The Third Amend­ment: A ne­glected mea­sure for a skep­ti­cal age

The Washington Times Daily - - CELEBRATING FREEDOM - By Adam J. Ma­cLeod Adam J. Ma­cLeod, J.D., is as­so­ci­ate pro­fes­sor at Faulkner Univer­sity, Jones School of Law. He is the au­thor of “Prop­erty and Prac­ti­cal Rea­son” (Cam­bridge Univer­sity Press, 2015) and co-ed­i­tor of “Foun­da­tions of Law” (Carolina Aca­demic P

Could you pick the Third Amend­ment out of a lineup? You might be for­given for not rec­og­niz­ing it. The Third Amend­ment has no cor­po­rate spon­sors. Its mean­ing is not the sub­ject of vig­or­ous con­gres­sional de­bates. Yet it is not dif­fi­cult to find. If you point your nose be­tween the Na­tional Ri­fle As­so­ci­a­tion bill­board slo­gan and Wil­liam O. Dou­glas’ penum­bras and em­a­na­tions, you will run smack into the Third Amend­ment.

A short, mod­est con­sti­tu­tional pro­vi­sion, the Third Amend­ment states, “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.”

Per­haps it is so lit­tle known be­cause it has en­joyed un­bro­ken suc­cess. Amer­i­cans safely as­sume that, although Grandma or Un­cle Joe might show up un­in­vited dur­ing the hol­i­days ex­pect­ing to oc­cupy the spare bed­room, mem­bers of the 82nd Air­borne Divi­sion will not.

The Third Amend­ment is a model se­cu­rity for or­dered lib­erty in a skep­ti­cal age such as ours.

To­day cul­tural and gov­ern­ing elites ex­ploit ev­ery am­bi­gu­ity in the mean­ing of rights that the Con­sti­tu­tion does de­clare, such as pri­vate prop­erty and the right to bear arms. And they read into in­de­ter­mi­nate con­sti­tu­tional pro­vi­sions “rights” that have no ground­ing in the Con­sti­tu­tion at all. The struc­ture and na­ture of the Third Amend­ment dis­cour­ages such ad­ven­tures against or­dered lib­erty in two ways.

First, it is grounded in a tra­di­tion that ties lib­erty to obli­ga­tion. The lib­erty se­cured by the Third Amend­ment was not in­vented by the Amend­ment’s drafters. In­stead, like the other rights de­clared in the text of the Bill of Rights, the Third Amend­ment is deeply rooted in Amer­ica’s iden­tity and ju­rispru­den­tial com­mit­ments. To­gether with the Sec­ond and Fourth, it de­clares and cod­i­fies a clus­ter of an­cient, com­mon law lib­er­ties and obli­ga­tions de­signed to pre­serve the sanc­tity of the home.

His­tor­i­cally, these in­cluded the cus­tom­ary rights and du­ties of the ci­ti­zen mili­tia to bear arms and de­fend the home­land, and the cor­re­spond­ing duty of the king not to main­tain a stand­ing army. (Sus­pi­cion of stand­ing armies has since waned, but the duty not to quar­ter them in homes has not.) This ar­range­ment meant that ev­ery house­hold had sol­diers in it that had men in it. But the sol­diers were not rowdy young men from dis­tant lands given to rap­ing and pil­lag­ing. In­stead, they were the hus­bands, fa­thers and brothers of those within the home, mo­ti­vated to fend off for­eign en­e­mies by love of what lay be­hind them.

English­men and colonists of Bri­tish North Amer­ica alike held dear the sanc­tity of the home and the cus­tom­ary lib­er­ties that se­cured it. An­tecedents to the Third Amend­ment can be found in Bri­tish con­sti­tu­tional land­marks, such as the Pe­ti­tion of Right sub­mit­ted to Charles I. Yet Amer­i­cans val­ued this lib­erty so highly that they in­voked its in­fringe­ment by Ge­orge III as a cause of their po­lit­i­cal sep­a­ra­tion from Bri­tain.

Sec­ond, the Third Amend­ment does not state an ab­stract right that is sub­ject to qual­i­fi­ca­tion and cur­tail­ment. In­stead, it iden­ti­fies and im­poses on gov­ern­ment con­crete, fully de­ter­mined du­ties. The com­plaint in the Dec­la­ra­tion of In­de­pen­dence that the king was “quar­ter­ing large bod­ies of armed troops among us” is not that the king de­prived the colonists of a spec­u­la­tive prop­erty right. Rather, the king breached a par­tic­u­lar con­sti­tu­tional duty. That duty is given greater spec­i­fi­ca­tion in the Third Amend­ment, which dis­tin­guishes be­tween peace­time and wartime, and lim­its ex­er­cise of the war power within the rule of law.

Or­dered lib­erty ex­ists only where the rulers are con­strained. That gov­ern­ment has du­ties of ab­sten­tion is why peo­ple en­joy lib­erty. Yet the gov­ern­ment will ab­stain only where the peo­ple law­fully ex­er­cise self­gov­er­nance. Those who rat­i­fied the Third Amend­ment un­der­stood that duty is in­her­ently tied up with lib­erty.

Per­haps [the Third Amend­ment] is so lit­tle known be­cause it has en­joyed un­bro­ken suc­cess. Amer­i­cans safely as­sume that, although Grandma or Un­cle Joe might show up un­in­vited dur­ing the hol­i­days ex­pect­ing to oc­cupy the spare bed­room, mem­bers of the 82nd Air­borne Divi­sion will not.

Sus­tain­able lib­erty — the or­dered lib­erty that arises out of vir­tu­ous self­gov­er­nance — be­gins not with an as­ser­tion of ab­stract right but rather with a com­mit­ment to govern our­selves, lest gov­ern­ment have cause to ar­ro­gate power over us.

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