The Third Amendment in 2020

I recently posted a working version of a short article I'm writing to SSRN. It is meant to be the first in a yearly series of articles on the Third Amendment. This article surveys how the Third Amendment was cited and referenced in 2020--from cases and Third Amendment claims by litigants, to citations in academic legal writing. It also addresses popular coverage of the Third Amendment, which was surprisingly active in 2020.

The abstract is below:

This Article is the first in a series of yearly articles analyzing references, discussion, and applications of the Third Amendment in court, legal scholarship, and popular media and commentary. The Third Amendment’s prohibition on the quartering of soldiers in houses during peacetime, and its requirement that quartering during times of war be authorized by law is not typically discussed (or even known) by most in the legal field. This Article and its future iterations aim to address this neglect by surveying references to the Third Amendment and noting trends in its invocation and discussion across all aspects of the legal field.

As it turns out, the Third Amendment had a bit of a moment in 2020, drawing brief but widespread public attention in early June. A dispute between the mayor of Washington, DC and National Guard soldiers over whether they could be housed in a particular hotel led to a great deal of speculation over whether the Third Amendment would be invoked and, if so, whether it would apply to the dispute. While no litigation ended up taking place, this incident brought more attention than usual to this neglected component of the Bill of Rights. This Article describes the dispute, surveys the commentary, and evaluates whether a Third Amendment claim could have even been made in the first place.

Beyond this, the Article surveys citations and trends in arguments invoking the Third Amendment in 2020 case law and legal scholarship. The Third Amendment’s restrictions on the practice are often cited to demonstrate a constitutional right to privacy and to substantiate claims that the Constitution and its Bill of Rights were designed to protect civilians against overbearing military and governmental authority. Additionally, it tends to be a go-to citation for litigants who claim that their rights were violated and who want to throw every argument they have at the court. This Article provides a comprehensive breakdown of Third Amendment citations in the case law, and evaluates arguments invoking the Third Amendment in 2020 legal scholarship.

While the Third Amendment doesn’t get the respect or attention given to adjacent amendments, this Article serves as a first step toward a systematic understanding of the Third Amendment’s role in case law, legal scholarship, and broader society.

I've written about the Third Amendment here several times in the past--most recently last summer. In prior years, I took a critical approach towards scholarship on the Third Amendment and evaluated whether such scholarship was worth publishing. 

Now, nearly eight years later, I think there's a place for Third Amendment scholarship. Writers should take a subtle approach and see what lessons about broader issues and practices can be drawn from patterns of Third Amendment citation and use. Stretching the Third Amendment beyond its breaking point to apply it to situations is not the way to breathe life back into the amendment--even if the argument turns out to be novel.

The article is still a draft, so any comments or feedback are welcome.

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