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When is a Search not a Search? When It's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping

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When is a Search not a Search? When It's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping
Topic: Politics and Law 3:24 pm EST, Jan 31, 2009

Josh Dugan, in the January 2009 issue of the Georgetown Law Journal:

The Third Amendment is not merely an esoteric prohibition on an obscure and outdated inconvenience. Instead, the Amendment prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military. The Amendment's proscription against military enforcement of civilian law is evident in the founding debates and documents and is the best explanation for the Amendment in the larger constitutional scheme. This explanation also frees the Third Amendment from offering a redundant protection already contained in the Fourth Amendment.

Far from being irrelevant to contemporary constitutional law, the Third Amendment could have an enormous role to play in today's constitutional schema. As the military establishment grows and its role confronting terrorism expands within the United States, the Third Amendment provides the proper backdrop against which to analyze those military actions which intrude on an individual's life and constitute traditional law enforcement functions, such as wiretapping. This test would categorically bar the military from enforcing the law against civilians during peacetime but would allow the military to do so without any further conditions, so long as the activities were approved by Congress, during time of war.

The Third Amendment may have fallen into obsolescence, but its history suggests it should not remain there. Despite what many are content to believe, the American experience with quartering may not be over. It might have just begun.

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When is a Search not a Search? When It's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping



 
 
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