“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.”
Yes, it’s really the Third Amendment. WTF is it doing here? Let me share my opinion about it.
I think that there is more Constitutional justification in questioning or even outright ending many if not all of the modern surveillance programs with the Third Amendment that you could use the entire rest of the document to justify them. The little it has been cited is entirely in line with my reasoning as I see it.
In GRISWOLD v.CONNECTICUT, JUSTICE DOUGLAS said, (in part)
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So lets look at the Third Amendment.
No soldier shall,
While the military may oversee and lend support to some of the named (and yet to be named) Intel gathering programs, even the NSA and other “civilian” agency’s are just the “intelligence” arm of the new Federal military of the DHS and they should be considered soldiers.
in time of peace be quartered in any house,
Our phones and laptops have become so much the center of our lives that many spend more time with them than they do in the bedroom and we use these as forms of communication for things most intimate to us. I should have the same ability to speak with my loved ones with the same intimacy over the phone that I do over the pillow. The fiction that just because I use a third party to facilitate one of those conversations I shouldn’t expect the same privacy and due process that protects me in the bedroom or the snail mail or a UPS package is absurd.
The fact that all of these surveillance programs are aimed at and for all intensive purposes are Quartered in the heart of our homes by way of our personal electronics is Prima facie against the Third Amendment.
without the consent of the owner,
All of these programs have been done with a minimum of public involvement and almost total secrecy and no one has ever had the chance to say “I want you to monitor all of my communications.” The nature of the abridgment of this right is such that the FedGov should need a positive affirmation from the individual in order to enact such an deep and intrusive abridgment of their Third Amendment right to privacy.
nor in time of war,
As I believe it stands right now, congress has not made any formal declaration of war against a definable target or group that would require the level of “exigent” circumstances seemed to be claimed that are “needed” to protect us. I would think that a formal declaration of war would only be one of the base conditions that might lead to such an over broad intrusion.
but in a manner to be prescribed by law.”
Even if you were to meet a “Time, Place and Manor” type test, none of the surveillance programs have a basis in a law that I can see, they are all just “justified” by an mainly administrative interpretation of laws. If these things are going to be enacted, they need to be passed and codified in to law just like the rest of them are, in open session, live on cspan. Much of what is happening is clearly proscribed by the Constitution let alone be condoned by it.
Do I think this is the end all and be all argument to it? No, of course not, nothing is that simple. Do you think that you have found some flaw in the logic, sure I bet you have and I’m always open to changing my reasoning based on logic and common sense, this is just a place to start.
This article originally published on FetLife and is republished here with the consent of the author.