When is a Search Not a Search? When it's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping
Joshua B. Dugan
July 3, 2008
Georgetown Law Journal, Forthcoming
For over two-hundred years, the Third Amendment has been mocked and neglected. Scholars of all political stripes have assumed that quartering was such an obvious, yet such an obscure violation that it need not be discussed or addressed. The scholarly culture of benign neglect towards the Third Amendment means that no one has ever seriously looked at the debates surrounding the quartering amendment to determine what the Founders' meant when they used the term and what they sought to ban in the amendment.
A comprehensive look at the Constitutional Debates and the American quartering experience illustrates that when the Founders used the term quartering, the used it to refer to an expansive violation for the social contract by the British Army: the military enforcement of law. By banning quartering during peacetime, they barred soldiers from enforcing the law in almost all areas of civilian life. Conversely, by allowing quartering during time of war in a manner prescribed by law, the Founders allowed soldiers to take over civilian law enforcement during wartime, so long as it was approved by Congress.
This revelation has profound implications for our understanding of military powers. Particularly, it questions the validity of using the Fourth Amendment to analyze military searches and seizures - particularly because the same debates illustrate that the Fourth Amendment was never meant to apply to the military - and suggests that current national security law enforcement policies, including NSA wiretapping, should be analyzed under a Third Amendment standard.
Number of Pages in PDF File: 44
Date posted: July 23, 2008