When is a search not a search? When it's a quarter: The third amendment, originalism, and NSA wiretapping

Georgetown Law Journal

Volumn 97, Issue 2, 2009, Pages 555-587

  Dugan, Josh ^a  

^a Georgetown Law ^*  (Guyana)

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EID: 60349105958     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (186)

1. 478 F. 3d 370 (D.C. Cir. 2007), aff'd sub. nom. Heller v. District of Columbia, 128 S. Ct. 2783 (2008).
2. Id. at 395.
3. U.S. CONST., amend. III.
4. This story was related second-hand to the author and may or may not be apocryphal.
5. See also Morton J. Horwitz, Is the Third Amendment Obsolete?, 26 VAL. U. L. REV. 209, 209 (1991) (discussing his own unscientific survey of Harvard Law professors).
6. See Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 WM. & MARY BILL RTS. J. 117, 136-39 (1993) (discussing forced quartering of soldiers in civilian homes during the War of 1812 and the Civil War).
7. The exception is Engblom v. Carey, in which a Second Circuit panel held that the Third Amendment was applicable to the states through the Fourteenth Amendment, and that national guard occupation of prison guard dormitories during a strike could violate the Third Amendment's ban on quartering during peacetime. 677 F. 2d 957, 961, 964 (2d Cir. 1982).
8. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Id. at 500 (Harlan, J., concurring) (mocking Douglas's discussion of "penumbras" and "emanations" by referring to them as "radiations").
9. Cf. PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 22 (1991) ("[A] proposition about the US constitution can be a fact, or be elegant, or be amusing or even poetic, and although such assessments exist as legal statements in some possible legal world, they are not actualized in our legal world.").
10. Leviticus is the third of the Five Books of Moses in the Old Testament. It is primarily concerned with issues of ritual purity, sacrifices, and other activities in the long-since-destroyed Tabernacle and Jewish Temple. See generally Leviticus.
11. See Horwitz, supra note 5, at 214 (describing the obsolescence of the Third Amendment as a function of its inability to be removed from its historical context).
12. See, e.g., Bell, supra note 6, at 118-28, 146-49 (providing detailed history of quartering in England and the United States and arguing that quartering can be conceptualized as a specific type of Fifth Amendment "taking"); Andrew P. Morriss & Richard L. Stroup, Quartering Species: The "Living Constitution," the Third Amendment, and the Endangered Species Act, 30 ENVTL. L. 769, 770-71 (2000) (arguing that under "Living Constitution" theory, the Third Amendment should be read to invalidate the Endangered Species Act); Christopher J. Schmidt, Could a CIA or FBI Agent Be Quartered in Your House During a War on Terrorism, Iraq or North Korea?, 48 ST. LOUIS U. L.J. 587, 601, 604 (2004) (arguing that "soldier" is broad enough to encompass CIA and FBI agents, but not questioning the underlying definition of quartering); Geoffrey M. Wyatt, The Third Amendment in the Twenty-First Century: Military Recruiting on Private Campuses, 40 NEW ENG. L. REV. 113, 142-48 (2005) (arguing that the Third Amendment bars forced military recruiting on private college campuses because the "any house" clause in the Third Amendment is broad enough to encompass colleges, while conceding that quartering is a private property right to exclude soldiers with an underlying concern about separating military from civilian spheres).
13. See, e.g., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 61-63 (1998) (discussing the way in which the Third Amendment embodies broader concerns about federalism, separation of powers, and protecting civilians from the military); Horwitz, supra note 5, at 214 (noting that in light of the Fourth Amendment, the Third Amendment offers largely symbolic protection).
14. See, e.g., Laird v. Tatum, 408 U.S. 1, 15-16 (1972) (noting that the Third Amendment's "philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644-45 (1952) (Jackson, J., concurring) (discussing the Third Amendment as it relates to separation of military from civilian power and the Legislative from Executive Branch); Padilla v. Rumsfeld, 352 F. 3d 695, 714-15 (2d Cir. 2003) ("[T]he Third Amendment's prohibition on the quartering of troops during times of peace reflected the Framers' deep-seated beliefs about the sanctity of the home and the need to prevent military intrusion into civilian life.").
15. See Horwitz, supra note 5, at 214.
16. See William S. Fields & David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 AM. J. LEGAL HIST. 393, 394-95, 431 (1991). Fields and Hardy, like Geoffrey Wyatt, provide a detailed historical account of quartering practices dating back to the Middle Ages. See generally id. at 395-420. They ultimately conclude, contrary to my position, that the Third Amendment provides only a limited individual right, rather than a more fundamental check on the standing army. See id. at 431.
17. See AMAR, supra note 13, at 61-62; Wyatt, supra note 12, at 148 (noting that the goal of the Third Amendment is "the protection of private property and the separation of the military and civilian spheres").
18. See, e.g., RONALD DWOBKIN, FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION 8-9 (1996) (arguing that there is no room to argue that the Third Amendment's protection encompasses any larger principle beyond troops living in quarters); JOHN HART ELY, DEMOCRACY AND DISTRUST; A THEORY OF JUDICIAL REVIEW 99 (1980) (arguing that the Third Amendment is too obscure to become an issue in modern society).
19. See Patrick Henry's Objections to a National Army and James Madison's Reply (June 16,1788), in 2 THE DEBATE ON THE CONSTITUTION 695, 697 (Bernard Bailyn ed., 1993) [hereinafter Patrick Henry's Objections].
20. See id. at 700.
21. See id. at 699-700.
22. THE FEDERALIST No. 29, at 155 (Alexander Hamilton) (E.H. Scott ed., 2002).
23. See, e.g., Bell, supra note 6, at 118-24; Fields & Hardy, supra note 16, at 395-413; Wyatt, supra note 12, at 125-30.
24. See, e.g., Horwitz, supra note 5, at 209.
25. See WILIAM SHAKESPEARE, MACBETH act 5, sc. 5. See generally WILLIAM FAULKNER, THE SOUND AND THE FURY (1929) (telling the story of Caddy Compson and the decline of the Compson family first through the eyes of the severely mentally retarded Benjy Compson, before telling it through the mentally competent, albeit disturbed, viewpoint of his brothers).
26. See Brewer v. Quarterman, 127 S. Ct. 1706, 1720 (2007) (Roberts, C.J., dissenting) (explaining how the Court's opinion in this capital case applied the logic of a previous string of dissenting opinions by noting that "[i]t is a familiar adage that history is written by the victors").
27. See, e.g., Bell, supra note 6, at 123; Fields & Hardy, supra note 16, at 402-06; Wyatt, supra note 12, at 125-27.
28. See, e.g., Bell, supra note 6, at 124-25; Fields & Hardy, supra note 16, at 405; Schmidt, supra note 12, at 645-46; Wyatt, supra note 12, at 125-27.
29. See Bell, supra note 6, at 124-126; Fields & Hardy, supra note 16, at 413-17; Schmidt, supra note 12, at 646-47.
30. See Bell, supra note 6, at 127; Fields & Hardy, supra note 16, at 417-18; Schmidt, supra note 12, at 647. The Declaration of Independence chastises the King for "quartering large bodies of armed troops among us." See Fields & Hardy, supra note 16, at 418.
31. See Bell, supra note 6, at 135 n. 151; Fields & Hardy, supra note 16, at 425; Wyatt, supra note 12, at 143.
32. See Bell, supra note 6, at 124-28. See generally Fields & Hardy, supra note 16; Wyatt, supra note 12, at 148-50.
33. NAPOLEON DYNAMITE (Fox Searchlight Pictures et al. 2004).
34. See generally Bell, supra note 6; Fields & Hardy, supra note 16; Moriss & Stroup, supra note 12; Schmidt, supra note 12; Wyatt, supra note 12.
35. See Wyatt, supra note 12, at 147-50 (noting that there are several lines of British cases that suggest quartering meant stationing or occupancy short of actually living in a given house).
36. Midhurst v. Waite, (1761) 97 Eng. Rep. 821, 822 (K.B.).
37. See, e.g., The King v. Hellingley, (1808) 103 Eng. Rep. 691, 691 (K.B.).
38. Wyatt, supra note 12, at 131-32.
39. Id. at 123.
40. U.S. CONST., amend. V.
41. See U.S. CONST., amend. III.
42. See supra note 12 and accompanying text.
43. Geoffrey Wyatt, for example, focuses his analysis of the term quartering almost exclusively on seventeenth, eighteenth, and early nineteenth-century British cases. Others give only a haphazard analysis of how quartering was used at the time of the Founding, usually by referring, in passing, to one or two examples of quartering used by the Founders. See Bell, supra note 6, at 128 (discussing The Federal Farmer's objection that the Constitution did not bar quartering of troops); Fields & Hardy, supra note 16, at 423-25 (discussing an exchange between Patrick Henry and James Madison at the Constitutional Convention and Roger Sherman and Thomas Sumter's remarks during the Bill of Rights ratification debates); Horwitz, supra note 5, at 211 (discussing James Madison and Patrick Henry's remarks about quartering at the Constitutional Convention); Wyatt, supra note 12, at 123 (discussing Roger Sherman's remarks about quartering at the ratifying convention).
44. See Bell, supra note 6, at 125.
45. See THE DECLARATION OF INDEPENDENCE paras. 11-14 (U.S. 1776).
46. See Fields & Hardy, supra note 16, at 416-17 (describing the "licentious and outrageous" behavior of British soldiers towards American colonists); Wyatt, supra note 12, at 147-48 (describing the "traditional Colonial American quartering tale" as involving soldiers occupying homes, demanding provisions, and harming the homeowners).
47. See Samuel Adams, Letter to the Editor, BOSTON GAZETTE, Oct. 17, 1768, reprinted in 5 The FOUNDERS' CONSTITUTION 215, 215-16 (Philip B. Kurland & Ralph Lerner eds., 1987).
48. See An act for punishing mutiny and desertion, and for better payment of the army and their quarters, 1765, 5 Geo. 3, c. 33 [hereinafter Quartering Act of 1765], available at http://www.yale.edu/lawweb/avalon/ amerrev/parliament/quartering-act-165.htm.
49. Adams, supra note 47, at 215-16.
50. Id. at 215 (emphasis omitted).
51. See King v. Hellingley, (1808) 103 Eng. Rep. 691, 691 (K.B.); Wyatt, supra note 12, at 149.
52. Adams, supra note 47, at 215-16.
53. See, e.g., id. (lamenting how soldiers threatened to overwhelm civil society in the colonies); THE DECLARATION OF INDEPENDENCE para. 25 (U.S. 1776) ("[The King] is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny, already begun with circumstances of cruelty and perfidy, scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.").
54. See Adams, supra note 47, at 215-16.
55. See Speeches of Patrick Henry in the Virginia State Ratifying Convention (June 1788) [hereinafter Patrick Henry Virginia Speeches], reprinted in 5 THE COMPLETE ANTI- FEDERALIST 207, 235 (Herbert J. Storing ed, 1981) ("An English army was sent to compel us to pay money contrary to our consent To force us by arbitrary and tyrannical coercion to satisfy their unbounded demands. We wished to pay with our own consent.").
56. See infra notes 121-24 and accompanying text.
57. Anti-Federalist writer whose identity is generally considered to be Robert Yates. See Herbert J. Storing, Introduction to ESSAYS OF BRUTUS, in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 358, 358.
58. A "prolific" Anti-Federalist writer, whose work is now generally believed to be a collaboration between George Bryan, a Pennsylvania judge and legislator, and bis son Samuel. See Herbert J. Storing, Introduction to LETTERS OF CENTINEL, reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 130, 130.
59. Identity is unknown, although some believe him to be Richard Henry Lee. See Herbert J. Storing, Introduction to OBSERVATIONS LEADING TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION; AND TO SEVERAL ESSENTIAL AND NECESSARY ALTERATIONS IN IT. IN a NUMBER OF LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN [hereinafter LETTERS FROM A FEDERAL FARMER], in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 214, 214-15.
60. Eventual Supreme Court justice and Maryland political official. See Herbert J. Storing, Introduction to SAMUEL CHASE, NOTES OF SPEECHES DELIVERED TO THE MARYLAND RATIFYING CONVENTION, in 5 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 79, 79.
61. See BRUTUS IX (Jan. 17, 1788), reprinted in 2 THE DEBATE ON THE CONSTITUTION, supra note 19, at 40, 42 (analogizing the general danger of standing armies to quartering); LETTERS OF CENTINEL IX (Jan. 5, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 179,182 (expressing his "jealousy" at troops "instituted" in the cities and towns without the "sanction of the law"); LETTERS FROM A FEDERAL FARMER XVI (Jan. 20,1787), reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 323, 329 ("General powers carry with them incidental ones, and the means necessary to the end. In the exercise of these powers, is there any provision in the constitution to prevent the quartering of soldiers on the inhabitants? you will answer, there is not."); SAMUEL CHASE, NOTES OF SPEECHES DELIVERED TO THE MARYLAND RATIFYING CONVENTION, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 79, 82 (listing quartering as the sole problem under his discussion of "standing armies"); see also LETTERS OF CENTINEL I (Oct. 5, 1787), reprinted in 2 THE COMPLETE ANTI- FEDERALIST, supra note 55, at 136, 136 (demonstrating concern over whether the people's houses will continue to be their "castles"-a phrase that was used synonymously with quartering); JOSEPH STORY, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES747 (Fred B. Rothman ed., 1991).
62. See BRUTUS X (Jan. 24,1788), reprinted in 2 THE DEBATE ON THE CONSTITUTION, supra note 19, at 86, 88 (noting that the twin dangers of keeping standing armies in peacetime was the government using the army to enforce its arbitrary rule and the threat of the army overthrowing the government); CENTINEL IX (Jan. 5, 1788), reprinted in 2 THE COMPLETE ANTI- FEDERALIST, supra note 55, at 179, 182 (describing his fear that the select army will suppress freedom and enslave the nation); LETTERS fROM a FEDERAL FARMERII (Oct. 9, 1787), reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 230, 233 (describing how me federal government will inevitably call forth the military to implement its general laws and thereby "destroy all elective governments in the country, produce anarchy, or establish despotism").
63. See, e.g., THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 154, 155; Patrick Henry's Objections, supra note 19, at 695, 700.
64. See, e.g., THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 154, 155; Patrick Henry's Objections, supra note 19, at 695, 700.
65. ESSAY BY A FARMER AND PLANTER, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note 55, at 74, 76.
66. U.S. CONST., art. J, sect; 8.
67. Patrick Henry's Objections, supra note 19, at 695-96.
68. See Quartering Act of 1765, 5 Geo. 3, c. 33, and Quartering Act of 1774, 14 Geo. 3, c. 54, for examples of "billeting" as used to define giving soldiers tickets or "billets" to use for obtaining living quarters.
69. Patrick Henry's Objections, supra note 19, at 695-%.
70. Id. at 697.
71. See infra section II.A (discussing the legislative history of the Fourth Amendment and the Framers' intent to protect against unreasonable searches and seizures conducted by civilian authorities).
72. See U.S. Const., art. I, sect; 8, cl. 15 ('To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.").
73. Patrick Henry's Objections, supra note 19, at 697 (emphasis added).
74. See id.
75. Id. at 699.
76. See Amar, supra note 13, at 12 (noting that the Federalists were "not oblivious to the[] concerns" of the Anti-Federalists); Fields & Hardy, supra note 16, at 424; Patrick Henry's Objections, supra note 19, at 697-700 (transcribing a disagreement between Madison and Henry about whether limits on Congress's ability to call forth the militia may be implied from the Constitution).
77. Madison is commonly referred to as the "Father of the Bill of Rights," and he ultimately championed its adoption. However, for a long time, Madison opposed the Anti-Federalist efforts to include a Bill of Rights in the Constitution. See Fields & Hardy, supra note 16, at 424 (discussing Madison's concerns about a Bill of Rights as expressed in a letter to Thomas Jefferson).
78. Patrick Henry's Objections, supra note 19, at 697.
79. Id. at 699-700.
80. See id.
81. See Bell, supra note 6, at 135 n. 151 (pointing to Sherman's statements as evidence of what quartering meant to those at the debates); Fields & Hardy, supra note 16, at 425; Wyatt, supra note 12, at 143 (relying on statements of Roger Sherman for his definition of quartering).
82. HOUSE OF REPRESENTATIVES, AMENDMENTS TO THE CONSTITUTION (Aug. 17, 1789), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 47, at 217.
83. Id. at 218.
84. Id. at 217.
85. See id. at 218 ("Mr. Sumter's motion being put, was lost by a majority of sixteen."). The final form of the Third Amendment is decisive proof that Sherman's amendment failed as well.
86. Cf. Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. REV. 226, 248 (1988) (explaining why the intentions of dissenters should be ignored for purposes of determining original meaning).
87. The Third Amendment says only that quartering is allowed during wartime "as prescribed by law." U.S. CONST., amend. III. Congress, however, is granted the exclusive authority under the Constitution to make laws. See U.S. CONST., art. I, sect; 1.
88. STORY, supra note 61, at 747.
89. Id.
90. See id.
91. See HOUSE OF REPRESENTATIVES, AMENDMENTS TO THE CONSTITUTION (Aug. 17, 1789), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 47, at 217, 218.
92. See Essay by a FARMER AND PLANTER, supra note 65, at 76.
93. See Patrick Henry's Objections, supra note 19, at 695-96.
94. See, e.g., DICTIONARY OF LAW CONTAINING DEFINITIONS OF THE TERMS AND PHRASES OF AMERICAN JURISPRUDENCE, ANCIENT AND MODERN 977 (Henry Campbell Black ed., 1891) (defining quartering as "[t]he act of a government in billeting or assigning soldiers to private houses, without the consent of the owners of such houses, and requiring such owners to supply them with board or lodging or both").
95. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 126-27 (2d ed. 1829), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 47, at 218 (emphasis added).
96. ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES 300-01 (1803), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 47, at 218.
97. See STORY, supra note 61, at 747; Patrick Henry's Objections, supra note 19, at 695-96.
98. ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND THE AMERICAN DECLINE (1996).
99. TOM BROKAW, THE GREATEST GENERATION (1998) (discussing the generation that lived through and fought in World War II). To be clear, it is not my intent to equate the greatness of the Revolutionary Generation with a hypothetical generation that sought to regulate sexual activity between consenting adults.
100. Geoffrey Wyatt notes, from a doctrinal perspective, that interpreting the Third Amendment to protect areas in which an individual has a reasonable expectation of privacy would likewise be duplicative of Fourth Amendment protections, as interpreted by the Supreme Court. See Wyatt, supra note 12, at 133.
101. U.S. CONST., amend. IV.
102. See, e.g., Terry v. Ohio, 392 U.S. 1, 20-21 (1968).
103. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 762-70 (1994) (describing the Framers' aversion to general warrants and the implausibility of the notion that they would have presumed warrants were necessary for searches and seizures based on the common law history of warrants). The argument, then, that the Third Amendment and Fourth Amendment offer substantively different standards therefore assumes that although the warrant requirement may be one indicator of reasonableness, blanket congressional authorization for officers to search and seize, absent any other individualized criteria, would not be.
104. See Horwitz, supra note 5, at 214.
105. See Wyatt, supra note 12, at 132-33.
106. See Terry, 392 U.S. at 9 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).
107. See Wyatt, supra note 12, at 132-33.
108. U.S. CONST., amend. IV (emphasis added).
109. See Horwitz, supra note 5, at 212.
110. See id. at 211-12.
111. See id.
112. See supra notes 67-70 and accompanying text.
113. See Horwitz, supra note 5, at 211-12; See also Fields & Hardy, supra note 16, at 402-06, 426 (arguing that although the concern about quartering and the concern about standing armies were related, the proscription against quartering in the Third Amendment protected a limited individual right that was distinct from the political dispute about standing armies).
114. See supra notes 74-79 and accompanying text.
115. See id.
116. See U.S. CONST., amend. HI; see also Wyatt, supra note 12, at 132 (noting that the Third Amendment is part of a larger constitutional tradition of separating military from civilian spheres).
117. See Amar, supra note 103, at 770-80.
118. Patrick Henry Virginia Speeches (June 16,1788), supra note 55, at 246, 249.
119. See Patrick Henry's Objections, supra note 19, at 697.
120. See Patrick Henry Virginia Speeches (June 16,1788), supra note 55, at 246, 249.
121. Patrick Henry Virginia Speeches (June 5, 1788), supra note 55, at 211, 223-24.
122. See Wyatt, supra note 12, at 132.
123. THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 155.
124. See supra note 76 and accompanying text (describing Madison's belief that no explicit bar on the quartering of troops was necessary because the power to call forth the militia was implicitly limited to quelling emergencies in public areas).
125. See U.S. CONST., amend. III ("No soldier shall in time of peace be quartered in any house, nor in time of war, except as provided by law." (emphasis added)).
126. See THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 155.
127. See AMAR, supra note 13, at xii ("The genius of the Bill was not to downplay organizational structure, but to deploy it, not to impede popular majorities, but to empower them.").
128. See U.S. CONST., art. I, sect; 8, cl. 15.
129. Patrick Henry's Objections, supra note 19, at 697 (emphasis added).
130. See U.S. CONST., art. I, sect; 8,-cl. 18.
131. See THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 155 (discussing Congress's implied authority to use civilian authority to implement the laws).
132. Amar, supra note 103, at 759, 760 n. 4.
133. See Adams, supra note 47, at 215-16 (describing the danger of soldiers both violating civilian law or imposing arbitrary law through force); Wyatt, supra note 12, at 132 ("The Third Amendment is, after all, one tool to establish the separation of the military and civilian spheres as designed by the Constitution and the Bill of Rights.").
134. See U.S. CONST. amend. III.
135. See id.
136. See, e.g., Adams, supra note 47, at 215-16; Patrick Henry's Objections, supra note 19, at 697.
137. See Graham v. Connor, 490 U.S. 386, 395 (1989).
138. See U.S. CONST., amend. V; Kelo v. City of New London, 545 U.S. 469, 489-90 (2005) (explaining that states may impose heightened standards for eminent domain, but that the Constitution requires only just compensation, assuming that the property is taken for nominally public use).
139. See U.S. CONST., amend. V; Kelo, 545 U.S. at 489-90.
140. See Amar, supra note 103, at 776 (describing how the reasonableness inquiry was typically done by a jury on a case-by-case basis).
141. See THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 155; Patrick Henry's Objections, supra note 19, at 700.
142. See U.S. CONST., amend. V ("No person shall be held to answer for a capital, or omerwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger....").
143. U.S. CONST., art. I, sect; 9, cl. 2.
144. U.S. CONST. amend. III.
145. Geoffrey Wyatt recognizes that this broad reading of the term is possible but rejects it in favor of a more narrow one. See Wyatt, supra note 12, at 144.
146. See, e.g., Address of a Minority of the Maryland Ratifying Convention, (BALTIMORE) MARYLAND GAZETTE, May 6, 1788, reprinted in 5 THE COMPLETE ANTI- FEDERALIST, supra note 55, at 96 ("That soldiers be not quartered in time of peace upon private houses, without the consent of the owners.").
147. See Wyatt, supra note 12, at 142.
148. Quartering Act of 1765, 5 Geo. 3, c. 33, sect; 2.
149. Quartering Act of 1774, 14 Geo. 3, c. 54, sect; 2; See Wyatt, supra note 12, at 143.
150. See Patrick Henry's Objections, supra note 19, at 695, 700.
151. See id. at 695.
152. Id. at 699.
153. Id. at 700.
154. See id.
155. Id. at 697.
156. Compare Patrick Henry's Objections, supra note 19, at 697 (Henry decrying the dangers of indiscriminate quartering), with id. at 699-700 (Madison recognizing Henry's concern but arguing that the militia always had and should continue to have the ability to enforce the law during mass uprisings or street riots).
157. U.S. CONST., amend. IV.
158. Interestingly, the Second Circuit panel that decided Engblom v. Carey also found that the Third Amendment protected a very broad private area, but rather than compare and contrast the original standards as intended by the Founders, the court made this determination by analogy to the Supreme Court's interpretation of the Fourth Amendment. See Engblom v. Carey, 677 F. 2d 957, 962 (2d Cir. 1982).
159. Until recently, much of the Third Amendment protection I articulated in the preceding sections was statutorily protected by a number of provisions, including the Posse Comitatus Act, 18 U.S.C. sect; 1385 (2000). These provisions, while statutorily prohibiting a number of violations that are unconstitutional under my reading of the Third Amendment, include a number of exceptions that allow the military to enforce law in ways that contravene the original understanding of the Third Amendment. They also allow Congress to pass express provisions for military enforcement of civilian law, notwithstanding the statutes' general prohibitions on the practice, suggesting that the only protection against military enforcement of civilian law would be the Third Amendment.
160. See, e.g., United States v. Walden, 490 F. 2d 372, 376-77 (4th Cir. 1974) (considering the Fourth Amendment implications of defendant's conviction for illegally selling a handgun to investigating Marines).
161. In this Note, I have purposely avoided this issue. Whether the War on Terror or War in Iraq constitutes "wartime" for constitutional purposes is a difficult and complex issue that is beyond the scope of this Note.
162. See Katz v. United States, 389 U.S. 347, 352-53 (1967).
163. See National Security Agency, Introduction to History, http://www.nsa.gov/history/index.cfin (last visited Aug. 27, 2008).
164. See National Security Agency, 16th Director: LTG Keith B. Alexander, USA-Biography, http://www.nsa.gov/about/about00022.cfm (last visited Aug. 27, 2008).
165. See National Security Agency, Introduction to NSA/CSS, http://www.nsa.gov/about/index.cfm (last visited Aug. 27, 2008).
166. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at Al.
167. Pub. L. No. 110-55,121 Stat. 552 (2007).
168. Pub. L. No. 110-261, 122 Stat. 2436 (2008).
169. See id. sec. 101, sect; 702(b)(5), 122 Stat. 2436, 2438 (requiring that electronic surveillance procedures comport with the Fourth Amendment).
170. See id. sec. 101, sect; 702(i), 122 Stat. 2436, 2443-46 (discussing requirements for judicial oversight).
171. Cf. Schmidt, supra note 12, at 595, 601, 604 (discussing why FBI and CIA agents should be considered "soldiers" under the Third Amendment, though the author eschews any reliance on founding documents or original intent).
172. See Wyatt, supra note 12, at 136-37.
173. See RAWLE, supra note 95, at 218.
174. See Amar, supra note 103, at 771-73 (discussing the traditional, common law officials who issued and executed warrants).
175. See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365,1377 (1997).
176. Cf. id. (suggesting that there is no reason to suspect that the U.S. Air Force would not be included under the army or navy provisions in Article I).
177. See National Security Agency, supra note 163.
178. National Security Agency, supra note 164.
179. National Security Agency, supra note 163.
180. See THE FEDERALIST No. 29 (Alexander Hamilton), supra note 22, at 154-55; Patrick Henry's Objections, supra note 19, at 700.
181. See Kay, supra note 86, at 255-56.
182. Lessig, supra note 175, at 1377.
183. See Patrick Henry's Objections, supra note 19, at 700.
184. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (Scalia, J., majority opinion) (holding that use of a thermal imaging device that detects the physical attributes of a home's interior constitutes a "search" under the Fourth Amendment).
185. See Katz v. United States, 389 U.S. 347, 364 (1967) (White, J., concurring) (concurring on the condition that the majority decision requiring a warrant to conduct wiretapping does not apply to wiretapping authorized by the President for national security purposes).
186. U.S. CONST. amend. III.