A Word on the Third: Three Approaches to the Third Amendment’s Place in Constitutional Rhetoric

by Gabriel Latner

Substantively? Nothing. The Third Amendment is about as relevant or useful as an umbrella in Death Valley. It is the Constitution’s appendix. Like that vestigial organ, the Third Amendment is obsolete and redundant. Adopted in response to egregious abuses of governmental power, it once served a vital purpose, but it simply isn’t needed any more. America is no longer the vulnerable, sparsely populated country surrounded by land-based enemies it was at birth. It has grown, and grown, and grown, becoming the last true superpower. Cities and villages no longer need to host and support militias to defend against invasion, a threat now deemed so remote that patrolling the border is left to a civilian law enforcement agency barely capable of repelling desperate migrants, let alone armies. Even if America was invaded, the idea that its military would either need or want to barrack soldiers in private homes is ridiculous. The modern American military is a professional force designed to fight multiple wars simultaneously, and redeploy at the drop of a hat. It fields supercarriers, mobile command centers, and special operations groups that are capable of projecting crushing force into the most remote regions on Earth. All this in addition to the roughly 1,000,000 troops housed at any given time in bases scattered across the country—bases operating at less than their full capacity. Excise the Third Amendment and other constitutional provisions (particularly the Fourth and Fifth Amendments) would still provide substantial protection against forced quartering. Basically, arguing that the Third Amendment is all that’s stopping the 101st Airborne from bivouacking in guestrooms across the nation is a product of the same sort of delusional paranoia that afflicts birthers and sovereign citizens.

So does it still have any value? Possibly. Outside of digestive tracts, an appendix can occasionally be spotted at the back of a book or brief—additional material thrown in by the author to explain or add value to the main text. The Third Amendment’s value as a literary appendix to the Constitution needs to be judged by the standard lawyers use to evaluate any potential source: is there something in here that can help me win an argument?

There is a perpetual argument in American constitutional law between those we might caricaturize respectively as “Absolutists” and “Pragmatists.” Every argument about the scope of a fundamental right’s protections, be it in the form of a case or an academic disputation, is at some level a debate about the very nature of the rights protected by the Constitution. The Absolutists believe those rights to be without significant limitation: a problem that can’t be solved without restricting a right is not a problem that can be solved by the government. The Pragmatists, as their name suggests, take a more goal-oriented approach. The fact that the democratically elected government has judged it necessary to restrict a right is in and of itself sufficient justification for that restriction¾otherwise, the government would be unable to function. The debate between Absolutists and Pragmatists is not only a (if not the) central conflict of American constitutional law, it is also a uniquely American one, which other liberal democracies have preempted by including in their constitutional documents language like Section 1 of the Canadian Charter, the European Convention on Human Rights’ Article 10, and Germany’s Grundgesetz, which expressly limit the rights protected, and establish standards for their curtailment. Deprived of an official answer putting the question beyond debate, American advocates and theorists have spent the last dozen or so decades happily (if not productively) coming up with arguments.

In the context of the First Amendment, the Absolutist position is famously represented by Justice Black’s argument that the authors of the Bill of Rights were “able men” who knew exactly what they were doing when they adopted unequivocal language forbidding the government from limiting free speech. “No law abridging” means “no law abridging,” and with those words the First Amendment “fixed its own value on freedom of speech and press by putting these freedoms wholly ‘beyond the reach’ of federal power to abridge.” This prompted a Pragmatic response from Solicitor General Erwin Griswold: it is “obvious that ‘no law’ does not mean ‘no law,’ . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the [Government], and . . . the First Amendment was not intended to make it impossible for the [Government] to function or to protect the security of the United States.”

To summarize, the text of the Constitution unambiguously forbids the government from limiting speech, but only an idiot thinks that it would be unconstitutional for the government to criminalize communicating classified information to enemy combatants. This is more or less the pattern that the argument takes: Absolutists focus on the unequivocal wording of the text, while Pragmatists appeal to common sense (“the Constitution is not a suicide pact”), and to historical precedent (the practice of pretty much every President and Congress, as ratified by the Supreme Court, over the last 200 years). The Supreme Court has embraced neither view, opting for an ill-defined mid-ground of its own devising, represented by tiered scrutiny and the myriad other right-specific balancing tests.

If the Third-Amendment-as-appendix has any rhetorical value, it ought to add something to these arguments. Rather than submitting a paper making an actual claim about the Third Amendment’s impact on the broader constitutional debate (an unappetizing project in that it would require me to a) pick a side, b) do actual research, and c) greatly exceed the word limit), I’ve opted instead to offer sketches of three arguments that the Third Amendment could be made to support—one for the Absolutists, one for the Pragmatists, and one for those who find themselves in the disputed middle.

 

To read the full text please visit our Subscriptions page or one of the links below:

99b7a752_WestlawNext_logo            lexis