- - Monday, December 12, 2016

Could you pick the Third Amendment out of a lineup? You might be forgiven for not recognizing it.

The Third Amendment has no corporate sponsors. Its meaning is not the subject of vigorous congressional debates. Yet it is not difficult to find. If you point your nose between the National Rifle Association billboard slogan and William O. Douglas’ penumbras and emanations, you will run smack into the Third Amendment.

A short, modest constitutional provision, the Third Amendment states, “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.”

Perhaps it is so little known because it has enjoyed unbroken success. Americans safely assume that, although Grandma or Uncle Joe might show up uninvited during the holidays expecting to occupy the spare bedroom, members of the 82nd Airborne Division will not.

The Third Amendment is a model security for ordered liberty in a skeptical age such as ours.

Today cultural and governing elites exploit every ambiguity in the meaning of rights that the Constitution does declare, such as private property and the right to bear arms. And they read into indeterminate constitutional provisions “rights” that have no grounding in the Constitution at all. The structure and nature of the Third Amendment discourages such adventures against ordered liberty in two ways.

First, it is grounded in a tradition that ties liberty to obligation. The liberty secured by the Third Amendment was not invented by the Amendment’s drafters. Instead, like the other rights declared in the text of the Bill of Rights, the Third Amendment is deeply rooted in America’s identity and jurisprudential commitments. Together with the Second and Fourth, it declares and codifies a cluster of ancient, common law liberties and obligations designed to preserve the sanctity of the home.

Historically, these included the customary rights and duties of the citizen militia to bear arms and defend the homeland, and the corresponding duty of the king not to maintain a standing army. (Suspicion of standing armies has since waned, but the duty not to quarter them in homes has not.) This arrangement meant that every household had soldiers in it that had men in it. But the soldiers were not rowdy young men from distant lands given to raping and pillaging. Instead, they were the husbands, fathers and brothers of those within the home, motivated to fend off foreign enemies by love of what lay behind them.

Englishmen and colonists of British North America alike held dear the sanctity of the home and the customary liberties that secured it. Antecedents to the Third Amendment can be found in British constitutional landmarks, such as the Petition of Right submitted to Charles I. Yet Americans valued this liberty so highly that they invoked its infringement by George III as a cause of their political separation from Britain.

Second, the Third Amendment does not state an abstract right that is subject to qualification and curtailment. Instead, it identifies and imposes on government concrete, fully determined duties. The complaint in the Declaration of Independence that the king was “quartering large bodies of armed troops among us” is not that the king deprived the colonists of a speculative property right. Rather, the king breached a particular constitutional duty. That duty is given greater specification in the Third Amendment, which distinguishes between peacetime and wartime, and limits exercise of the war power within the rule of law.

Ordered liberty exists only where the rulers are constrained. That government has duties of abstention is why people enjoy liberty. Yet the government will abstain only where the people lawfully exercise self-governance. Those who ratified the Third Amendment understood that duty is inherently tied up with liberty. Sustainable liberty — the ordered liberty that arises out of virtuous self-governance — begins not with an assertion of abstract right but rather with a commitment to govern ourselves, lest government have cause to arrogate power over us.

Adam J. MacLeod, J.D., is associate professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press, 2015) and co-editor of “Foundations of Law” (Carolina Academic Press, 2017).

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