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.
(U.S. Const. amend. III)
In his outstanding
treatise on the Bill of Rights, Akhil Reed Amar observes that “[The]
Third Amendment focuses on structural issue of protecting civilian values
against threat of an overbearing military.
No standing army in peacetime can be allowed to dominate civilian
society, either openly or by subtle insinuation. (Akhil Reed Amar, at 59) He then suggests, the term ‘occupation’ is
not limited merely to physical space. “What about more insidious forms of
military occupation, featuring federal soldiers cowing civilians by
psychological guerrilla warfare, day by day and house by house?” (Id.)
A. Third
Amendment Penumbral Rights
Professor Amar
observes that the United States Supreme Court has reconstructed the Third
Amendment [incorporating it and making it applicable to the States through the
14th Amendment] “in an unreflective but highly plausible way. In landmark cases like Griswold v. Connecticut [italics in original], the Court has viewed
the Third Amendment as an embodiment of a right of “privacy” in the home.” (Akhil
Reed Amar, supra, at 267).
In Griswold v.
Connecticut, the defendants were convicted of violating the Connecticut
birth control law. The Circuit Court in the Sixth Circuit, Connecticut,
rendered judgments, and the defendants appealed. The Appellate Division of the
Circuit Court affirmed, and defendants appealed. The Connecticut Supreme Court
of Errors, 151 Conn. 544, 200 A.2d 479, affirmed, and the defendants appealed.
The Supreme Court, Mr. Justice Douglas, reversed the state courts, holding that the Connecticut law forbidding use
of contraceptives unconstitutionally intrudes upon the right of marital
privacy. (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.
Ed. 2d 510 (1965)).
Most importantly, Griswold
“protected basic constitutional rights and applied them against the states in
conventional fashion under the Fourteenth Amendment, and it mandated a stricter
scrutiny for laws that interfere with “fundamental personal rights” than those
that regulate economic relations.” (Griswold v.
Connecticut inThe Oxford Companion to the Supreme Court of the
United States, Kermit L. Hall, ed., 2d. Ed. (Oxford University Press, 2005) at
408).
[S]pecific
guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance. [internal citations
omitted]. 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. (Griswold v.
Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510
(1965)).
Thus
the “philosophy of the amendment” according to the opinion in Griswold is “that
a constitutional right of privacy could be constructed from the commitment to
personal autonomy found in the penumbras of the Bill of Rights.” (Third Amendment, in The Oxford
Companion to the Supreme Court of the United States, supra, at 1015).
This
philosophy of penumbral rights was reaffirmed as the Supreme Court impliedly
held, e.g., that the Fourth Amendment “protects individual privacy against
certain kinds of governmental intrusion, but its protections go further, and
often have nothing to do with privacy at all. Other provisions of the
Constitution protect personal privacy from other forms of governmental
invasion.” (Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507,
510, 19 L. Ed. 2d 576 (1967). The Third Amendment's prohibition against the
unconsented peacetime quartering of soldiers protects another aspect of privacy
from governmental intrusion. (Id., 389 U.S. at 351 fn. 5, 88 S. Ct. at 511).
Since
Griswold, these penumbral rights to privacy have been examined whether
they apply to sale of contraceptives to unmarried individuals (Carey v.
Population Services International, 431 U.S. 678 (1977); relations among
homosexuals (Bowers v. Hardwick, 478 U.S. 186 (1986); and women’s
choices regarding abortion. (Roe v. Wade, 410 U.S. 113 (1973).
While the
Supreme Court has never decided a case dealing direction with the quartering of
troops, the Court of Appeals for the Second Circuit held in Engblom
v. Carey, 677 F.2d 957 (2d Cir. 1982) that
the Third Amendment is incorporated into the Fourteenth
Amendment for application to the states, the Third Amendment was designed to
assure a fundamental right to privacy (Id., 677 F.2d at 962), and that Third Amendment
applied to the National Guard while on State Duty. (Third Amendment, in The Oxford
Companion to the Supreme Court of the United States, supra, at 1015).
Engblom
v. Carey, 677 F.2d 957 (2d Cir. 1982) involved
an action brought in the Southern District of New York under 42 U.S.C. § 1983
and 28 U.S.C. §§ 1331 and 1343(3) & (4) by two correction officers at the
Mid-Orange Correctional Facility (“Mid-Orange”) in Warwick, New York, against
the Governor and various officials of the State of New York,
plaintiffs-appellants contend that their due process and Third Amendment rights
were violated during a statewide strike of correction officers in April and May
of 1979 when they were evicted from their facility-residences without notice or
hearing and their residences were used to house members of the National Guard
without their consent. As the Engblom
Court observed: “For the first time a federal court is asked to invalidate as
violative of the Third Amendment the peacetime quartering of troops “in any
house, without the consent of the Owner.” (Engblom v. Carey, 677 F.2d at
959).
The
facts of the case were as follows:
At
the time of the strike appellants had worked at Mid-Orange for nearly two years
and were residing in housing located on the grounds of the facility. Of the
total staff of some 210, approximately 36-45 officers resided in the “Upper and
Lower Staff Buildings” located at Mid-Orange. Although only employees were
eligible to live there, such residence was optional on the employee's part and
not a condition of employment. (Engblom v. Carey, 677 F.2d at 959).
…
On
April 18, 1979, a statewide strike was called by the Security and Law
Enforcement Employees Council 82, AFL-CIO. On that day Governor Hugh L. Carey
issued a Proclamation and Executive Order activating the National Guard. On
April 19 most of the officers at Mid-Orange joined the strike. Either on that
day or the following day Superintendent Snow because of the strike issued an
order barring striking employees from the facility grounds unless they obtained
his permission. At 12:10 A.M. on April 21 Snow finally declared an emergency at
Mid-Orange. Beginning around April 19, National Guardsmen had begun arriving at
Mid-Orange, eventually reaching a maximum force of 260.
As
a result of these developments, from April 19 to April 25 appellants and other
employees believed to be on strike were repeatedly denied access to the
administration building. Striking officers who lived in staff housing were thus
also denied access to their apartments, with one exception on April 20 when
appellant Engblom was permitted to retrieve some personal items. The payroll
rental deductions were cancelled effective April 19, 1979. Some time before
April 25 a decision was made by Mid-Orange to clear the rooms that had been
leased to the striking officers so that the rooms could be used to house
National Guardsmen, who until then had been housed in the school and
administration buildings. On April 25 officer-tenants were permitted to enter
and remove and store their belongings in a locked storage area in the building,
and appellants did so. Their rooms had been ransacked and personal
property was found to be missing or destroyed. Beginning at the same time
Guardsmen were housed in these rooms and remained until the end of the strike
on May 5…
Participation
in the strike was the sole reason for evicting resident staff-tenants and using
their rooms to house the Guard. However, at no time prior to the evictions did
Mid-Orange provide notice or undertake investigations in accordance with its
own regulations…
When
the strike was over on May 5, appellants were made an offer to resume residence
in their staff housing, which they declined. Neither was terminated and both
continue to work as correction officers at Mid-Orange. (Engblom v. Carey, 677 F.2d at 960-61).
The Court’s
reasoning and holding:
The crux of appellants' Third Amendment
claim depends on whether the nature of their property interest in their
residences is sufficient to bring it within the ambit of the Third Amendment's
proscription against quartering troops “in any house, without the consent of
the Owner.” The absence of any case law directly construing this provision
presents a serious interpretive problem, and little illumination can be gleaned
from the debates of the Constitutional Convention. We are thus left with the
language of the Third Amendment and analogies to other areas of law. Under a
technical and literal reading of the language, the Third Amendment would only
protect fee simple owners of houses. We reject such a formalistic
construction for the same reasons that it has been rejected in analogous
contexts. (Engblom v. Carey, 677
F.2d at 961-62).
The Third Amendment was designed to
assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479,
484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965)... Since the privacy interest
arises out of the use and enjoyment of property, compare Griswold, supra
(privacy in marital relationship), an inquiry into the nature of the
property-based privacy interest seeking protection becomes necessary. In
closely analogous contexts rigid notions of ownership are not prerequisites to
constitutional protections. When determining whether a legitimate expectation
of privacy exists for the purposes of the Fourth Amendment, for instance, the
Supreme Court has rejected the notion that a protected privacy interest in a
place must be “based on a common-law interest in real or personal property.” [internal
citations omitted] Rather, the Court stated that “one who owns or lawfully
possesses or controls property will in all likelihood have a legitimate
expectation of privacy.” Id. (emphasis added). Similarly, in applying the due
process clause, the Court has extended its procedural protection “well beyond
actual ownership of real estate, chattels, or money,” …, and has interpreted
“property” as “not limited (to) a few rigid, technical forms,” but as
“denot(ing) a broad range of interests that are secured by ‘existing rules or
understandings.’ ”... A rigid reading of the word “Owner” in the Third
Amendment would be wholly anomalous when viewed, for example, alongside
established Fourth Amendment doctrine, since it would lead to an apartment
tenant's being denied a privacy right against the forced quartering of troops,
while that same tenant, or his guest, or even a hotel visitor, would have a legitimate
privacy interest protected against unreasonable searches and seizures. [citations
omitted].
Accordingly we hold that property-based
privacy interests protected by the Third Amendment are not limited solely to
those arising out of fee simple ownership but extend to those recognized and
permitted by society as founded on lawful occupation or possession with a legal
right to exclude others…
Applying these principles, as a matter
of state law appellants throughout the strike had a lawful interest in their
living quarters sufficient to entitle them to exclude others… Thus, even if
pre-deprivation due process procedures were not available to them, they
retained a protectible interest in their quarters until they were lawfully
deprived of it.
Appellants' interest, moreover,
reasonably entitled them to a legitimate expectation of privacy protected by
the Third Amendment. Appellants' rooms, which they furnished and for which they
were charged a monthly rent, were their homes. They did not maintain separate
residences or have alternative housing available in the event of an emergency.
During the entire two-year period preceding the strike, appellants did not
reside in any other dwelling…
Finally appellants' jobs were not
conditioned on their living in staff housing; nor was staff housing provided as
a form of remuneration for their employment. It was only after appellants had
been on their jobs as correction officers that they became eligible to apply
for staff housing. Thus New York decisions relied upon by the district court
are not on point, since they all involve apartment superintendents whose jobs
required occupancy on the premises.
We conclude, therefore, that in the
context of a motion for summary judgment the record, viewed most favorably to
appellants, does not preclude a finding that they had a substantial tenancy
interest in their staff housing, and that they enjoyed significant privacy due
to their right to exclude others from what were functionally their homes… Accordingly,
since we cannot say that as a matter of law appellants were not entitled to the
protection of the Third Amendment, we reverse the summary dismissal of their
Third Amendment claim. (Engblom v.
Carey, 677 F.2d at 962-64).
B. Our Penumbral Rights under the Third
Amendment Provide Us with Fundamental Liberty Interests against the Occupation,
Intimidation, Domination by Military Forces
Under the reasoning
of Engblom, the crux of a Third Amendment
claim depends on whether the nature of
their property or privacy interest in their neighborhoods and residences is
sufficient to bring it within the ambit of the Third Amendment's proscription
against quartering troops “in any house, without the consent of the Owner.” The issue is whether a policeman in military
gear a soldier for purposes of the Third Amendment?; and, if so, then is his or
her presence in our neighborhoods and homes a violation of our fundamental
liberty interests.
Pursuant to the authorities cited and
for the reasons stated above, our penumbral rights under the Third Amendment
provide us with fundamental liberty interests against other forms of
governmental invasion. The occupation,
intimidation, domination by ‘military’ forces of any kind to include more
insidious forms of military occupation, featuring militarized and heavily-armed
police forces cowing civilians by psychological guerrilla warfare, day by day
and house by house and in the activities described in the reports of the ACLU,
HRW, and other documentary sources constitute governmental invasion of those
interests.
Hamilton forcefully affirmed in
Federalist No. 8 that the presence of a standing army / occupation can lead to
overdependence and subjugation. Once
this happens, our civil society is lost because “it is very difficult to prevail upon a people under such
impressions, to make a bold or effectual resistance to usurpations supported by
the military power.”
The object of the Third Amendment
is the protection of civil society from an overbearing military.
The Supreme Court has strongly
declared in Griswold and Katz, that the protection of civil
society from an overbearing military is a fundamental liberty interest that
falls within our penumbral rights under the U. S. Constitution. Thus the government may not violate such
liberty interest absent a compelling governmental interest and no other viable
alternatives exist.
As Senator Coburn noted an increasingly militarized police
force is hardly distinguishable from a standing army.
Moreover,
the issue of consent. The Third
Amendment also guards against unfettered executive action at federal level and
through the Fourteenth Amendment applies to the States.
Another important facet of the Third Amendment is that “the
amendment stands as an important reaffirmation of the separation of powers, and
limited executive authority… which often goes unnoticed because of our
modern-day fixation on individual rights.
To put the point a different way, the deep spirit of the Third Amendment
cautions skepticism about unilateral executive assertions of military
necessity. (Akhil Reed Amar, The Bill of
Rights, Yale University (1998), at 62).
We must not continue the militarization of our police forces. Our police forces are established to protect and serve, not to intimidate and oppress.
