An Unavoidably Brief Historiography of the Third Amendment

by Scott D. Gerber

The U.S. Supreme Court has never decided a case on Third Amendment grounds. The closest the Court came was Griswold v. Connecticut, in which Justice William O. Douglas’s majority opinion included the Third Amendment among the provisions of the Bill of Rights whose penumbras identified a constitutional right to privacy. A 1982 decision by the U.S. Court of Appeals for the Second Circuit is the lone major decision about the Third Amendment issued by a federal court. The scholarship about the Third Amendment is equally sparse. Indeed, it is not too much of an exaggeration to say that more was written about the First Amendment last week than has ever been written about the Third Amendment. At my count, as of September 2014, only three books—all children’s books at that—six book chapters, and seventeen law review articles have been authored about the Third Amendment. Of the seventeen law review articles, nine were penned as student notes or as first articles by recent law school graduates.

The purpose of this Article is to provide a historiography of the existing scholarship about the Third Amendment. As the Article’s title indicates, the historiography will be unavoidably brief, which, if nothing else, is a testament to the importance of this symposium about the Third Amendment sponsored by the Tennessee Law Review. I will conclude the Article with a few thoughts of my own about the significance of the Third Amendment for American constitutionalism.

 

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