Domestic spying

Does the Third Amendment Protect Us Against Government Spyware?


Glenn Reynolds, the one and only Instapundit and a professor of law at University of Tennessee, writes that the Third Amendment—the one that limits the quartering of soldiers in your home—may be due for a comeback. Writing in USA Today:

The U.S. Court of Appeals for the Second Circuit held in Engblom v. Carey that the Third Amendment protects a "fundamental right to privacy" in the home. Since then, courts haven't done much to flesh these holdings out, but I wonder if they should. In the 18th century, when the Third Amendment was drafted, "troop quartering" meant literally having troops move into your house to live at your expense and sleep in your beds. It destroyed any semblance of domestic privacy, opening up conversations, affection, even spats to the observation and participation of outsiders. It converted a home into an arena.

Today we don't have that, but we have numerous intrusions that didn't exist in James Madison's day: Government spying on phones, computers, and video — is spyware on your computer like having a tiny soldier quartered on your hard drive? — intrusive regulations on child-rearing and education, the threat of dangerous "no-knock" raids by soldierly SWAT teams that break down doors first and ask questions later.

The Third Amendment hasn't been invoked in these cases — well, actually, it has, in the case of a SWAT team in Henderson, Nev., that took over a family home so that it could position itself against a neighbor's house — but maybe it should be. At least, maybe we should go farther in recognizing a fundamental right of privacy in people's homes….

Read the whole thing here.

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  1. Since then, courts haven’t done much to flesh these holdings out, but I wonder if they should.

    Wonder all you like, but the courts will ultimately determine that the drug war will not be winnable if its soldiers can’t take up residence wherever they feel the need.

    1. Then it is our job, as the Sovereign People, to declare loudly and finally that we DO NOT want that war fought.

      1. For various reasons – some monetary, some ignorant, some perverse – there are people who do want it fought.

  2. How can words on paper protect us from organizations that do not recognize or follow the letter or spirit of those words?

  3. Wait, so I just can’t show up and crash on any of your spare beds/couches?

    1. Spare?

      I’ll take the mater bedroom and share it with any attractive ladies who live there. It’s good to be a kingsman

      1. But I am in the Retired Reserve now. Were I still in, all-time, I would confiscate the whole house!

        1. Retired? Sorry, you’re downgraded to occupying a booth at Denny’s with the $.95 endless coffee and swapping war stories and injury complaints.

          1. You know the only difference between a war story and a fairy tale?

            The fairy tale begins “Once upon a time…” the war story begins “No shit, there I was…”

            *waves at waitress for moar coffee*

  4. Does the Third Amendment Protect Us Against Government Spyware?

    Ima say “Apparently Not” “No”.

  5. The Bill of Rights have always seemed pretty sloppy to me. They overlap (3rd and 4th are both all about privacy, and the 1st protects both freedom of speech and freedom of the press), they have useless language (2nd), and they generally seem like afterthoughts that no one actually put much effort into.

    I think what they really show is how naive the founding fathers were. One of them said the checks and balances were all about balancing ambition against ambition, but it never occurred to any of them that the three branches might think of themselves as one tribe united against the peasants. I can think of no other way to explain why there is no way for the people, or even the states, to repeal federal laws, as fourth or fifth branches.

    1. I recently read The Federalist, and came across this… I thought it was kind of prescient of the critics, and naive of Madison:

      Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

      Now, Madison does go on to demolish this view that providing for the “general welfare” doesn’t mean “do whatever the fuck you want”, but still the Tonys of the world articulate this same position even today, and Madison maybe didn’t recognize that future generations would come to interpret this as the FYTW Clause.

      1. Yes, that’s the kind of attitude I meant. A naivete that only smart and honorable men go into politics, not quite the Top.Men style of thinking which wants the Top.Men to run every aspect of life, but that honorable legislators, judges, and executives will treat the Constitution with respect and honor its intentions.

        As if they could not conceive that anyone would enter politics for selfish power-hungry reasons, as if the War of Independence had flushed that kind of men out of the system for good.

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  8. Does The Third Amendment Protect Us Against Government Spyware?

    If you go off the ruling of the judge in the Henderson, Nevada case (who threw out the lawsuit being brought on 3rd Amendment grounds), the answer is a clear and emphatic “no”. The Third Amendment, as the judge correctly pointed out, was created to prohibit the government from quartering troops in private domiciles as a cost-saving move that burdened private landowners…because of such acts that the British had passed. It has nothing to do with privacy rights, which are protected under the 4th Amendment (also pointed out by the judge in the Henderson lawsuit). The attorneys for the plaintiffs in the Henderson lawsuit agreed with the judge’s interpretation and conceded that it was completely valid, which is why they’re now suing on 4th Amendment grounds (which the judge indicated in his ruling would be a strong legal argument).

    We’re not going to get around government intrusions into our privacy by stretching interpretations of other amendments to fit the outcomes we want…nor should we want to do so (since that plays right into the “living Constitution” argument liberals are constantly using to rationalize their abuses). It’s got to be decided on 4th Amendment and 5th Amendment grounds, even if there are a shitload of judges who are too partisan or too dumb to apply those amendments correctly.

    1. Link to the Henderson outcome.…..-amendment

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