7. Your Right against the Quartering of Troops. **
The Third Amendment provides what I call one of your "kitchen sink" rights in the Constitution of the United States.
"Kitchen sink" rights are real, but the only time you hear about them us when lawyers have no facts on their side . . . when lawyers have no laws on their side . . . and so they throw everything including the kitchen sink into their court papers.
The Third Amendment was included in the Bill of Rights because of a very real problem that had angered the Framers of the Constitution.
A QUICK HISTORY OF TRIGGERS TO THE AMERICAN REVOLUTION
Before the French and Indian War of 1734-1763, England imposed few taxes on the American Colonies, But to pay for the nine-year war and the continued basing of British troops in the colony, Parliament began to impose taxes
First, the Crown issued the Proclamation of 1763 to seize the revenues from the fur trade dominated by the Indian tribes who had been allied with the French. The colonists were forbidden from moving west from the coast. The Crown granted ownership of the inland territory to the tribes and put up forts to protect the tribal land. Finally, the Proclamation declared that the colonists would be required to pay for the defense of the tribal lands to protect the Indians from the colonists.
The first two sets of taxes followed in 1764. The Sugar Act instituted new taxes on molasses and many other imports, while simultaneously slashing the colonies' exports of lumber, iron and rum. The Currency Act crippled colonial exports further by eliminating the colonies' paper money that was needed to pay for trade with other countries. It also subjected colonists to a new Admiralty Court which always favored the Crown in actions against colonists.
In 1765, the Quartering Act required the colonists to provide quarters, food, alcohol, vinegar, and candles to British soldiers who were helping to collect the new taxes. The soldiers were to be quartered in uninhabited houses, so they forced unhappy colonists from their homes. In Philadelphia, the soldiers cut holes in the floors of houses to act as indoor "privies" which made the houses uninhabitable after the soldiers left. In Boston, the soldiers set up camps on the Commons directly across from the homes of unhappy colonists.
That same week, the Stamp Act imposed 55 new taxes on all papers, newspapers, pamphlets, books such as almanacs, decks of cards, dice, and other products that enabled foreign trade, court proceedings, and games in the colonies.
These taxes and oppressions led several colonial legislatures to declare that no royal taxes could be collected in the colonies without the consent of the local legislatures. Smugglers tried to restore international trade and were repressed by the Royal Navy. Patrick Henry gave his "If this be treason, make the most of it" speech in Virginia in 1765.
This led to Parliament to pass the Declaratory Act of 1766, which stripped the colonial legislatures of their powers.
The Townshend Act of 1767 imposed new taxes on tea, glass, paint, and other products.
In 1768, further crackdowns on smuggling to yield more taxes on imports led to the seizure of John Hancock's ship and cargo led to an open rebellion against British troops in Boston. British troops were sailed into Boston from England and Nova Scotia. These troops were also quartered near the unhappy colonists. The merchants of Boston declared a united boycott on the purchase or import of any goods from Britain.
After two years of collapsing exports, heavy taxes, stilted courts, silenced colonial legislatures, seized cargoes, and the quartering of British soldiers in their homes and on the Boston Commons, a crowd gathered to throw snowballs at the British troops in 1770. The soldiers fired into the crowd, killing a black sailor named Crispus Attucks and four others. Future President John Adams later defended successfully the British troops at a trial for the Boston Massacre. But the winds of war continued to gather.
In 1773, the Tea Act granted one company s monopoly on imports and sales of tea in the colonies. It was hoped that the monopoly would lower its prices and make it easier for colonists to pay the tea tax. But colonists feared that the monopoly would soon raise its prices. So tea ships were turned away from docks in every port. A tea ship was burned in Annapolis. In December, the Boston Tea Party destroyed nearly $1 million of current value when rebels dumped 342 chests of tea in the harbor. Not one leaf of the monopoly's tea ever reached the colonies.
In 1774, Parliament responded with the five Intolerable Acts. The Quartering Act allowed troops to be quartered directly in individuals' homes and allowed any Royal official or officer to determine whether a house was "uninhabited."
The 1774 Boston Port Act closed that harbor to all exports and imports. The Administration of Justice Act allowed persons accused of rebellion to be jailed and transported to England for trial and judgment. The Massachusetts Government Act cancelled local elections and allowed the Royal Governor to appoint all officials. The Quebec Act allowed the Catholic residents of the Quebec colony to practice their religion freely under King George III and to seal of the Protestant subjects of the coastal colonies from the Ohio Valley and the West.
As the snows melted in 1775, Patrick Henry gave his "Give me liberty, or give me death" speech in Virginia, Paul Revere rode at midnight, and the Minutemen chased the British back to Boston. On October 19, 1781, Cornwallis surrenders at Yorktown. On September 3, 1783, the Treaty of Paris ends the American Revolution.
SO HOW DOES THIS LEAD TO OUR FIRST "KITCHEN SINK" RIGHT?
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.”"
The Supreme Court has never had to issue a direct opinion on the Third Amendment, because the history of British oppression and the spark of American revolution triggered by the involuntary quartering pf troops in private houses is so ingrained in American leaders that they are rarely tempted to think about such actions. One severe exception will finish this discussion.
It took 191 years before a Third Amendment claim to achieve any traction in any federal court. In 2013, the ABA Journal called it "the runt piglet of the Bill of Rights." But that is not quite right.
During the War of 1812, American soldiers along the Canadian border were quartered in private homes to defend against invasion from the north. For a decade after the war, Congress passed a series of private bills to satisfy homeowners for the cost of such quartering or to compensate them for the destruction of their homes by British invaders.
During the Civil War, there were many instances of Union troops being quartered in private homes in both Northern and Southern states. It has been argued that the Third Amendment did not apply because the Civil War was neither a time of "war" or "peace," but of "unrest."
During World War II, Japanese troops invaded Alaska's Aleutian Islands. American troops evacuated citizens and occupied their deserted homes until the invaders were killed, captured, or withdrawn. Decades later, Congress approved payments to the evacuees.
But you can see why we now think of the Third Amendment as a last-resort "kitchen sink" argument by desperate lawyers by looking at a few cases.
1. In 1979, the union heads of the guards at a New York state prison organized a strike. The two leaders were ejected from their rented dorm rooms at the prison in order to house National Guardsmen who were mobilized to replace the striking corrections officers. In Engblom v. Carey in 1982, the Second Circuit held that the union heads as tenants had Third Amendment protection; the Guardsmen were "soldiers;" and the Third Amendment was incorporated on the states. On remand in 1984, the district court dismissed the claim because the Governor could not have foreseen this application of the Third Amendment to a response to a prison riot, and the plaintiffs should have known that strikers could have been replaced by Guardsmen to quell the riot.
"Kitchen sink" rights are real, but the only time you hear about them us when lawyers have no facts on their side . . . when lawyers have no laws on their side . . . and so they throw everything including the kitchen sink into their court papers.
The Third Amendment was included in the Bill of Rights because of a very real problem that had angered the Framers of the Constitution.
A QUICK HISTORY OF TRIGGERS TO THE AMERICAN REVOLUTION
Before the French and Indian War of 1734-1763, England imposed few taxes on the American Colonies, But to pay for the nine-year war and the continued basing of British troops in the colony, Parliament began to impose taxes
First, the Crown issued the Proclamation of 1763 to seize the revenues from the fur trade dominated by the Indian tribes who had been allied with the French. The colonists were forbidden from moving west from the coast. The Crown granted ownership of the inland territory to the tribes and put up forts to protect the tribal land. Finally, the Proclamation declared that the colonists would be required to pay for the defense of the tribal lands to protect the Indians from the colonists.
The first two sets of taxes followed in 1764. The Sugar Act instituted new taxes on molasses and many other imports, while simultaneously slashing the colonies' exports of lumber, iron and rum. The Currency Act crippled colonial exports further by eliminating the colonies' paper money that was needed to pay for trade with other countries. It also subjected colonists to a new Admiralty Court which always favored the Crown in actions against colonists.
In 1765, the Quartering Act required the colonists to provide quarters, food, alcohol, vinegar, and candles to British soldiers who were helping to collect the new taxes. The soldiers were to be quartered in uninhabited houses, so they forced unhappy colonists from their homes. In Philadelphia, the soldiers cut holes in the floors of houses to act as indoor "privies" which made the houses uninhabitable after the soldiers left. In Boston, the soldiers set up camps on the Commons directly across from the homes of unhappy colonists.
That same week, the Stamp Act imposed 55 new taxes on all papers, newspapers, pamphlets, books such as almanacs, decks of cards, dice, and other products that enabled foreign trade, court proceedings, and games in the colonies.
These taxes and oppressions led several colonial legislatures to declare that no royal taxes could be collected in the colonies without the consent of the local legislatures. Smugglers tried to restore international trade and were repressed by the Royal Navy. Patrick Henry gave his "If this be treason, make the most of it" speech in Virginia in 1765.
This led to Parliament to pass the Declaratory Act of 1766, which stripped the colonial legislatures of their powers.
The Townshend Act of 1767 imposed new taxes on tea, glass, paint, and other products.
In 1768, further crackdowns on smuggling to yield more taxes on imports led to the seizure of John Hancock's ship and cargo led to an open rebellion against British troops in Boston. British troops were sailed into Boston from England and Nova Scotia. These troops were also quartered near the unhappy colonists. The merchants of Boston declared a united boycott on the purchase or import of any goods from Britain.
After two years of collapsing exports, heavy taxes, stilted courts, silenced colonial legislatures, seized cargoes, and the quartering of British soldiers in their homes and on the Boston Commons, a crowd gathered to throw snowballs at the British troops in 1770. The soldiers fired into the crowd, killing a black sailor named Crispus Attucks and four others. Future President John Adams later defended successfully the British troops at a trial for the Boston Massacre. But the winds of war continued to gather.
In 1773, the Tea Act granted one company s monopoly on imports and sales of tea in the colonies. It was hoped that the monopoly would lower its prices and make it easier for colonists to pay the tea tax. But colonists feared that the monopoly would soon raise its prices. So tea ships were turned away from docks in every port. A tea ship was burned in Annapolis. In December, the Boston Tea Party destroyed nearly $1 million of current value when rebels dumped 342 chests of tea in the harbor. Not one leaf of the monopoly's tea ever reached the colonies.
In 1774, Parliament responded with the five Intolerable Acts. The Quartering Act allowed troops to be quartered directly in individuals' homes and allowed any Royal official or officer to determine whether a house was "uninhabited."
The 1774 Boston Port Act closed that harbor to all exports and imports. The Administration of Justice Act allowed persons accused of rebellion to be jailed and transported to England for trial and judgment. The Massachusetts Government Act cancelled local elections and allowed the Royal Governor to appoint all officials. The Quebec Act allowed the Catholic residents of the Quebec colony to practice their religion freely under King George III and to seal of the Protestant subjects of the coastal colonies from the Ohio Valley and the West.
As the snows melted in 1775, Patrick Henry gave his "Give me liberty, or give me death" speech in Virginia, Paul Revere rode at midnight, and the Minutemen chased the British back to Boston. On October 19, 1781, Cornwallis surrenders at Yorktown. On September 3, 1783, the Treaty of Paris ends the American Revolution.
SO HOW DOES THIS LEAD TO OUR FIRST "KITCHEN SINK" RIGHT?
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.”"
The Supreme Court has never had to issue a direct opinion on the Third Amendment, because the history of British oppression and the spark of American revolution triggered by the involuntary quartering pf troops in private houses is so ingrained in American leaders that they are rarely tempted to think about such actions. One severe exception will finish this discussion.
It took 191 years before a Third Amendment claim to achieve any traction in any federal court. In 2013, the ABA Journal called it "the runt piglet of the Bill of Rights." But that is not quite right.
During the War of 1812, American soldiers along the Canadian border were quartered in private homes to defend against invasion from the north. For a decade after the war, Congress passed a series of private bills to satisfy homeowners for the cost of such quartering or to compensate them for the destruction of their homes by British invaders.
During the Civil War, there were many instances of Union troops being quartered in private homes in both Northern and Southern states. It has been argued that the Third Amendment did not apply because the Civil War was neither a time of "war" or "peace," but of "unrest."
During World War II, Japanese troops invaded Alaska's Aleutian Islands. American troops evacuated citizens and occupied their deserted homes until the invaders were killed, captured, or withdrawn. Decades later, Congress approved payments to the evacuees.
But you can see why we now think of the Third Amendment as a last-resort "kitchen sink" argument by desperate lawyers by looking at a few cases.
1. In 1979, the union heads of the guards at a New York state prison organized a strike. The two leaders were ejected from their rented dorm rooms at the prison in order to house National Guardsmen who were mobilized to replace the striking corrections officers. In Engblom v. Carey in 1982, the Second Circuit held that the union heads as tenants had Third Amendment protection; the Guardsmen were "soldiers;" and the Third Amendment was incorporated on the states. On remand in 1984, the district court dismissed the claim because the Governor could not have foreseen this application of the Third Amendment to a response to a prison riot, and the plaintiffs should have known that strikers could have been replaced by Guardsmen to quell the riot.
2. In 1972, some Minnesota Army Reservists lost their claim in Jones v. Secretary of Defense that the Third Amendment barred the Army from making them march in a parade before a speech by Vice President Spiro Agnew.
3. In 1977, the district court dismissed the defendant's claim in SEC v. Executive Securities Corp. that the Third Amendment shielded him from having to produce documents in response to a subpoena.
3. In 1951, the district court rejected a challenge to a rent-control law in United States v. Valenzuela that claimed the Third Amendment should prevent rent control because the law would be "the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people."
4. In 1984, the district court in Ramirez v. Weinberger dismissed the plaintiff's claim that the Defense Department was operating a mythical training base for Salvadoran rebels on his cattle ranch in violation of the Third Amendment.
5. In 2001, the Tenth Circuit in Garvey v. Custer County Auction Association dismissed plaintiff's claim that the Third Amendment barred military planes from flying over his property.
6. In 2001, the district court in Johnson v. United States dismissed plaintiff's claim that the storage of chemicals had caused his property to be "invaded and occupied by chemicals" that left a "toxic footprint" in violation of his Third Amendment rights.
7. In 2007, the district court in Bennett v. Wainwright dismissed the plaintiff's claim of a Third Amendment claim. Police were in hot pursuit of a violent criminal who was a resident of a house. A single state trooper shot and killed the fugitive. Crime scene investigators cleared the house in less than 24 hours.
8. In 2014, the district court in Mitchell v. Henderson rejected plaintiff's Third Amendment claim in a case where a police SWAT team "occupied" a house as an observation point for a domestic violence case next door for a few hours. The court held that the police were not troops, and that a few hours of occupation did not constitute "quartering."
WHAT IS THE MOST VISIBLE VIOLATION OF THE THIRD AMENDMENT?
When you visit the Nation's Capitol, look across the river to Virginia for one of the most beautiful private homes in America.
The Custis Mansion was built in 1817 by George Washington Custis, the adopted son of George Washington and the grandson of Martha Washington. Robert E. Lee married Custis' daughter and they raised their family in the mansion. Custis left the House to Lee's son George when he died in 1857. Robert E. Lee freed the slaves on the estate in 1862.
Union troops chased Mary Lee out of the mansion and occupied it in May, 1861. Congress passed a law that property taxes for homes in "insurrectionary" states had to be paid in person at the Capitol. Mary was trapped behind Confederate lines and crippled by rheumatoid arthritis and Robert E. Lee declined to appear at the Capitol. The federal government seized the mansion and the 1,000 acres for non-payment of taxes in 1864.
Lincoln's Secretary of War Edwin Stanton declared that Lee should never be allowed to live in the mansion again, so he approved the burial in shallow graves of Union officer's in the shade of the mansion. Union officers living in the mansion complained about the smell and stopped the burials until Stanton ordered their resumption. As local cemeteries filled with war dead, Stanton ordered more Union troops be buried on the grounds.
After the war and the deaths of Robert E. Lee and Mary Lee, George Lee sued to recover the title to the Mansion and grounds. Following eight years of litigation, the U.S. Supreme Court held in a 5-4 decision that the property had been "illegally confiscated" and returned the land to Lee. He sold it to the government for $150 per acre. It is now Arlington National Cemetery. The Lee family never received compensation for the quartering of Union troops in their home during the war.
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