Dusting Off the Third Amendment: A Creative Response to Domestic Spying

Fourth Amendment arguments against the NSA surveillance programs are plentiful these days. The general perception by the public, and numerous government officials, is that warrantless surveillance and data mining is an unconstitutional search and seizure under the Fourth Amendment. However, the existence of secret FISA courts could prove to be an impediment to Fourth Amendment challenges, which is why it’s time to dust off the often neglected and forgotten Third Amendment.

“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.”

This straightforward amendment, originally written as a response to the British military forcibly seizing residences for troop quartering, has gained new relevancy. Let’s walk through the argument step by step.

First, we are not currently in a congressionally declared war, therefore we are technically in peacetime, which precludes any national security arguments to the domestic spying program. Second, the National Security Agency is not a purely civilian agency; they operate in partnership with the Department of Defense, the Central Intelligence Agency, and other governmental entities, making agency personnel an extension of combatants, and therefore “soldiers.” Thus far, Congress has not authorized wide spread domestic spying of American citizens, leaving no legal ground for the agency to stand on under the Third Amendment. Finally, I believe that the NSA surveillance technology is a proxy for an intelligence agent residing in your home, constantly monitoring your actions without consent. There is no fundamental difference between the NSA’s data mining and eavesdropping operations and a live in agent listening to all your conversations and downloading your browser history. We are all harboring a governmental presence in our homes, without our consent, in what I believe to be a direct violation of the Third Amendment; if our founders were here today I believe they would agree.

I am not the only one to reach this conclusion. Constitutional law professor Glenn Reynolds recently came to a similar conclusion in a column written for USA Today, in which he states,

“It’s our right as American citizens to have privacy in our own homes.”

Privacy and freedom from literal intrusive government is at the heart of the Third Amendment, and at the roots of its foundation. The NSA’s domestic spying program is in violation of the Third Amendment, both directly and in spirit, and should therefore be declared unconstitutional by any court who still holds our fundamental rights sacred.