Throughline - We The People: Canary in the Coal Mine

Episode Date: August 22, 2024

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.Today on Throughline's We the People: 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.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from the NPR Wine Club, which has generated over $1.75 million to support NPR programming. Whether buying a few bottles or joining the club, you can learn more at nprwineclub.org slash podcast. Must be 21 or older to purchase. If you've heard of the Third Amendment, it might have been as part of a punchline. 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. It's the one about quartering troops, two words that have probably been rarely said side by side since about the late 1700s. But here's what it actually says. Amendment number three. 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. So in more modern terms. The army can't live in your house. Right. So at first glance, this amendment maybe doesn't come across as the

most relevant to Americans today. 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. People have thought of lots of possibilities. 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 101st Airborne. I even used it to get out of jury duty. You cannot quarter me in any jury. That's my Third Amendment right. And even the judge had to look it up. 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. 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. The Brown M&Ms backstage at a Van Halen concert. This is Professor Tom W. Bell, and he's got this analogy. Maybe you've heard of it. So Van Halen would come to these towns doing 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 in 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. We don't start unless you fix this. And I want everything looked at twice. 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. 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. 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. 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. The Third tells us about peace and war. It says nothing about the middle time, times of unrest. I'm Ramtin Arablui. And I'm Randa Abdel-Fattah. On today's episode of Throughline from NPR, the latest installment in our We the People series, where we look at the past, present, and future of amendments to the U.S. Constitution, why they were created, how they've

been enforced, and why fights over their meaning continue to shape life in the United States. 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. Hi, this is David Finkel in Rancho Palos Verdes. True Line 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.

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Journalist Domadi Pongo examines the strange death of Ruthie Mae McCoy in Candyman, the true story behind the bathroom mirror. Listen wherever you get your podcasts. 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 of Boston. 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. There is not the least doubt, but that as the cloud which threatens us gathers more thick over So in 1768, the crown sent over four regiments of troops to occupy Boston's city center. And the question of where to put those soldiers would spring the powder keg of revolution. Shortly afternoon 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 in 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. 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. Around the colonies, objections to quartering were becoming a rallying cry. 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 dragoon us into any measures which the arbitrary tools of ministerial power may think fit to impose.

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. 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.

And when they wrote the Declaration of Independence in 1776, the founding fathers addressed the issue of quartering head-on. He, the King of Great Britain, 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. This foreshadowed the Third Amendment. I'm Professor Tom W. Bell. He's a professor at the Fowler School of Law at Chapman University in Southern California. 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. We sat down recently to talk about the third. So let me give you a kind of more compact version of the third. It's really quite simple. All right. Okay. 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. Could you actually read the amendment for us first, and then we're going to go through and actually talk about what it means? 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. 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 medieval torturing. 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? 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 an for somebody somewhere, but I can't imagine. There's barracks. 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.

Okay. And 1131. Wow. Okay. And I don't think, you know, the right to not testify against yourself or even freedom of speech. They didn't have freedom of speech in 1131, but they did have troops being quartered specifically in this case on the people of London. And so London got what they call a charter. We still have charters today. Cities often have charters, but back then it was more like a kind of a constitution for a charter. 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, a very powerful city, of course, in England, got a charter from Henry I saying, stop quartering your troops in London. Other town and borough charters throughout Europe kind of followed that lead.

Even over in France, there 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 as purveyance, 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 the important part of English political developments that influenced the colonials, like it appears in the Magna Carta, Petition of Ride, the Anti-Quartering Act. These are all English. All the way up to the colonial time when, true to 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. By the time the Revolutionary War got going, both sides were relying on civilians for food and shelter. In the winter of 1777, British soldiers forced their way into homes in Philadelphia. They were also allowed to move into, quote, uninhabited houses, outhouses, barns, or other buildings. We were also in a time when there wasn't all that much of a professional military in place, certainly nothing near the apparatus that we have today. This is Michael Smith, an assistant professor of law at St. Mary's University in San Antonio, Texas. 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 closer to the front of the Bill of Rights. Was it controversial? Was it popular? What was its role right there at the beginning in the creation of the Constitution? It was popular. There were many different points of view about creating a new country. Nobody said, quartering's 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. It was interesting is it also follows in a lot of ways, the spirit of the first and second amendment. In some 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 it's the castle doctrine is later what was used in a different context but this idea that it's your it, you get to protect it, and the government shouldn't be able to kind of intrude on that sacred space. 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. 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? 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 is 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. The first time we know of was during the War of 1812, just over 20 years after the

Third Amendment was ratified. 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 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 are all over the place. 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 and said, you're going to pay for this. And they said, okay, we'll pay for it. 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. The Civil War. I mean, what war in U.S. 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. 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 two, get out. Nice eggs you got here, cheese two, scram. And then they burn it down. 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. 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. 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 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 doing this. What was a civil war? It wasn't really a war,

not in 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 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've done it themselves.

Coming up, a foreign army prepares to invade the United States. The Third Amendment is put to the test. Hi, this is Jacqueline from Tacoma, Washington, and you're listening to ThruLine from NPR. This message comes from Slow Burn, the Rise of Fox News, Slate's podcast that explores how a cable news channel became a cultural and political force, and how a whole bunch of people rose up to try and stop it. Follow wherever you listen to podcasts. This message comes from The New Yorker. Season 3 of In the Dark investigates a crime committed by U.S. service members and asks why no one was punished for it. The season uncovers a failure of justice that has never been fully understood. Listen to In the Dark wherever you get your podcasts. This message comes from The Lever, producers of the chart-topping history podcast Master Plan. Named a must-listen by The Guardian, Master Plan investigates the 50-year

plot to legalize corruption in America. Listen to Master Plan wherever you get podcasts. On June 3, 1942, six months after Pearl Harbor, American soldiers stationed in southwest Alaska watched Japanese planes fly overhead 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. The Aleuts, 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. In addition to their native culture, they were influenced by Russian trappers and traders who came through the area.

And most Aleutians at the time of these events were Orthodox, Orthodox Christians. In 1942, Alaska was not yet a U.S. state. But by the way, in case you're wondering, there is good law that tells us constitutional rights apply in territories. These Lucian Islanders had all the rights of any American living in Dubuque, in Washington, D.C., 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. The United States military pushes back. But

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 got to get you out of here. And we're going to displace you. We saw the kind of boat coming in, but we weren't sure, you know, which way down there. Eva Cherapanov was a child at the kind of boat coming in, but we weren't sure, you know, it's way down there. Eva Cherapanov was a child at the time of the evacuation. She and other Ononga talked about their experience in oral history interviews for the National Park Service as part of the Beginning of Memory Project.

They wake us up and they put us on the dock. Our arm is there on the line. They're watching us. We have just cried. I want my daddy. I couldn't see my daddy. Come on, we got a small thing in our hand. Our luggage. We didn't have a chance to get our luggage.

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, no clothes or nothing, just the way I'm wearing. I got on a boat. There was no time to take anything because you can't wait for those planes to come back and might bomb us, you know. That was terrible. Nearly 900 Unanga were forcibly evacuated from their villages. They were loaded onto transport ships and watched from a distance as the U.S.

military set fire to some of their homes and churches. Their cattle were rounded up and shot. As the Ononga sailed away from their ancestral lands, the horizon glowed. For two years, the Ononga 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 Anunga died of pneumonia and tuberculosis. Many of them were elders, and their traditional cultural knowledge died with them.

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. The U.S. 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. And then they move into their houses. The Aleutian Islanders 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. And they lost other things too, of course. They stole their possessions. Maybe that's not as bad as being evacuated, but troops are cornered in their homes. Violation of the 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. Okay, so they're evacuated. Many people die. When they come back, what do they see? These people have suffered displacement. They've lost their elders, their children. Now they're back in their towns, finally home. Where's their home? Their homes were destroyed, some blasted away by TNT,

others ransacked by soldiers, or simply left unprotected to the elements. After the war, after people were evacuated, was there any thought of going back to Makushin? No, I don't think so, because the house was already... Already wrecked. Yeah, and the rest of the roofs were all blown off. No stove on it.

Any one of them. Everybody moved out of the house and used it for the stove. Then they stole a lot of stuff, too. The Army stole a lot of stuff too. The army stole a lot of stuff. Yeah. A military police memo from 1944 described some of the homes like this. Inspection of contents revealed extensive evidence

of widespread wanton destruction of property and vandalism. Contents of closed packing 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. They didn't get checks. Nobody walked in and said, oh, sorry, here's a check. That had to wait until decades later. 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. 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 a check, you're not suing the suing the US government. You just signed away your rights by taking 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. But to the shame of my profession, no lawyer anywhere seems to have noticed, hey, this is a corner of troops during time of war and Congress isn't telling us how to do it.

This is pretty plainly a violation of 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. 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. 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 v. Carey.

Engblom v. 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. 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. 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 of Appeals said a number of interesting things about the Third Amendment. 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. It was time of peace, and there was quartering. You can't do that. That's bad. Secondly, the dorms. Those could be interpreted as homes. These rooms were homes within the scope of the Third Amendment. Barracks, it doesn't have to be like, you know, your mortgaged freehold estate.

If you're an apartment dweller, you're good to go. Right. But potentially the most significant part of this ruling concerned the National Guard. Before Engblom v. Kerry, it wasn't clear how literal a court would be when it interpreted the word soldier in the Third Amendment. But now we know. National Guard troops are troops. They told us that too. 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. This will become important later. But when it came down in 1982, the Engblom v. Carey ruling ended up being a little bit of an anticlimax. 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 Engblom versus Kerry. 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. So it's like they got like a free pass, like one free pass to say, you maybe didn't remember that this Third Amendment was there, but you can't do it ever again. 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. Coming up, a natural disaster sends the National Guard into a major American city. And the Third Amendment gets another look. Hi, my name is Joe McKernan. You're listening to ThruLine from NPR. This message comes from the podcast Offline.

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Power is 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. ...being blown sideways. Water is running through the streets. Winds clocked at 100-plus miles per hour are flinging debris through the air. Downtown high-rise hotels are swaying like ships at sea. This could be the worst flood that this country has ever seen. 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 the cleanup, but also to do things like provide police protection, prevent looting, and to place us 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. It was the largest domestic military deployment within'd been deployed, the National Guard slept in schools, convention centers, hospitals, hotels, and churches. 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. 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 Roger's 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. 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. 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, of course. Yes, right, right.

But hey, the Constitution is not, oh, a little bit's okay. If it happens once, it's bad. It should be remedied. It looks like it probably happened. It looks like it wasn't remedied. Certainly no litigation. 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, an Angblom v. Kerry, That case revolved around the National Guard. I think intervention by the National Guard soldiers, I think there is where we might see instances where the Third Amendment may be implicated. Michael Smith again. In 2020, you actually went back and kept track to every reference that's been made to the Third

Amendment. What inspired you to do that? What was your goal in doing that? 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. 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. We're going to go to the scene of one of the demonstrations happening now here in Washington, D.C. The chant Black Lives Matter is echoing across the country. So 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. Thousands of people have gathered near the White House to protest police brutality and racism. I was in Los Angeles at the time. I remember the curfews. I remember, you know, being, you know, required to 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. On Monday and Tuesday, you couldn't go more than a few blocks

without seeing officers from various federal agencies. 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. President Trump seems to be testing out a theory that Americans care more about law and order than racial justice.

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

Federal forces had occupied parts of Washington, D.C. in a brazen show of force in our city by the federal government. This occurred in Washington, D.C. The National Guard was called in from a variety of states and then began staying at various hotels in and around Washington, D.C. 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.

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. 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. By Thursday, June 4th, 2020, thousands of National Guard troops from around the country were either already stationed in D.C. 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 D.C., 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.

It's wrong to have the United States military on American soil to threaten Americans. And that's wrong. And there was one more thing. Mayor Bowser made clear that the city of D.C. would not pay for hotel rooms to house the National Guard soldiers who'd been sent to respond to the protests.

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. 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 is a hallmark of our democracy. And the federal government should not be advancing on Americans who are peacefully protesting.

That got people talking about, have we crossed the line into Third Amendment territory? Suddenly, the social media site X, at that time Twitter, was full of Third Amendment memes. 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. A Facebook group called Third Amendment Right Supporters grew by thousands of members, not to be confused with a separate group called Quartering Memes for Third Amendment Fiends. 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. 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. Why does this go beyond the specifics of the legalese or just the question of quartering

and 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? 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. 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. But isn't it a, 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 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. 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,

the New York Times send in the troops. I think those tendencies to escalate things, to see protest, 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. That's it for this week's show. I'm Randa Abdelfattah. I'm Ramtin Arablui, and you've been listening to ThruLine from NPR. This episode was produced by me. And me. And me.

And. Sarah Wyman. Casey Minor. Julie Kane. Ying Te. Kiana Paklion. Lawrence Wu. Anya Steinberg.

Devin Katayama. Rachel Horowitz. Lina Muhammad. Christina Kim. Irene Noguchi. Thank you to James P. Rogers, Johannes Dergi, Reese Walter, Edith Chapin, and Colin Campbell. Thanks also to the Beginning of Memory Project. You heard oral history interviews in this episode conducted by Ray Hudson with Iba Cherapanov, Nikolai Goloktianov, Nikolai Lakhanov, and Irene McCarran. Thank you. Music for this episode was composed by Ramteen and his band, Drop Electric, which includes... Navid Marvi, Cho Fujiwara, Anya Mizani.

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