Unconstitutional Quartering, Governmental Immunity, and Van Halen's Brown M&M Test

Abstract

The jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey. But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the United States, all levels of government — federal, state, and local — enjoy immunity from civil lawsuits. Courts have moreover extended this privilege from sovereigns to their officials; hence Engblom’s refusal to hold New York officials liable for violating the Third Amendment and various common law rights. Few people today worry about the quartering of troops. More people should worry, though, about governmental immunity. Inspired by the sort of royal privileges that the Constitution expressly rejects, and invented by public officials all too eager to exempt themselves from ordinary civil liability, governmental immunity can claim neither an honorable pedigree nor very convincing policy justifications. Like brown M&Ms backstage at a Van Halen concert, the Engblom court’s refusal to remedy violations of the Third Amendment signals a more serious problem: The doctrine of governmental immunity leaves the victims of wrongdoing by sovereigns and their officials without judicial relief. We would do better to treat the government the way that the common law treats private communities, relying on independent third parties to adjudicate disputes and holding both the community and its agents liable for their wrongs.

Keywords: Third Amendment, quartering, governmental immunity, sovereign immunity, qualified sovereign immunity