Incorporation of the Third Amendment
bobsheridan at earthlink.net
Thu Mar 17 22:30:11 PST 2005
In looking at the paragraph of Griswold in which the "penumbras, formed
by emanations" words appear, Justice Douglas states "Various guarantees
create zones of privacy." Then he lists four:
1. "The right of association contained in the penumbra of the First
2. "The Third Amendment in its prohibition against the quartering of
soldiers "in any house" in time of peace without the consent of the
owner is another facet of that privacy."
3. "The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him
to surrender to his detriment."
4. "The Ninth Amendment provides: "The enumeration in the Constitution
of certain rights, shall not be construed to deny or disparage others
retained by the people.
End of para; (introductory numbers added.)
Supposing that the Third Amendment has never been held to have been
incorporated for the reason Prof. Laycock observes, lack of a decided
case in the High Court (and apart from a 2d Circuit case), there is no
suggestion as far as I have looked (this paragraph) that the 3rd needs
to be incorporated for Justice Douglas's argument to be valid. He's
saying that the above-listed amendments protect more than they declare.
What they (1st, 3rd, & 5th-in part) describe, as I read the paragraph,
are subsets of a broader value, privacy, which Douglas sees and sets
forth. I don't see why the 3rd would have to be incorporated for the
argument to be valid. The argument seems just as good either way,
whether the 3rd Amendment is deemed incorporated or not, unless I'm
missing something. Douglas thus appears to be using privacy in general
to strike down a state law even if one of the amendments which is a
subset of the broader value restricts only the federal government. He
doesn't need to address that question, I don't think, and doesn't appear
to do so.
Carlton Larson wrote:
> All the con law casebooks that I've looked at state that the Third
> Amendment has never been incorporated. But how does that square with
> Griswold? There, the Court found, in striking down a state law, that
> the Third Amendment, among others, emitted a penumbra relating to the
> right of privacy. Doesn't that suggest that the Third Amendment must
> apply to the states? Otherwise, how could the Court rely on it in
> part to strike down a state law? Or I am missing something obvious?
> Carlton Larson
> UC-Davis School of Law
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