We The People: Canary in the Coal Mine

The Third Amendment. Maybe you've heard it as part of a punchline. It's the one about quartering troops — two words you probably haven't heard side by side since about the late 1700s. At first glance, it might not seem super relevant to modern life. But in fact, the U. S. government has gotten away with violating the Third Amendment several times since its ratification — and every time it's gone largely unnoticed. In a time of escalating political violence, police forces armed with military equipment, and more frequent and devastating natural disasters, why the Third Amendment deserves a closer look. This episode originally ran in 2024. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

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• 0:00Speaker 00

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• 0:15Speaker 01

  If you've heard of the Third Amendment, it might have been as part of a punchline.

• 0:19Speaker 02

  I take the Third all the time, every day. And then if somebody tries to call me on it, they go, well, what is the Third? That's when I take the Fifth.

• 0:28Speaker 01

  It's the one about quartering troops, two words that have probably been rarely said side by side since about the late 1700s.

• 0:36Rund Abdelfatah?

  But here's what it actually says.

• 0:38Speaker 04

  Amendment number three.

• 0:40Speaker 05

  No soldier shall, in time of peace,

• 0:43Speaker 06

  be quartered in any house without the consent of the owner, nor in time of war,

• 0:48Speaker 05

  but in a manner to be prescribed by law.

• 0:52Rund Abdelfatah?

  So in more modern terms.

• 0:54Speaker 04

  The army can't live in your house.

• 1:00Speaker 01

  Right. So at first glance, this amendment maybe doesn't come across as the most relevant to Americans today.

• 1:07Speaker 06

  I've seen other examples and memes of you're dating someone and they're in the military, like it's an excuse to like force them to go home or something like that, you know, say, Third Amendment.

• 1:16Rund Abdelfatah?

  People have thought of lots of possibilities.

• 1:20Speaker 02

  And don't you thank God every day for that Third Amendment? The other afternoon, this was Tuesday, I was in my apartment and the buzzer rang and it was the 101st Airborne. I even used it to get out of jury duty.

• 1:34Speaker 02

  I go, you cannot quarter me in any jury. That's my Third Amendment right.

• 1:39Speaker 02

  And even the judge had to look it up.

• 1:42Speaker 06

  I don't think that is the entire story, though, because there have been instances historically of, you know, quartering occurring where it just really didn't get litigated. It didn't make its way through the courts at all.

• 1:54Rund Abdelfatah?

  In fact, the US government has gotten away with violating the Third Amendment several times since its ratification. And every time, it's gone largely unnoticed.

• 2:05Speaker 05

  The brown M&Ms backstage at a Van Halen concert.

• 2:09Speaker 01

  This is Professor Tom W. Bell, and he's got this analogy. Maybe you've heard of it.

• 2:15Speaker 05

  So Van Halen would come to these towns during these big concerts, and big concerts are big deals. There's a lot of heavy equipment, there's powerful electrical currents going around. It needs to be done right. And so Van Halen's attorneys put this clause in their multi-page agreement with these venues. The clause said backstage, there will be a bowl of M&Ms with all the brown ones removed. Why did the attorney do that? It's not because these rock stars had some kind of fetish about non-brown M&Ms, no. It's because their smart attorney said, that's my canary. First thing attorney does, visiting the venue, goes to the backstage, looks in the bowl. If there's brown M&Ms, they say, better check the electrical. Give me the number of that guy who set this up. This is not good.

• 2:58Speaker 05

  We don't start unless you fix this, and I want everything looked at twice.

• 3:03Rund Abdelfatah?

  The Third Amendment was written in case of a constitutional worst-case scenario, the sort of moment America's founding fathers sat around worrying about.

• 3:12Speaker 05

  The Third is like the brown M&Ms backstage at a Van Halen concert. If it's going wrong, if it goes, you know, belly up, the Third, we got bigger problems. When things get so far along that troops are in our homes, you can bet there's been some other violations along the way.

• 3:30Rund Abdelfatah?

  The situations where the Third Amendment comes up are inherently unstable. They're moments of crisis. The government has to act fast in response to a serious threat on American soil, like an invading army or a hurricane.

• 3:45Speaker 01

  In those terrifying precarious moments, the Third Amendment is a guardrail. It's there to make sure that a moment of crisis, even a massive one, doesn't send us down the path of authoritarianism.

• 3:57Speaker 05

  The Third tells us about peace and war. It says nothing about the middle time, times of unrest.

• 4:04Speaker 01

  I'm Ramtin Arablouei.

• 4:06Rund Abdelfatah?

  And I'm Randa Abdel Fattah. Living in a democracy comes with rights and responsibilities. For close to 250 years, we in the US have hashed those out in the Constitution and its 27 amendments. But as we all know, those arguments are never really over, and new situations mean new challenges. Over the next few weeks, we're going to look at four amendments, ranging from the most well-known to the more obscure. What we find in them might surprise you. Throughline's ongoing series, We the People, explores the controversies, compromises, and consequences behind our nation's constitutional amendments. First up, the Third Amendment.

• 4:52Speaker 01

  Today, in a time of escalating political violence, police forces armed with military equipment, and more frequent and devastating natural disasters, here's why the Third Amendment deserves a closer look.

• 5:11Speaker 07

  Hi, this is David Finkel in Rancho Palos Fertiles. Throughline has consistently been one of the best programs I have heard. I look forward to each week's release, and I commend you for the phenomenal work you do. I have recommended it to hundreds of people. Thank you. And you're listening to Throughline on NPR.

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• 6:58Speaker 09

  To the friends of American liberty, the pretense for a military establishment on this continent was for its protection and defense. But the mask is now taken off, and the cat let out of the bag entirely. Witness the warlike preparations and threats against our brethren in Boston.

• 7:18Speaker 01

  In 1765, the British Crown knew it had a problem in Boston. Parliament had imposed a series of new taxes on the colonies to pay for the soldiers the British Empire had sent over to fight the French and Indian War. The colonists were expected to give the soldiers free room and board, and Bostonians in particular were not happy about it. There were riots, rumblings of revolution.

• 7:46Speaker 09

  There is not the least doubt, but that as the cloud which threatens us gathers more thick over our heads, the country in general will abound with true sons of liberty.

• 7:55Speaker 01

  So in 1768, the Crown sent over four regiments of troops to occupy Boston City's center. And the question of where to put those soldiers would spring the powder keg of revolution.

• 8:11Rund Abdelfatah?

  Shortly after noon on October 20th, 1768, Boston's sheriff marched up to a two-story brick building in the center of town. For several weeks, British soldiers had been sleeping out on the common in a public hall in the townhouse. The regiments did have access to barracks and a fort just outside town, but they'd been sent with explicit instructions to occupy Boston. The sheriff wanted to move the soldiers into this building called the "Manufactory House," which was big enough to accommodate an entire regiment. The problem was, people were living there, and they refused to leave.

• 8:50Speaker 01

  Before long, the building was surrounded by soldiers wielding bayonets. The residents were trapped inside, without food or water, and their neighbors started gathering outside the building, an angry mob contracting around the group of British soldiers. The governor and city leaders managed to defuse the situation before things got violent. The regiment found another place to stay, but Boston had gotten its first real taste of quartering, and it was not about to agree to a second one.

• 9:22Rund Abdelfatah?

  Around the colonies, objections to quartering were becoming a rallying cry.

• 9:27Speaker 09

  Now the detestable purpose is known, though before only suspected, for which a large standing army is quartered in America, that they may be ready on all occasions to drag on us into any measures which the arbitrary tools of ministerial power may think fit to impose.

• 9:44Rund Abdelfatah?

  When the British Parliament passed another act a few years later, making it even easier to quarter soldiers in the colonies, the revolutionaries labeled it "an intolerable act." And the reaction to Parliament's "intolerable acts," as they became known, including quartering, put the colonies on the path to war. A statesman from Virginia, Richard Henry Lee, described the reaction to the first of these acts.

• 10:13Speaker 10

  The shallow ministerial device was seen through instantly, and everyone declared it the commencement of a most wicked system for destroying the liberty of America.

• 10:24Rund Abdelfatah?

  And when they wrote the Declaration of Independence in 1776, the founding fathers addressed the issue of quartering head on.

• 10:32Speaker 11

  He.

• 10:33Rund Abdelfatah?

  The King of Great Britain.

• 10:34Speaker 11

  Has given his assent to their acts of pretended legislation for quartering large bodies of armed troops among us, for protecting them by a mock trial from punishment for any murders which they should commit on the inhabitants of these states.

• 10:52Rund Abdelfatah?

  This foreshadowed the Third Amendment.

• 10:55Speaker 05

  I'm Professor Tom W. Bell.

• 10:57Speaker 01

  He's a professor at the Fowler School of Law at Chapman University in Southern California.

• 11:02Speaker 05

  I'm a scholar of a few things, but I'm here today to talk about the Third Amendment because I care about it and nobody else really does much. So, welcome to one of my favorite topics.

• 11:13Speaker 01

  We sat down recently to talk about the Third.

• 11:16Speaker 05

  So let me give you a kind of more compact version of the Third. It's really quite simple.

• 11:20Speaker 01

  All right. Okay.

• 11:21Speaker 05

  In times of peace, don't put soldiers in people's houses. In times of war, you can do it if Congress writes a law about it.

• 11:29Speaker 01

  Could you actually read the amendment for us first? And then we're going to go through and actually talk about what it means.

• 11:36Speaker 05

  I would love to. The Third Amendment of the Constitution of the United States of America. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

• 11:53Speaker 01

  Let's start with quartered, which, can I be honest with you? The only time I ever come across that term is when they're describing like medieval torturing. Like, I'm big into medieval history and they talk about these weird ways they used to torture people and quartering comes up. But in this context, it means something else. What does it mean?

• 12:13Speaker 05

  It's basically putting soldiers is what the Third Amendment mentions, but basically military people into private homes. That is quartering. And so, most of us kind of look at quartering and we say, I guess maybe that was a problem for somebody somewhere, but I can't imagine. There's barracks, you know? Why would you do that? Yes, the Third right now looks to us like an anachronism, but boy, it was a real thing for a lot of people for a long time. A terrible concern. I think, in fact, you can argue the Third Amendment has deeper roots than any other provision of the Bill of Rights. I've traced it back to 1131. Wow. Eleven thirty-one. And I don't think, you know, the, the, the right to not testify against yourself,

• 12:57Speaker 05

  or even freedom of speech, they didn't have freedom of speech in eleven thirty-one. But they did have troops being quartered, specifically in this case, on the people of London. And so London got a, what they call the Charter. It was, we still have charters today. Cities often have charters. But back then, it was more like a kind of a constitution for a city. And London, very powerful city, of course, in England, got a charter from Henry the First, saying, stop quartering your troops in London.

• 13:24Speaker 05

  Other town and borough charters throughout. Europe kind of followed that lead. Even over in France, were a few of these towns that had charters. And they got similar protections against the local sovereign. They were concerned both about quartering, but also its pervayance, which is basically taking people's stuff. Both are bad. Both happened. So that goes way back to medieval times. And then it became part of, important part of, uh, English, uh, political developments that influenced the, the, the colonials, like it appears in the Magna Carta, Petition of Rights, the Anti Quartering Act, these are all English. All the way up to the colonial time, when true form, redcoats were being quartered on Americans, both because there weren't barracks, it was the frontier, far away from the homeland for the English, and to suppress these uppity Americans.

• 14:10Rund Abdelfatah?

  By the time the Revolutionary War got going, both sides were relying on civilians for food and shelter. In the winter of seventeen seventy-seven, British soldiers forced their way into homes in Philadelphia. They were also allowed to move into, quote, "uninhabited houses, outhouses, barns, or other buildings."

• 14:31Speaker 05

  We were also in a time when there wasn't all that much of a professional military in place. Uh, certainly, nothing near the apparatus that we have today.

• 14:40Rund Abdelfatah?

  This is Michael Smith, an assistant professor of law at Saint Mary's University in San Antonio, Texas.

• 14:47Speaker 05

  And this habit or need for soldiers, including American soldiers, to take over civilian facilities and housings, because they didn't have bases, barracks, just the resources that they have today. And with such vast conflict fresh on people's minds, I think that's what really motivated them to put this into the Constitution, make it part of our fundamental law, to put it, you know, closer to the front of the Bill of Rights.

• 15:15Speaker 01

  Was it controversial? Was it popular? What was its role right there at the beginning in the creation of the Constitution?

• 15:22Speaker 05

  It was popular. There were many different points of view about about creating a new country. Nobody said quartering is not a big deal. Don't worry about it. This was in living history. States had already written into those early states their own constitutions that many of them had bills of rights, prohibitions on quartering. And we want to make the federal government follow the same rules.

• 15:43Speaker 01

  It was interesting is it also follows in a lot of ways the spirit of the First and Second Amendment in some ways. It's like this idea that you have a right to, you know, people not messing with your, you know, with your private life, whether it's your right to have a gun, you know, or right to not have soldiers in your house, like that your house is kind of like, I guess, is the castle doctrine is later what was used in a different context. But this idea that it's your it's your house, you get to protect it and the government shouldn't be able to kind of intrude on that sacred space.

• 16:16Speaker 05

  Absolutely. And you're kind of alluding also to the Fourth Amendment. I agree with you, the Second kind of connects to the Third and it connects to the Fourth. So the Third's kind of in this chain of rights.

• 16:24Speaker 01

  But those other amendments have something the Third mostly doesn't, a paper trail. The Third has never been the primary basis of a Supreme Court decision. And that means the Third Amendment is much less well defined than our other amendments. Why do you think we haven't debated the Third Amendment the way we have the First and Second Amendments?

• 16:49Speaker 05

  Well, attorneys and legal academics like me, I mean, we look for case law. That's kind of what we care about. And there's hardly any case law on the Third Amendment because it's hardly been litigated. I will say, though, it should have been litigated more. So it's very easy to look at Third and say, oh, yeah, interesting historical artifact, it's not relevant now. And I thought that, too. And then I started doing research and I discovered the Third has been violated in American history, time and again, repeatedly.

• 17:16Rund Abdelfatah?

  The first time we know of was during the War of 1812, just over 20 years after the Third Amendment was ratified.

• 17:24Speaker 05

  There were unresolved issues after the War of Independence between America and Great Britain, and those erupted again in the War of 1812 and did finally resolve those matters. But it didn't go well for Americans. Remember, the the Brits marched on Washington. They burnt down the Capitol. We did get the Star Spangled Banner out of it, but it was not a good fight for Americans. The British kind of gave the Americans a spanking. And there was quartering. At this time, I found it in an obscure congressional document that was recording sort of payments made after the war for people who had complaints against what the American troops had done. Because if the Brits are marching on Washington, American troops were all over the place.

• 18:05Speaker 01

  And those troops needed somewhere to stay. Some of them found their way to the house of a man named John Anderson, and they moved in without his consent. While the troops were quartered there, the enemy burned the house down. So Anderson came to Congress.

• 18:20Speaker 05

  And said, "You're going to pay for this." And they said, "Okay, we'll pay for it."

• 18:24Rund Abdelfatah?

  Congress authorized compensation, quote, "for the loss of a house by fire, while, without the consent of the owner, it was occupied by the troops of the United States." The federal government agreed to pay Anderson $1,300, around $35,000 today. That was the end of that story, at least as far as the record goes. But 50 years later, another war broke out on American soil. And this time, things were even messier, both for Americans and for the Third Amendment.

• 18:58Speaker 01

  The Civil War. I mean, what war in US history was more intimate in the sense that it was happening in neighborhoods and in towns and in fields and on farms? So it would seem to me that there was definitely going to be quartering going on there.

• 19:14Speaker 05

  Oh, you're right. There was a lot of quartering during the Civil War. You can imagine how they unspooled, right? Troops show up, farmer's land, "We're using the barn, house too, get out. Nice eggs you got here, cheese too, scram." And then they burn it down.

• 19:30Speaker 01

  The most famous example of this is probably Sherman's March to the Sea, when the Union Major General William Tecumseh Sherman and his army spent 37 days marching across Georgia, leaving burning and ransacked cities in their wake.

• 19:45Rund Abdelfatah?

  Sherman and around 60,000 soldiers forced thousands of civilians to evacuate. They occupied their homes, ate their food, and torched their buildings on the way out. But Sherman was far from the only one quartering during the Civil War.

• 20:01Speaker 05

  It happened many times. Many people came to Congress asking for payment for damages rendered by the troops, by the Union troops, and they often got that money. However, let me return to civil, quote, "war" because here is the thing. The Third is simple but subtle. Again, it says, "In times of peace, no quartering. In times of war, you've got to do it by some method enacted into law. Congress has got to control this. You can't have just the executive's armed forces going out and doing this." What was the Civil War? It wasn't really a war, not in the legal sense. Because the Union forces regarded the Southern states as insurrectionist, they didn't recognize them as a separate sovereign. So it was to them a rebellion, an armed rebellion within

• 20:45Speaker 05

  the borders of the United States, not a war. Congress never declared war. The Third Amendment doesn't tell us what to do in that gray zone between peace and war, which is actually pretty common. And in fact, it looks like the founders built in that gap on purpose, probably because the founders wanted to reserve the right to quarter troops in times of civil unrest. They knew about violent revolution. They'd done it themselves.

• 21:15Rund Abdelfatah?

  Coming up, a foreign army prepares to invade the United States. The Third Amendment is put to the test.

• 21:35Speaker 12

  Hi, this is Jaclyn from Tacoma, Washington, and you're listening to Throughline from NPR.

• 21:41Speaker 00

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• 22:55Rund Abdelfatah?

  On June 3rd, 1942, six months after Pearl Harbor, American soldiers stationed in southwest Alaska watched Japanese planes fly overhead on their way to bombard the Aleutian Islands.

• 23:10Speaker 05

  If you think of Alaska as like a person's face looking towards Russia, the Aleutians are that long string of islands that make kind of a long beard out into the Northern Pacific. And they stretch a long way, very isolated. It's one of the most isolated places on Earth. The Aleutian people traditionally lived there.

• 23:29Rund Abdelfatah?

  The Aleutians, or Ununga people, had lived on the Aleutian Islands for thousands of years. They survived and thrived in an incredibly harsh climate and became master navigators, skilled hunters, and exceptional artists.

• 23:46Speaker 05

  In addition to their native culture, they were influenced by Russian trappers and traders who came through the area. And mostly Aleutians at the time of these events were Orthodox, Orthodox Christians.

• 23:58Speaker 01

  In 1942, Alaska was not yet a US state.

• 24:03Speaker 05

  But by the way, in case you're wondering, there's good law that tells us constitutional rights apply in territories. These Aleutian islanders had all the rights of any American living in Dubuque, in Washington, DC, whatever. So after Pearl Harbor, of course, Congress stuck its neck out and said, we're declaring war against Japan. And this was a war, declared war. And Japan started as part of its wider campaign, kind of working its way up the Aleutian Islands, invading the United States.

• 24:32Speaker 05

  The United States military pushes back. The Japanese are still very far away. It's a vast area, but they are coming. And these Aleutian islanders are kind of in the way. They're up closer to the mainland. And the military, I think, views them that way. You are civilians living here. You're kind of in the way. We're going to be fighting here. We've got to get you out of here. And we're going to displace you.

• 24:50Speaker 13

  We saw the kind of boat coming in, but we weren't sure, you know. It's way down there.

• 24:56Speaker 01

  Iva Cherepanov was a child at the time of the evacuation. She and other Unanga talked about their experience in oral history interviews for the National Park Service as part of the Beginning of Memory project.

• 25:09Speaker 14

  They wake us up and they put us on the dock. And the army's there on the line. They're watching us. And we have just cried. I want my daddy. Couldn't see my daddy.

• 25:24Speaker 15

  Come out. We've got small thing in our hand, our luggage. Didn't have a chance to get our luggage.

• 25:31Speaker 13

  I didn't take anything, no clothes or nothing. Just the way I'm wearing. Got on a boat. There was no time to take anything because they can't wait for those planes come back. It might bomb us, you know. That was terrible.

• 25:46Rund Abdelfatah?

  Nearly 900 Unanga were forcibly evacuated from their villages. They were loaded onto transport ships and watched from a distance as the US military set fire to some of their homes and churches. Their cattle were rounded up and shot. As the Unanga sailed away from their ancestral lands, the horizon glowed.

• 26:08Speaker 01

  For two years, the Unanga were interned in rotting, abandoned canneries in southeast Alaska. They didn't have plumbing, electricity, or toilets. Most brought just one bag. And without warm winter clothes and access to medical care, more than 70 Unanga died of pneumonia and tuberculosis. Many of them were elders, and their traditional cultural knowledge died with them.

• 26:34Speaker 05

  It is terrible, terrible. It's a lot like the Japanese internments, which happened more or less contemporaneously and motivated by some of the same racism.

• 26:44Rund Abdelfatah?

  The US Army had burned down homes and resources it was worried the Japanese could use if they invaded. But the American soldiers who stuck around to defend the islands also needed somewhere to sleep. So, some villages were left intact. And this is where the Third Amendment could come into play.

• 27:04Speaker 05

  And then they move into their houses. The Lusin Islands are gone. There's not much by way of barracks here. We got a lot of troops. They put them in the houses. And when they're in the houses, they do things like they destroy the religious icons, which if you know Orthodox Christians, you know that's a big deal.

• 27:22Speaker 01

  Yes.

• 27:23Speaker 05

  And then lost other things too, of course. They stole their possessions. Maybe that's not as bad as being evacuated, but troops are quartered in their homes. Violation of Third Amendment. It's time of war. Congress has not passed a law. It's right there in the Third Amendment. I could read it to you again. Nor in time of war, except in a manner enacted by law. Congress didn't do it.

• 27:37Speaker 01

  Okay, so they're evacuated, many people die. When they come back, what do they see?

• 27:43Speaker 05

  These people have suffered displacement. They've lost their elders, their children. Now they're back in their towns. Finally, home, but where's their home?

• 27:53Rund Abdelfatah?

  Their homes were destroyed. Some blasted away by TNT, others ransacked by soldiers, or simply left unprotected to the elements.

• 28:04Speaker 16

  After the war, after people were evacuated, was there any thought of going back to McCusham?

• 28:11Speaker 17

  No, I don't think so. The house was already...

• 28:16Speaker 16

  Already wrecked, wrecked in McCusham.

• 28:18Speaker 17

  And the rest of the roofs was all blown off. No stove on it. Any one of them. Everybody moved out of the... Took the stove out of their house and used it for the stove. Then they stole a lot of stuff too.

• 28:34Speaker 16

  The Army stole a lot of stuff.

• 28:37Speaker 17

  Yeah.

• 28:39Rund Abdelfatah?

  A military police memo from 1944 describes some of the homes like this.

• 28:45Speaker 10

  Inspection of contents revealed extensive evidence of widespread wanton destruction of property and vandalism. Contents of clothespacking boxes, trunks, and cupboards had been ransacked. Many items listed on inventories furnished by the occupants of the houses were entirely missing. It appears that armed forces personnel and civilians alike have been responsible for this vandalism.

• 29:08Speaker 05

  They didn't get checks. Nobody walked in and said, "Oh, sorry, here's the check." That had to wait until decades later.

• 29:14Rund Abdelfatah?

  In 1988, the government established a trust for some communities and paid individual survivors $12,000 each. That's a little less than $32,000 in today's money.

• 29:27Speaker 05

  And by the way, if you take this check, you're waiving all other claims against us. So if now you find an attorney who will press your Third Amendment claim, you're taking the check, you're not suing the US government. You just signed away your rights but taken the check. Congress did issue an apology afterwards. Mostly it was for the internment and the displacement of peoples rather than quartering. But anyhow, Congress did say, "Sorry about that, we were wrong."

• 29:49Speaker 01

  I see.

• 29:49Speaker 05

  But to the shame of my profession, no lawyer anywhere seems to have noticed, "Hey, um, this is a corner of troops during time of war and Congress isn't telling us how to do it. This is pretty plainly violates the Third Amendment." As far as I can tell, no lawyer noticed it then. So so much for our constitutional rights. I mean, it's wonderful they're written down, but if nobody gets up and defends them, they are not even worth the paper they're written on.

• 30:17Speaker 01

  Okay, so we have three instances so far where quartering arguably happened: the War of 1812, the Civil War, and World War II. But still, no court cases.

• 30:28Rund Abdelfatah?

  The first time this amendment goes to court, as far as we know, is nearly four decades after the Aleutian Islands incident in 1979. It's still the only time the Third Amendment has been seriously considered by the American legal system. The case is called Engblom versus Carey.

• 30:49Speaker 05

  Angblom versus Carey happened in New York State when prison guards went on strike and the governor brought in National Guard troops and put them in the barracks of these guards. These guards had barracks on site. And when you had a barrack room, you had the key to that room. It was just like your college dorm, as it were. So anyhow, National Guard troops end up in these dorms.

• 31:11Rund Abdelfatah?

  When the prison guards returned from their strike, they found their rooms ransacked and personal belongings destroyed or missing. They decided to take legal action.

• 31:22Speaker 05

  Now, here, finally, finally, an attorney noticed, there's this Third Amendment thing. I can use this. And they did. And they sort of won on that claim. It went up to the Court of Appeals and the Court on Appeals said a number of interesting things about the Third Amendment.

• 31:41Speaker 01

  In fact, this ruling, the first one ever to interpret the Third Amendment in the court of law, made three important points. First, what happened at this New York State prison did qualify as quartering.

• 31:53Speaker 05

  It was time of peace and there was quartering.

• 31:56Speaker 01

  Yes.

• 31:56Speaker 05

  Can't do that.

• 31:56Speaker 01

  Right.

• 31:57Speaker 05

  That's bad.

• 31:58Speaker 01

  Secondly, the dorms. Those could be interpreted as homes.

• 32:02Speaker 05

  These rooms were homes within the scope of the Third Amendment barracks. It doesn't have to be like, you know, your mortgaged, three-hole estate. If you're an apartment dweller, you're good to go.

• 32:11Speaker 01

  Right. But potentially, the most significant part of this ruling concerned the National Guard. Before Angblom versus Carey, it wasn't clear how literal a court would be when it interpreted the word soldier in the Third Amendment. But now, we know.

• 32:28Speaker 05

  National Guard troops are troops. They told us that, too.

• 32:32Rund Abdelfatah?

  And the reason that matters is because the National Guard typically serves domestically. It's the branch of our military most frequently dispatched to manage unrest and climate disaster response. In other words, they're the soldiers most likely to end up in a situation where they need to crash in someone's house.

• 32:51Speaker 01

  This will become important later. But when it came down in 1982, the Angblom v. Carey ruling ended up being a little bit of an anticlimax.

• 33:00Speaker 05

  Um, as far as I can discern, no damages were ever paid. And the court said, oh, this third amendment is so obscure. Anyhow, we're not going to hold you to it. You're going to get off. Don't do it again. We're letting you off this time because who could have known? That is basically the reasoning of the court. Maybe that's the lasting impact of Inblom versus Carey. It took away the excuse of government officials that how could we have known? Now you know, if you're paying attention to the law and it's your job to pay attention to the law.

• 33:27Speaker 01

  So it's like they got, they got like a free pass, like one free pass to say, you know, you, you, you maybe didn't remember that this third amendment was there, but you can't do it ever again.

• 33:37Speaker 05

  That's right. The fact that the third has been violated time and again with no one making so much as a peep. And the fact that the one time a court did catch government officials quartering, it basically gave them a pass tells us something rather troubling about our constitutional rights. Even when it's written down, even when it's only three from the top, government officials can't be counted on to take it seriously. And when they do, it's not clear that they will suffer any real ramifications of violating those rights.

• 34:10Speaker 01

  Coming up, a natural disaster sends the National Guard into a major American city. And the third amendment gets another look.

• 34:23Speaker 07

  Hi, my name is Joe McInnes. You're listening to Throughline from NPR.

• 34:27Speaker 00

  Stay tuned for the following announcements and messages from our sponsors. This message comes from Sony Pictures Classics, proudly presenting the acclaimed new crime thriller, The Only Living Pickpocket in New York. The Daily Beast raves, "A perfect crime film." John Turturro gives a "Career Best Performance." Also starring Giancarlo Esposito, Tatiana Maslany, Will Price, and Steve Buscemi. See the film that the LA Times calls "Instantly Classic." Opens only in theaters October 23rd in New York and Los Angeles. Nationwide, October 30th. Support for NPR and the following message come from Random House, publishers of The Things We Never Say, the new novel from Elizabeth Strout. The Things We Never Say follows Artie Dam, a beloved teacher and earnest father.

• 35:12Speaker 00

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• 35:25Speaker 08

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• 35:43Speaker 18

  Hurricane Katrina is battering the Gulf Coast and is now swamping New Orleans.

• 35:47Speaker 19

  Powers out over most of New Orleans. The water mains have been broken. If it overtops those hurricane protection levees, most New Orleans will be under a good bit of water. Wind is being blown sideways. Water is running through the streets.

• 35:58Speaker 20

  Winds clocked at 100-plus miles per hour are flinging debris through the air. Downtown high-rise hotels are swaying like ships at sea.

• 36:06Speaker 21

  This could be the worst flood that this country has ever seen.

• 36:12Speaker 05

  Hurricane Katrina. Huge hurricane hits the South Coast of America and floods New Orleans and surrounding areas. And it's a mess. And so they call in the National Guard, mostly to help with cleanup, but also to do things like provide police protection, prevent looting. And the place is a wreck, so it's kind of hard to figure out where to put these National Guard troops. You can't have them, you know, living on the high ground far away. They need to be right there.

• 36:37Rund Abdelfatah?

  It was the largest domestic military deployment within the United States since the Civil War. And because there was no structurally sound military housing available for the 50,000 troops who'd been deployed, the National Guard slept in schools, convention centers, hospitals, hotels, and churches.

• 36:56Speaker 01

  At the time, a law student named James P. Rogers was volunteering with a hurricane response group. He heard a rumor, which, by the way, he was never able to confirm, about someone who claimed that the National Guard had stayed in their house and ransacked it. And Rogers thought that could qualify as a Third Amendment violation. So he wrote a legal note detailing other examples of potential quartering during Hurricane Katrina.

• 37:23Speaker 05

  There are some interesting cases, such as, for example, a golf club where some National Guard troops took up residency. And when the owner showed up, he found these National Guard troops wearing the golf shirts. They'd gone ahead and helped themselves through some sharp duds from the pro shop. A closer case, which Rogers' paper mentions, there was a nursing home close to the action where the National Guard troops needed to be, and they were housed there. And if a prison guard's barracks qualify as a home for purposes of the Third Amendment, I should think that the private room of someone in a nursing home would also qualify as a home. So that was probably quartering.

• 38:07Speaker 01

  Some communities expressed gratitude for the National Guard's help. But in other cases, civilians complained that the National Guard was heavy-handed and harsh in its efforts to maintain order. Soldiers commandeered private property for military use. In other cases, people alleged they looted and stole from the businesses they passed through, participating in the behavior they'd been sent to stop.

• 38:31Speaker 05

  This is not like what happened during the war for independence when there were redcoats in a lot of homes. It's not even as bad as the Aleutian Island instances, according to the court.

• 38:41Speaker 01

  Yes, right, right.

• 38:42Speaker 05

  But hey, the Constitution's not, oh, a little bit's okay. If it happens once, it's bad. It should be remedied. It looks like it probably happened. Looks like it wasn't remedied. Certainly no litigation.

• 38:52Rund Abdelfatah?

  When the founding fathers drafted the Third Amendment, their big concern was about standing armies, how a professional, nationalized military force could jeopardize the freedom of regular Americans. These days, our military doesn't have the same presence in civilian life. The Army, the Navy, and Air Force don't always respond to domestic crises, but the National Guard does. And the one time a Third Amendment violation was seriously considered by a U.S. court, in Angblom versus Carey, that case revolved around the National Guard.

• 39:28Speaker 05

  I think intervention by the National Guard soldiers, I think there is where we might see instances where the Third Amendment may be implicated.

• 39:36Rund Abdelfatah?

  Michael Smith again.

• 39:38Speaker 01

  In 2020, you you actually went back and kept track to every reference that's been made to the Thorne Amendment. What inspired you to do that? What was your goal in doing that?

• 39:48Speaker 06

  Well, I think part of it was, I was curious to see how often the Third Amendment comes up. I was then surprised when I started doing the research to see that it did come up a fair amount. If I were to do a year in review of every mention of the First Amendment, the Fourth Amendment, I'd have to write a book. I could get away with an essay, though, with the Third Amendment. But even then, surprising that there was an essay there.

• 40:11Speaker 01

  The Third Amendment came up several times in legal scholarship and court cases in 2020. Michael Smith says a lot of those cameos were footnotes, basically, offhand mentions or legal Hail Marys. But the Third Amendment did make one appearance in 2020 that really caught his attention.

• 40:30Speaker 22

  We're going to go to the scene of one of the demonstrations happening now here in Washington, DC.

• 40:38Speaker 23

  The chant Black Lives Matter is echoing across the country.

• 40:43Speaker 06

  So the the Black Lives Matter protests, protests relating to George Floyd broke out in the summer of 2020. There were extensive protests across the country. Protesters are chanting the name of George Floyd and the names of others who've died at the hands of police.

• 40:59Speaker 22

  Thousands of people have gathered near the White House to protest police brutality and racism.

• 41:05Speaker 06

  I was in Los Angeles at the time. I remember the curfews. I remember, you know, being, you know, required to stay stay in place, not just because of the pandemic, but also because you weren't allowed to go out except for limited purposes due to these extensive protests.

• 41:19Speaker 24

  On Monday and Tuesday, you couldn't go more than a few blocks without seeing officers from various federal agencies.

• 41:25Speaker 06

  The law enforcement would respond. In many cases, unfortunately, they would often escalate the protest through aggressive crackdowns on protesters, leading to more violent responses. You had this kind of escalation occur.

• 41:38Speaker 25

  President Trump seems to be testing out a theory that Americans care more about law and order than racial justice.

• 41:46Speaker 24

  He said he would send thousands and thousands of heavily armed military personnel. Against the wishes of governors if the governors didn't crack down or dominate, the word he uses over and over again, against the protesters.

• 41:59Speaker 06

  And sometimes things escalated so far that in came the National Guard.

• 42:03Speaker 26

  Federal forces had occupied parts of Washington DC in a brazen show of force in our city by the federal government.

• 42:15Speaker 06

  This occurred in Washington DC. The National Guard was called in from a variety of states and then began staying at various hotels in and around Washington DC.

• 42:25Rund Abdelfatah?

  Around this time, on June 3, 2020, The New York Times published an opinion piece written by Senator Tom Cotton from Arkansas. It was about the protests taking place around the country, and Cotton was calling for military intervention to deter rioters. The headline, written by The Times, read, "Send in the troops. The nation must restore order. The military stands ready."

• 42:52Speaker 23

  The Arkansas Republican urged President Trump to use military force to quell the protests sparked by the killing of George Floyd in police custody in Minneapolis.

• 43:02Rund Abdelfatah?

  The New York Times later issued an editor's note on Cotton's op-ed, saying that the essay fell short of its standards and should not have been published.

• 43:12Speaker 01

  By Thursday, June 4, 2020, thousands of National Guard troops from around the country were either already stationed in DC or making their way there. They were instructed to help repair damage to the city and to assist local authorities in responding to protests. The following day, the mayor of DC, Muriel Bowser, sent a letter to President Trump requesting that the federal government remove its military personnel from the city. She claimed the presence of additional military officers was, quote, "inflaming demonstrators."

• 43:45Speaker 27

  It's wrong to have the United States military on American soil to threaten Americans, and that's wrong.

• 43:54Rund Abdelfatah?

  And there was one more thing. Mayor Bowser made clear that the city of DC would not pay for hotel rooms to house the National Guard soldiers who'd been sent to respond to the protests.

• 44:06Speaker 28

  More than 1,000 active-duty soldiers who are on standby near the city were ordered home last night. D.C.'s mayor has been very clear about asking the president to remove all extraordinary federal law enforcement from D.C.

• 44:17Speaker 26

  I see myself as a defender of Washington, D.C. It's my job, and certainly I don't wake up in the morning wanting to have a Twitter tiff with the president of the United States. But I have to defend my population. And we also had to stand up for a principle, not just our own, but for our nation's peaceful protest as a hallmark of our democracy. And the federal government should not be advancing on Americans who are peacefully protesting.

• 44:50Speaker 06

  That got people talking about, have we crossed the line into Third Amendment territory?

• 44:55Rund Abdelfatah?

  Suddenly, the social media site X, at that time Twitter, was full of Third Amendment memes.

• 45:02Speaker 29

  It's called the Third Amendment, Brenda. Look it up. It's not the amendment we deserve, but it's the one we need right now.

• 45:11Rund Abdelfatah?

  A Facebook group called Third Amendment Rights Supporters grew by thousands of members, not to be confused with a separate group called Quartering Memes for Third Amendment Fiends.

• 45:22Speaker 01

  But there was also some more serious musing from the legal community. Michael Smith points out that Mayor Bowser never name-checked the Third herself, and even if she had, for there to be a Third Amendment case here, the hotel owners would probably have to be the ones to lodge a complaint, and no lawsuits came out of this incident.

• 45:43Speaker 06

  In reality, the real amendments being implicated were probably the Fourth Amendment, unreasonable searches and seizures. That covers excessive force. That's really what was doing probably the legal work. But if we see that escalating to the point where the Third Amendment is now being invoked in conversation and criticism, that may be a sign of passing a certain point, becoming particularly severe in the pushback from the government, and maybe a red flag that things really have gotten out of hand.

• 46:17Speaker 01

  Why does this go beyond the specifics of the legalese or just the question of quartering and, you know, housing soldiers? How could this apply or impact the lives of an everyday citizen? And why is it important for them to at least have a basic understanding of what this amendment means?

• 46:35Speaker 06

  It informs our other readings and interpretations of the Constitution. And again, provides this sort of legal ammunition against that sort of government overreach and extension. Another area where it might be a concern is the Supreme Court's recent turn to history and tradition in determining the scope of constitutional rights and restrictions. Sometimes there seems to be this desire by the court to be able to point to historical examples. And if you don't have that history, you don't have that litigation, there's just a lot less to draw on. And just generally, it's important to know it's there if we, God forbid, need it. Thank goodness, we don't see much Third Amendment litigation right now.

• 47:18Speaker 06

  That's not to say, though, that we ought to just disregard and declare the Third Amendment a dead letter. It is there in case things get quite unpleasant, in case things take that turn. Of course, will it be of much use if things really do get that dire and chaotic? Will the law, the Constitution itself, be of much effect in circumstances that chaotic? That, I think, is a separate matter of debate. But at least there's some hope there, that the Third Amendment might sort of prevent us from going that far, because it's there in the background, maybe informing how we approach other things.

• 47:56Speaker 01

  But isn't it, it's kind of a scary thing, though, that what you're saying here is that it's there, right? It's a kind of a backstop in case things get really bad. Well, I think many people in this country feel like we're closer to things getting really bad than we have been in a very long time.

• 48:13Speaker 06

  I think it can serve as an example of our fundamental values as a country when we're talking about not only protests, but government responses. I think there's going to be plenty of cases that don't implicate the Third Amendment, where the Third Amendment is relevant. Think generally about protests and maybe over-aggressive response by law enforcement. Think back, I think, also to 2020. You had the George Floyd protests, and you have, I think, in the New York Times, send in the troops.

• 48:39Rund Abdelfatah?

  Or the administration's recent deployment of the National Guard to LA.

• 48:44Speaker 06

  These, I think, those tendencies to escalate things, to see protests, to see chaos, and to urge an aggressive militarized government response, I think that's the wrong way forward. And I think our Constitution contains Plenty of evidence and fairly explicit evidence in the form of the Third Amendment that this is not a road we should go down.

• 49:20Rund Abdelfatah?

  Next up on our We the People series on amendments to the US Constitution, the Fifth Amendment and the right to remain silent. And that's it for this week's show. I'm Rundabda Fattah.

• 49:33Speaker 01

  I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.

• 49:38Rund Abdelfatah?

  This episode was produced by me.

• 49:40Speaker 01

  And me and?

• 49:42Rund Abdelfatah?

  Sarah Wyman. Casey Minor.

• 49:44Speaker 12

  Julie Kane. Ina Tae. Kiana Pakliwon.

• 49:48Speaker 11

  Lawrence Wu.

• 49:48Speaker 12

  Anya Steinberg.

• 49:50Speaker 11

  Devon Katayama.

• 49:51Speaker 12

  Rachel Horowitz.

• 49:52Rund Abdelfatah?

  Lina Mohammed. Kristina Kim. Irene Naguchi. Thank you to James P. Rogers, Johannes Dergi, Reese Walter, Edith Chapin, and Colin Campbell.

• 50:04Speaker 01

  Thanks also to the Beginning of Memory Project. You heard oral history interviews in this episode, conducted by Ray Hudson, with Eva Cherepanov, Nikolai Galakhtyanov, Nikolai Lakanov, and Irene McCarron.

• 50:20Rund Abdelfatah?

  Voiceover work in this episode was done by Devon Katayama, Jackie Wetzel, Tim Wetzel, Sarah Wyman, and Steve Wyman.

• 50:29Speaker 01

  Fact checking for this episode was done by Kevin Vogel. This episode was mixed by Maggie Luthar.

• 50:35Rund Abdelfatah?

  Music for this episode was composed by Ramtin and his band, Drop Electric, which includes?

• 50:41Speaker 30

  Navid Marvi. Cho Fujiwara.

• 50:43Speaker 00

  Anya Mizani.

• 50:45Speaker 01

  We would love to hear from you. Send us a voicemail to 872-588-8805 and leave your name, where you're from, and say the line, "You're listening to Throughline from NPR." And tell us what you think of the show. We might even feature your voicemail in a future episode. That number again is 872-588-8805.

• 51:12Rund Abdelfatah?

  And finally, if you have an idea or like something you heard on the show, please write us at [email protected]. Thanks for listening.

• 51:27Speaker 00

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