One of the underlying brouhahas during the Black Lives Matter protests in Washington, D.C. is the D.C. mayor’s fight with President Trump over where the federal government has housed National Guard troops and other elements of the U.S. military during his response to the protests and riots. Leaving aside the question of the fact that the Third Amendment’s prohibition against troop quartering can only be invoked by private property owners, the scuffle presents an interesting question for future debate.
May the federal government invoke the Takings Clause of the Fifth Amendment to circumvent the Third Amendment?
Even if I started with a blank slate, I would find the question less than straightforward, but I would ultimately use the Latin maxim “generalia specialibus non derogant” (“General things do not derogate from specific things”) , or the general/specific canon, to answer no. The Third Amendment is specific in its absolute prohibition against quartering in times of peace with the only permissible exception being if the owner consents.
The current state of the law, however, is no blank slate, and the Supreme Court has made no effort to define the meaning of “public use” in the Fifth Amendment in a way that constrains the government. In short, the government does not need a legitimate purpose to take your property under the current state of the law. It can take it for any reason that it can imagine, and it merely needs to provide just compensation if you’re lucky.
The Third Amendment has received virtually no attention in American constitutional jurisprudence. The Supreme Court has only referenced it in dicta or non-controlling opinions – Justice Jackson in a concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1965) and Justice William Douglas in his majority opinion in Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Both Justices Douglas and Jackson did not embark on extensive discussions of the Third Amendment with Jackson merely citing it and writing a general view and Douglas including it as an example in his “emanating from the penumbras” formulation of privacy rights.
Looking through circuit and district court opinions, I only found two other cases addressing the Third Amendment that were non-frivolous: Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) and Mitchell v. City of Henderson, No. No. 2:13–cv–01154 (D. Nev. Feb. 2, 2015). Of those two decisions, Engblom is the only one that gives any attention to the meaning and application of the Third Amendment. Mitchell merely dismissed a Third Amendment claim on the grounds that police officers are not soldiers within the meaning of the Third Amendment.
Engblom concerned state-provided housing on prison grounds for New York correctional officers. When the officers went on strike, the New York correctional superintendent locked the officers out of their housing and quartered National Guard troops in their houses while the soldiers performed the officers’ duties. The Second Circuit held, in the context of a summary judgment motion, that the Third Amendment prohibited the quartering of National Guard troops on the correctional officers’ houses. However, the Second Circuit did not discuss the meaning of the Third Amendment at length nor does the state appear to have attempted to raise a Fifth Amendment argument.
As of today, the Second Circuit is the only jurisdiction in the United States that has incorporated, or applied, the Third Amendment against the states, and there are no cases where it has been raised against or applied to the federal government although it undoubtedly does. That leaves the playing field wide open and creates an interesting interaction between certain words and provisions of the Constitution.
The first proposition is that, since the Supreme Court has established no limits on the term “public use” or on eminent domain in general, the federal government could just take the hotels to house the troops, compensate the owners, and do what they wish with the hotels – all under the guise of its general Fifth Amendment power. Furthermore, the federal government wouldn’t even need to keep the hotels or sell the hotels. It could use them and then give them back to the owners to mitigate the compensation that they would have to pay out. It certainly wouldn’t pass yours or my sniff test under the Third Amendment and the general/specific canon, but I could see a few overthinking judges buying into it.
Second, assuming that there is no question that President Trump had the authority to call up the National Guard under the Insurrection Act and Articles I & II, President Trump and the federal government in general over the past century have shown a willingness to call anything and everything a war. We have the war on poverty, the war on drugs, the war on terror, and, most recently, the war on coronavirus. What’s to keep President Trump and the federal government from declaring war on looters, pillagers, and rioters?
He’d argue thus. Looters, pillagers, and rioters have engaged in armed and violent resistance/war on the United States. Since Article I essentially treats insurrections in the same manner that it does war, the Third Amendment allows the federal government to quarter troops on houses during a time of war/insurrection without consent as long as it does in a manner prescribed by law. Consequently, the Fifth Amendment is the manner prescribed by law and allows quartering by virtue of a temporary, or even a more permanent, taking for public use.
I would not buy the argument if I was a judge, and I would require a separate process under the Third Amendment specifically designed for quartering. However, it would be a non-frivolous argument that would require me to think long and hard on how to best rebut it.
The incredible uncertainty surrounding the Third Amendment’s protections shows that more scholarship is needed on its original meaning and how it might interact with other provisions of the Constitution. Perhaps I will contribute when my schedule clears after the bar exam.