopian slippery-slope problem Justice Oliver Wendell Holmes recognized in Pennsylvania Coal: “The protection of private property in the Fifth Amendment … provides that it shall not be taken for such use without compensation. … When this seemingly absolute protection is qualified … the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.” It also brings into question Holmes’ conclusion, “But it cannot be accomplished in this way under the Constitution of the United States.”

Justice Stevens’ tortured Fifth Amendment logic allowing partial takings to be ignored as if they were not takings at all could be rectified if the Court considered the Third Amendment seriously. That would bridge the substantial gap between two things Justice William Douglas expressed. He said, “The Fifth Amendment is an old friend a good friend. It is one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized,” yet he also argued that “few provisions of our Bill of Rights, notably the Third Amendment and its prohibition against quartering of soldiers in private homes, have no immediate relation to any modern problem. Most of the other guarantees against government are, however, as important today as they were when first adopted.”

The Third Amendment’s guarantee that “No soldier shall, in time of peace be quartered in any house, without the consent of the owner” clarifies the Fifth Amendment’s Takings Clause. It expressly prohibits even a partial government taking of property—the value of that part of one’s property forcibly required to quarter (that is, house) a soldier for a period of time, which overrides the use toward which the owner would have put that part of their property—even in pursuit of the constitutionally enumerated federal function of providing for the common defense. This is crucial for questions involving species preservation proposals under the ESA, as they are also partial takings, but they do not involve a constitutionally enumerated federal function.

The Third Amendment reflects our founders’ view that takings are not limited only to complete government property takeovers, but also partial takings. As John Adams wrote, in Defense of the Constitutions of Government of the United States of America, “Property is surely a right of mankind as real as liberty. …The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” With such an understanding, constitutional property rights are enforced; without it, they can be almost entirely eviscerated.

To illustrate, consider the Constitutional implications if Congress passed a law declaring that black pinesnakes and dusky gopher frogs (or the Delhi Fly, fairy shrimp, or other beneficiaries of uncompensated Endangered Species Act takings) were to be considered American soldiers. Obviously that is a stretch, but my purpose is to illustrate that applying the logic of the Third Amendment to the Fifth Amendment’s Takings Clause would make the FWS’s current application of the ESA invalid.

Forcing owners to quarter those snakes, frogs, and others on their property without compensation would violate the Third Amendment. And that reconnection between the Third Amendment and the Fifth Amendment could have powerful effects, since if such a partial taking would be unconstitutional in pursuit of the enumerated federal function of national defense, it would certainly be unconstitutional for species protection, which is not constitutionally authorized.

There is reason to believe that the Supreme Court will, as in 2018, limit FWS’s attempted over-reach under the ESA, because land that an endangered species had not occupied for a substantial period of time cannot accurately be designated as critical habitat. However, such a ruling would be quite narrow in its application. If, instead, the focus was on how forcing particular property owners to bear the burdens of providing benefits for all Americans, even if it involved only a partial taking of their property’s value, violated the Fifth Amendment as clarified by the long-ignored Third Amendment, it would provide far broader protections for Americans’ property rights, as FWS is hardly the only government entity violating them.

Biden Speak... Blargh... blargh... blargh...

Chairman of Senate Judiciary Committee Joe Biden asking questions of Supreme Court nominee Ruth Bader Ginsburg, July 20-23, 1993, https://www.loc.gov/law/find/nominations/ginsburg/hearing.pdf, pp. 279-282

The CHAIRMAN.  Well, if I had to be on an island with a man for any extended period of time, I might pick Judge Scalia. The reason I would, sincerely, is I think he is brilliant, I think he is dead wrong most of the time, as he thinks I am, and it would be, as an- other nominee who came before us once said, when asked why he wanted to be on the Court, it would be an intellectual feast. 

A slight digression: I had a conversation with Justice Scalia after you had been nominated, to tell him that I was about to say in an interview the vote I most regretted casting out of all the ones I ever cast was voting for him, because he was so effective. He said what are you doing now? I said I am teaching a course in constitutional law at Widener University. He said, oh, my God, I had better come and tell them the truth. [Laughter.] 

So I am sure he would have an opportunity to educate me, if we were on an island together.  Having said that, Justice Scalia, on a very serious note, has offered one method, a methodology to determine whether or not a right of privacy, a personal right that is not enumerated, not mentioned in the Constitution, warrants constitutional protection. And he has written that the only interests protected by the liberty clause of the 14th amendment are those interests which are de- fined in the most narrow and specific terms, where historical safe- guards from government interference have existed. 

Now, as you know better than I do—again, at the expense of offending my brethren in the press, I am going to be very fundamental about this, to use a phrase from another context—when in the past we determined whether or not fundamental rights of privacy exist, one of the things they go back and do, as courts have done, is look at history. They say what have we done in the past, as a people, what has our country done, what has our English jurisprudential system recognized, not only here in the States, but in England, in the common law? And they look back at that as one of the guideposts, not the only one, not necessarily determinative, but that is what they have done. 

I think, by inference, Justice Scalia acknowledges that is an appropriate method, at least a starting point to determine whether or not an unenumerated right should be recognized as protected by the Constitution. 

So Justice Scalia says that when you go back, determining whether or not there is an interest protected by the liberty clause of the 14th amendment, you go back and look at those interests de- fined in their most narrow and specific terms. So the question for Justice Scalia, in deciding whether the Constitution protects a particular liberty, including a particular privacy interest, is whether years and years ago the Government recognized that precise specific interest. 

Now, that approach of Justice Scalia, which was outlined by him in the Michael H. case, that approach is very different from an- other that I would characterize as the traditional approach for determining whether or not these unenumerated rights that we have recognized exist. 

The traditional approach, in my view, looks to whether the Constitution expresses a commitment to a more general interest, and then asks how that commitment should be applied in our time to a specific situation. The difference between these two approaches can make all the difference in the world on where a Justice comes out on the finding of whether such a right exists or doesn't. 

For example, under Justice Scalia's approach, the right to marry someone of a different race is not protected by the Constitution, at least arguably, based on things he has said, because the right to marry is nowhere specifically mentioned in the Constitution. And when you go back to look at whether or not—which is one of the methods used by all Justices to determine whether or not there is an unenumerated right that should be protected—when you go back in history and look, there is no place you can say that, under our English jurisprudential system, our courts or the English courts have traditionally recognized the specific right of blacks and whites to marry. And since you can't find that back there, then the right doesn't exist. 

Whereas, in footnote 6, for example, as you well know, although Justices Kennedy and O'Connor agreed with the overall finding on that case—which I won't bother you with the facts, which you know well and are not particularly relevant to my point—they said we dissent from the methodology used by Justice Scalia in arising at a decision, which is the right decision—my words—but for the wrong reason. And they said you go back and you look at the gen- eral proposition of whether or not the general interest seeking protection under the Constitution is in fact one we have historically protected. 

So they say when you go back, you should look at whether we historically protected the right and recognized the right of individuals to marry who they want to marry. So you go back and, de- pending on what question you ask, you get a different answer. If you go back and say, OK, we will recognize—and I am oversimplifying—we are going to recognize, determine whether or not antimiscegenation laws are constitutional, and the basis on which they are being challenged is I have a privacy right to marry who I want to marry, so let's see if that right is protected by the Constitution. 

Scalia's approach, you go back and look at all the history and say, hey, there is no place where blacks and whites were protected. But if you used the O'Connor approach, you go back and say have we recognized the right to marry? You say yes, we have done that, ergo, we can say, using that methodology of looking at the general proposition, there may be a principled rationale to acknowledge or recognize the right to marry a black man or a white woman or a white man or a black woman, that may fall within the domain of my right of privacy guaranteed by the Constitution. 

...

The CHAIRMAN. He may have come up with the exact same decision of saying that it would, in fact, be inappropriate and unconstitutional for the State of Virginia to have such a law. But he would not have found it, if you used his methodology, because that is where the right of privacy has most often been found by the courts since Pierce. 

Now, in contrast, as I said, under the more traditional approach recognizing unenumerated rights, the courts ask not whether the legal system historically had protected interracial marriages, but whether the legal system historically had protected the institution of marriage generally. Because it had, because our legal system long had understood the importance of family integrity and inde- pendence, the Court held in Loving v.Virginia that the particular right to marry someone of another race is also protected. 

Now, in thinking about how the Constitution protects unenumerated rights, including rights of privacy, will you use—I am not asking you where you are going to come out on any issue, but will you use the methodology that looks to going back to a specific right being sought, guaranteed, or will you use the more traditional method of more broadly looking at the right that is attempting, seeking constitutional protection before the Court? What methodol- ogy will you use? What role will history and tradition play for you in determining whether or not a right exists that is not enumerated?

Judge GlNSBURG. Mr. Chairman, if I understand your question correctly... if you are asking whether I would have subscribed to both parts of Loving (1967)—that is, both the equal protection and due process 

The CHAIRMAN. NO. Let me be very clear. I don't care about Loving. I was using Loving as an illustration as to how you would arrive at a different decision depending on which methodology.

Proposed XXVIIIth Amendment to Recall the President of the United States

Enough is enough. The political process in this country is broken and it is time for us, the People, to take back our country. The first thing we must do is to pass an amendment to the Constitution allowing us to recall a President. We cannot wait for another 4 years when a President is pursuing a policy that (1) the majority of the People believe is wrong; (2) the majority in Congress believe is wrong, yet the President mulishly insists on pursuing, e.g. America's long wars.

Here is a first draft based on Article II, sections 13-19 of the California Constitution. Please comment, revise, criticize, add, delete, etc. 

[Proposed] XXVIIIth Amendment to Recall the 

President of the United States 

SEC 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

SEC. 2. Recall is the power of the electors to remove the President of the United States from office.

SEC. 3. (a) Recall of a President is initiated by the xxxx delivering to the Federal Elections Commission (?) a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have xxx days to file signed petitions. 

(b) A petition to recall the President of the United States must be signed by electors equal in number to 12 percent of the last vote for the office, with signatures from each of 50 states equal in number to 1 percent of the last vote for the office in that state. Signatures to recall the President must equal in number 20 percent of the last vote for the office. 

(c) The Secretary of State for each state shall maintain a continuous count of the signatures certified to that office.

SEC. 4. (a) An election to determine whether to recall the Presidentand, if appropriate, to elect a successor shall be called by thexxxx and held not less than xx days nor more than xx days from the date of certification of sufficient signatures. 

(b) A recall election may be conducted within 180 days from the date of certification of sufficient signatures in order that the election may be consolidated with the next regularly scheduled election, or upon a special election for the sole purpose of selecting the successor.

(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. 

SEC. 5. The Congress shall provide for circulation, filing, and certification of petitions, nomination of candidates, and the recall election.

Militarized Police are More Often Deployed in Poor Communities

Must Read

Militarization fails to enhance police safety or reduce crime but may harm police reputation
Jonathan Mummoloa,b,1
aDepartment of Politics, Princeton University, Princeton, NJ 08544; and bWoodrow Wilson School of Public and International Affairs, Princeton University, Princeton, NJ 08544
Edited by John Hagan, Northwestern University, Evanston, IL, and approved July 2, 2018 (received for review March 24, 2018)

The increasingly visible presence of heavily armed police units in American communities has stoked widespread concern over the militarization of local law enforcement. Advocates claim milita- rized policing protects officers and deters violent crime, while critics allege these tactics are targeted at racial minorities and erode trust in law enforcement. Using a rare geocoded census of SWAT team deployments from Maryland, I show that militarized police units are more often deployed in communities with large shares of African American residents, even after control- ling for local crime rates. Further, using nationwide panel data on local police militarization, I demonstrate that militarized policing fails to enhance officer safety or reduce local crime. Finally, using survey experiments—one of which includes a large oversample of African American respondents—I show that seeing militarized police in news reports may diminish police reputation in the mass public. In the case of militarized policing, the results suggest that the often-cited trade-off between public safety and civil liberties is a false choice.
police militarization | public safety | crime | race and policing |bureaucratic reputation

http://www.pnas.org/content/early/2018/08/14/1805161115

Cruel and Unusual: Juveniles Sentenced to Life Inprisonment Without Possibility of Parole

I will update this post as new cases arise.

It is easier to build boys than to mend men.  Author Unknown

In 2013, The Sentencing Project Report issued a report entitled:  LIFE GOES ON:  THE HISTORIC RISE IN LIFE SENTENCES IN AMERICA.  As disturbing as the report is, what is particularly horrifying is the following: 

"Approximately 2,500 juveniles are serving a sentence of life without the possibility of parole.26 The United States is the only country in the world that imposes this sentence on youth.  Juveniles serving such sentences have recently garnered attention because of two major Supreme Court cases, Graham v. Florida and Miller v. Alabama.27  In Graham, the Court decided in 2010 that because of their cognitive, behavioral, and emotional differences from adults, youth under 18 at the time of their crime who did not commit a homicide could not be sentenced to the harshest available sentence.  In the Miller case two years later, the Court again relied on expert knowledge from the field of adolescent brain science to find an 8th Amendment violation in sentencing youth to LWOP in a mandatory way that did not allow for consideration of their age and other relevant factors.  According to estimates, the Miller decision might affect the sentences of 2,000 of these life-sentenced individuals, but cases are pending in as many as ten state supreme courts about whether Miller applies retroactively. Despite these two decisions, juveniles can still receive LWOP sentences through discretionary judicial decisionmaking.

In addition to the juveniles serving life sentences without parole, 7,862 people are serving life sentences with the possibility of parole for offenses that occurred before they turned 18.  Looking at overall life sentences, we note that in four states, more than 10% of all life-sentenced prisoners were under the age of 18 at the time of their offense: Nevada (12.5%), Wisconsin (11.0%), Maryland (10.5%), and Georgia (10.2%). Nationally, 6.5% of those serving life sentences with parole were under 18 at the time of their crime.

When a life sentence is imposed on a young person, it is precipitated by a mandatory or discretionary transfer of the case to the adult criminal court.  Only youth who have been transferred out of the juvenile court system and into the adult criminal justice system are candidates for life sentences; there is no such sentence in the juvenile justice system.  Transferring youth to adult court became more common in the late 1980s and early 1990s with a political response to a rise in youth crime.  The near doubling of cases transferred to the adult system from 7,200 in 1985 to 13,200 in 1994 contributed to many more youth being given life sentences.  Because of the growing awareness of harm done to youth combined with increased public safety problems when young people are moved to the adult system, many states are beginning to reconsider the transfer mechanism that tries youth in the adult system,28 but nearly all states and the federal government still maintain some process by which youth can be moved to criminal courts for prosecution and in some cases this transfer is mandatory." (id. at 11, 12).

This is INSANITY!  The United States lectures other countries on human rights, yet we try kids as adults and lock them up in adult prisons for the rest of their lives. And we think this is justice.  NOT!!!

Accordingly, I will track decisions and articles dealing with the imprisonment of juveniles in adult prisons without possibility of parole.

Graham v. Florida, 130 S.Ct. 2011 (2010)  8th Amendment; LWOP; non-homicide  J. Kennedy opinion.  State cannot sentence juvenile offenders who committed nonhomicide crimes to life imprisonment without the possibility of parole (LWOP).   State must give defendants “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Id. at 2030).


Michael T. Freeman, Meaningless Opportunities:  Graham v. Florida and the Reality of de Facto LWOP Sentences, 44 McGeorge L. Rev. 961 (2013) De facto LWOP sentences for juveniles who commit nonhomicide offenses categorically violate the Eighth Amendment’s ban on cruel and unusual punishment.   “de facto LWOP sentence” as term-of-years sentence that serves as the “functional equivalent of a life without parole term.”  (Id. At 963)


California v. Mendez, 114 Cal.Rptr.3d 870 (Ct. App., 2d Dist. 2010)  De facto LWOP Discusses Mendez’s  lengthy sentence.  Mendez had not received a LWOP sentence but argued that lengthy sentence was de facto LWOP


California v. Nuñez, 125 Cal. Rptr.3d 616 (Ct. App., 3d Dist. 2011) De facto LWOP Invalidated 175-year-long sentence for juvenile who committed aggravated kidnapping.

California v. Caballero, 282 P.3d 291 (Cal. 2012)  De facto LWOP De facto LWOP sentences for juvenile nonhomicide offenders violate the Eight Amendment.

California v. J.I.A., 127 Cal. Rptr.3d 141 (Ct. App. 4th Dist. 2011) De facto LWOP Fifty-years-to-life sentence for fourteen-year-old defendant is cruel and unusual punishment because the defendant is ineligible for parole until age of seventy.

California v. Ramirez, 123 Cal. Rptr.3d 155 (Ct. App. 2d Dist. 2011) Contra authority
Strong dissent.  Sentence of 120 years to life for a juvenile defendant who committed attempted murder was constitutional.   But see id. at 166-71 (Manella, J., dissenting) – Graham applies and defendant’s sentence is unconstitutional.

The end of law: peace, order and the common good

1. Jay in Federalist No. 2

Nothing is more certain than the indispensable necessity of government… the people must cede to it some of their natural rights, in order to vest it with requisite powers.

2. “Law is said to bind those subject to it, and whoever is bound find his freedom curtailed to some extent.”

3. “The purpose of law [is]… to protect and promote true liberty. Law tends to make men good, directing them to their last end pointing out to them the means necessary to this end.”

4. Plato.

Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. Plato, Laws IX, p. 754 The reason for this “No man’s nature is best for human society; or knowing, always able and willing to do what is best.”

5. “True are or politics is concerned, not with private but with public good (for public good binds together states, but private only distracts them); and that both the public and private good as well as of states is greater when the state and not the individual is first considered.”

6. Although a person knows in the abstract that this is true yet if he be possessed of absolute and irresponsible power, he will never remain firm in his principles or persist in regarding the public good as primary in the state, and the private good as secondary. Human nature will always be drawing him into avarice and selfishness, avoiding pain and pursuing pleasure without any reason, and will bring these to the front, obscuring the juster and better… For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no needs of laws to rule over him ; for there is no law or order which is above knowledge, nor can mind without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.

7. Aristotle

“Now if arguments were in themselves enough to make men good, they would justly… have won very great rewards… [but] they are not able to encourage the many to nobility and goodness. For these do not by nature obey the sense of shame, but only fear, and do not abstain from bad acts because of their baseness but through fear of punishment; living by passion they pursue their own pleasures and the means to them, and avoid the opposite pains, and have not even a conception of what is noble and truly pleasant since they have never tasted it.”

8. For he who lives as passion directs will not hear arguments that dissuades him, nor understand it if he does; and how can we persuade one in such a state to change his ways? And in genera passion seems to yield not to argument but to force. The character, then, must somehow already be there already with a kinship to virtue, loving what is noble and hating what is base.

But it is difficult to get from youth up a right training for virtue if one has not been brought up under right laws; for to live temperately and hardily is not pleasant for most people, especially when they are young. For this reason their nurture and occupations should be fixed by law; for they will not be painful when they have become customary.

9. [E]ven when they are grown up, practice and be habituated to them, we shall need laws for this as well, and generally speaking to cover the whole of life; for most people obey necessity rather than argument, and punishments rather than the sense of what is noble.

10. [I]f…the man who is to be good must be well trained and habituated, and go on to spend his time in worthy occupations and neither willingly nor unwillingly do bad actions, and if this can be brought about if men live in accordance with a sort of reason and right order, provided this has force—if this be so, the paternal command indeed has not the required force or compulsive power (nor in general has the command of one man, unless he be a king or something similar); but the law has compulsive power, while it is at the same time a rule proceeding from a sort of practical wisdom and reason. And while people hate men who oppose their impulses, even if they oppose them rightly, the law in its ordaining of what is good is not burdensome.

11. [W]hat should be the conditions of the ideal or perfect state; for the perfect state cannot exist without a due supply of the means of life… There will always be a certain number of citizens, a country in which to place them, and the like.

12. [A state even if great by numbers] [W]e ought not to include everybody, for there must always be in cities a multitude of slaves and sojourners and foreigners; but we should include those only who are members of the state, and who form and essential part of it.

13. [Aristotle then argues that size makes a country more difficult to govern as laws cannot be efficiently and effectively implemented even-handedly.] Moreover, experience shows that a very populous country can rarely, if ever, be well governed; since all cities which have a reputation for good government have a limit of population… For law is order, and good law is good order; but a very great multitude cannot be orderly: to introduce order into the unlimited is the work of a divine power—of such power as holds together the universe. Beauty is realized in number and magnitude, and the state which combines magnitude with good ordr must necessarily be the most beautiful.

14. Aquinas

Article I. Whether law is something pertaining to reason? Law is a rule and measure of acts, by which man in induced to act or is restrained from acting [law is derived from ligare (to bind), because it obliges one to act.]

15. Article 2. Whether the law is always directed to the common good? It would seem that the law is not always directed to the common good as to its end.

a. Objection 1. For it belongs to law to command and forbid.

b. Aquinas Answers: Now the first principle in practical matters, which are the object of practical reason, is the last end; and the last end of human life is happiness of beatitude… Consequently, the law must regard principally the relationship to happiness.

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...