The Odd Clauses (25 page)

Unfortunately for the Third Amendment, no court has yet seen fit to apply the clause to anything beyond the straightforward quartering of troops in private homes. Perhaps this is because the language of the clause is so very specific, or perhaps it is because the Fourth Amendment, with its prohibition of unreasonable searches and seizures, already covers the kinds of things that courts might have extended the Third Amendment to cover. Or, then again, perhaps it is because nobody has ever made a plausible creative argument before a court on behalf of the beleaguered amendment. On this latter point, however, some scholars have at least tried to come up with something to resurrect the clause, even if these theories have thus far merely graced the pages of academic journals rather than court documents.

One spirited writer, for example, has argued that the Third Amendment stands for the principle that civil power should always be superior to military power in times of peace. He writes: “The Third Amendment establishes an explicit limit to the military's power, vesting a right in the individual that, at least textually, appears to be absolute in times of peace. In this sense, the Third Amendment stands alone as a constitutional provision that reflects the judgment
that at least one peacetime right will always trump military necessity no matter what form it takes.” The writer goes on to argue that the Third Amendment, interpreted in this broad fashion, prohibited the federal government from requiring private universities to allow the military, with its “don't ask, don't tell” policy for gays and lesbians, access to campuses for recruiting purposes, if the universities wanted to continue to receive certain federal funds. Similarly, another writer has argued that the Third Amendment establishes “a categorical ban on soldiers enforcing law against civilians in all areas in which private citizens may exclude others.” Applying this principle, the author argues that the amendment places substantial limits on the federal government's power to intercept through wiretapping the “communications of individuals living in the United States.” According to this theory, officials of the National Security Agency are “soldiers,” and their wiretapping counts as “quartering.” Finally, two professors have argued in a prominent environmental law journal that the Endangered Species Act, by requiring private landowners to “quarter” endangered species on their property, violates the Third Amendment. It turns out, however, that the article is a forty-one-page satire that pokes fun both at the act and the method of constitutional interpretation that would extend constitutional provisions beyond their plain language.

The other way, of course, that the Third Amendment might rise to prominence is if our current, relatively peaceful situation here in the United States were to change radically. In some new, highly dangerous situation, one could easily imagine circumstances under which the military might find it advantageous to quarter its troops in private homes. Peggy Noonan's hypothetical that started the chapter (and my lefty permutation of her scenario) is one example, but hardly the only one. Noonan herself, for instance, suggests one more: “Suppose that down the road there is a nuclear or biological or chemical incident in, say, downtown Manhattan. The
island is quarantined; in time there is civil unrest; in time the 101st Airborne comes in to restore the peace. Where do they live in this chaotic and uncontrolled environment as they realize they must occupy the island? Perhaps among the people. The government condemns their property and seizes it.” I'm sure you can think of others. The world is filled with dangers—not just terrorism and civil unrest but also diseases, plagues, chemical explosions, earthquakes, tidal waves, killer bees, and who knows what else—all of which could lead to the military playing a more involved role in the daily life of citizens. If there's no clear place where the soldiers would obviously stay (particularly possible if, for instance, an earthquake has knocked down the obvious place, or if killer bees have already taken up residence there), then the issue of quartering troops in private homes becomes a distinct possibility.

The notion that the military might want to house troops in private homes during times of crisis, rather than in times of outright war, raises some interesting legal issues. Indeed, although Noonan implies with her hypothetical that the Third Amendment would save homeowners from forced quartering in the case of civil rebellion, it is not entirely clear that that's the case. Look at the specific language of the Third Amendment. In “time of peace,” quartering is unconstitutional unless the owner consents. In “time of war,” however, quartering is unconstitutional unless done “in a manner to be prescribed by law,” which means that if we are in a time of war, Congress can pass a law authorizing the quartering of troops. But what counts as a “time of war”? Does the “war” referred to in the Third Amendment mean only “war” declared by Congress under Article I—something we saw in chapter 7 that has only happened five times in history? Or might it also apply to something short of formally declared “war,” and if so, what? Moreover, if “war” does mean only formally declared war, then what happens if there's no formal
declaration of war but we're not in a time of peace, either? Since the amendment seems silent on that question, might the president be allowed to order quartering under those circumstances? Perhaps someday a scenario like Noonan's will arise and the Supreme Court will be called on to decide these issues. It would be a fascinating constitutional case, but let's hope it never comes to that.

So, the Third Amendment? It's probably the clause in the Constitution that people make fun of the most (the slavery portions are too distressing to make real fun of), but is it really a constitutional dodo bird? Maybe, as I've suggested, it's better to think of it as plankton. Or perhaps, as Noonan reminds us, the Third Amendment could turn out to be a coelacanth. The coelacanth is a huge bottom-dwelling fish with a teeny-tiny brain that looks kind of like a science fiction monster and that was extremely common hundreds of millions of years ago. Having never seen a live one before, scientists had long thought coelacanths had gone extinct along with the dinosaurs at the end of the Cretaceous period, but then a museum curator discovered one swimming near the Chalumna River off the South African coast in 1938. Since then, coelacanths have been found as far away from Africa as Saint Lucia and Indonesia.

One of the best quotes I found while doing research on this book comes from a judge on the Sixth Circuit Court of Appeals named Martha Craig Daughtrey, who, in a dissent responding to the court majority's argument that some provision of the tax code was unimportant because the IRS hadn't litigated a case involving it in the twenty-two years since it was enacted, made this point about the completely unrelated Third Amendment:

Clearly, such a lack of litigation bears no necessary correlation to the importance of the subject matter. As recognized by our sister circuit, for example, in the 216 years since the adoption of the Third Amendment to the United States Constitution, “[j]udicial interpretation of [that provision] is nearly nonexistent.” . . . The Third Amendment's prohibition on the quartering of soldiers in private residences without consent is, however, one of the constitutional bulwarks protecting privacy rights inherent in American citizenship. Especially in this time of seemingly unfettered governmental efforts to intrude into private realms, I would hope that the majority would not equate the “nearly nonexistent” litigation involving the Third Amendment with a lack of importance of the principles protected by that provision.

Judge Daughtrey's point about the Third Amendment not being irrelevant just because it never gets litigated is broadly relevant to the odd clauses that I've discussed in this book. These clauses rarely make it anywhere near a courtroom. As Judge Daughtrey suggests, though, you can't always judge a provision by its visibility. The Constitution's odd clauses—whether they are giving power to the three branches of government or keeping the branches separate or protecting the liberty, privacy, and equality of the citizens governed by those branches—are well worth our attention, even if hardly anybody has ever heard of them, until now.

Okay, the constitutional zoo is now getting ready to close. Thank you so much for coming. Please exit through the gift shop.

I would like to thank the faculties at the Boston University School of Law, the Saint Louis University School of Law, and the University of Colorado School of Law for helpful discussions about this book and comments on drafts of various chapters, as well as the following supergreat individuals who helped me so much and without whom this book would not exist: Helene Atwan, Mark Dahl, Ellen Geiger, Carlos Maycotte, Michael O'Malley, Maureen O'Rourke, Karen Tokos, Caitlin Meyer, Allison Trzop, Paz Valencia, Fred Wexler, Mary Wexler, and Walter Wexler.

For general reading about the Constitution, I recommend the following: Akhil Reed Amar,
America's Constitution: A Biography
(New York: Random House, 2006); Akhil Reed Amar,
The Bill of Rights: Creation and Reconstruction
(New Haven, CT: Yale University Press, 1998); Erwin Chemerinsky,
Constitutional Law: Principles and Policies
(New York: Aspen, 2006); and Laurence H. Tribe,
American Constitutional Law,
3rd ed. (New York: Foundation, 2000).

The best overall account of the incompatibility clause is Steven G. Calabresi and Joan L. Larsen, “One Person, One Office: Separation of Powers or Separation of Personnel?”
Cornell Law Review
79, no. 5 (1994): 1045–1157. For a nice description and defense of separation of powers generally, check out Martin H. Redish and Elizabeth J. Cisar, “ ‘If Angels Were to Govern': The Need for Pragmatic Formalism in Separation of Powers Theory,”
Duke Law Journal
41, no. 3 (1991): 449–506. To see what the framers had to say about separation of powers, one good place to look is
The Federalist Papers,
especially nos. 47, 48, and 51. The case where the Court held that Congress could not reserve to itself the right to veto the president's firing of an executive officer is Myers v. United
States, 272 U.S. 52 (1926). The case where the Court approved of a statute creating the independent counsel is Morrison v. Olson, 487 U.S. 654 (1988). The phrase “bankrupts, bullies, and blockheads,” is reported from Calabresi and Larsen's “One Person, One Office,” p. 1057, which itself quotes from the classic historical work Gordon S. Wood,
The Creation of the American Republic, 1776–1787
(1969), which in turn quotes a March 26, 1778, issue of the
Boston Independent Chronicle.
For the debate over whether the president must step down from a congressional seat upon taking the oath of office, see the following: Seth Barrett Tillman, “Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause,”
Duke Journal of Constitutional Law & Public Policy
4 (2009): 107–41; Saikrishna Bangalore Prakash, “Why the Incompatibility Clause Applies to the Office of the President,”
Duke Journal of Constitutional Law & Public Policy
4 (2009): 143–51. For the lower federal-court case on the military reservists, see Reservists Committee to Stop War v. Laird, 323 F. Supp 833 (1971). For the Supreme Court case, see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). For historical discussions of the executive branch's meandering interpretation of the ineligibility clause, see Daniel H. Pollitt, “Senator/Attorney-General Saxbe and the ‘Ineligibility Clause' of the Constitution: An Encroachment Upon Separation of Powers,”
North Carolina Law Review
53, no. 1 (1974): 111–33, and Michael Stokes Paulsen, “Is Lloyd Bentsen Unconstitutional?”
Stanford Law Review
46, no. 4 (1994): 907–18. For the last two OLC opinions on the ineligibility clause, see Memorandum Opinion for the Attorney General from David J. Barron, Acting Assistant Attorney General, “Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause,” May 20, 2009, available on the Web site of the Office of Legal Counsel,
www.justice.gov/olc/
. The Cooper memorandum on Orrin Hatch had not previously been released until the release of the May 2009 memorandum, although at least one scholar—Michael Paulsen, whose aforementioned piece on Lloyd Bentsen is a fascinating and entertaining read that I rely on for the story about Bork, Hatch, and Kennedy—had suspected that such a memorandum existed. Paulsen speculates that if it weren't for the Reagan administration's
strict adherence to the text of the ineligibility clause, perhaps
Roe v. Wade
might have been overruled, since it is unlikely that Orrin Hatch would have joined any sort of opinion upholding the earlier case, as Justice Anthony Kennedy did in the case
Planned Parenthood v. Casey
in 1992. The two commentators who think the incompatibility clause is responsible for keeping our government from becoming parliamentary-like are Calabresi and Larsen, cited above. To read the views of the separation-of-powers critics, see Donald L. Robinson, ed.,
Reforming American Government: The Bicentennial Papers of the Committee on the Constitutional System
(Boulder, CO: Westview, 1985). To read an excellent critique of these views, see Thomas O. Sargentich, “The Limits of the Parliamentary Critique of the Separation of Powers,”
William and Mary Law Review
34, no. 3 (1993): 679–739.

On the Mars climate orbiter fiasco, see the following: John Noble Wilford, “Mars Orbiting Craft Presumed Destroyed by Navigation Error,”
New York Times,
September 24, 1999; Andrew Pollack, “Two Teams, Two Measures Equaled One Lost Spacecraft,”
New York Times,
October 1, 1999. The case involving the California toad is Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (DC Circuit 2003). The citation for
Lopez
is 514 U.S. 549 (1995). The Violence Against Women Act case is United States v. Morrison, 529 U.S. 598 (2000). The case involving medical marijuana is Gonzalez v. Raich, 545 U.S. 1 (2005). The article that suggests Congress had exercised all of its powers before it ever exercised its weights and measures power is David P. Currie, “Weights and Measures,”
Green Bag
2, no. 3 (1999): 261–66. This article also discusses the early history of the weights and measures clause, including the various commissioned reports of Jefferson and Adams. The report of the academic committee from New York, which includes Adams's famous report, is Charles L. Davies,
The Metric System, Considered with Reference to Its Introduction into the United States; Embracing the Reports of the Hon. John Quincy Adams, and the Lecture of Sir John Herschel
(New York and Chicago: A. S. Barnes & Co., 1871). For the story about how the official kilogram is shedding a tiny
bit of its weight every year, see Otto Pohl, “Scientists Struggling to Make the Kilogram Right Again,”
New York Times,
May 27, 2003. For a history of the United States Metric Board, see United States Metric Association,
History of the United States Metric Board,
http://lamar.colostate.edu/~hillger/laws/usmb.html
. Also see David Bjerklie, “What Ever Happened to Metric?”
Time,
July 6, 1987. For the most recent case on the “intelligible principle” doctrine, see Whitman v. American Trucking Association, 531 U.S. 457 (2001). For Mankiewicz's account of his conspiracy with Nofziger to get rid of the Metric Board, see Frank Mankiewicz, “Nofziger: A Friend with Whom It Was a Pleasure to Disagree,”
Washington Post,
March 29, 2006.