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Soldiering Endangered Species

March 31, 2006

Some legislative efforts are being made to require the government to pay just compensation for takings done in the name of endangered species (example). But none of these efforts have so far considered the relevance of the third amendment.

Many years ago, Justice William Douglas said, "a few provisions of our Bill of Rights, notably the Third Amendment and its prohibition against quartering of soldiers in private homes, have no immediate relation to any modern problem. Most of the other guarantees against government are, however, as important today as they were when first adopted."

Since Americans aren't forced to house soldiers on their property, few would dispute that evaluation. However, we are in an era when important property rights protections against government abuse are eroded on behalf of not just government bodies and those they favor, but also fairy shrimp, the Delhi Fly, and other creatures the government has chosen to shelter. And in this area, the Third Amendment is instructive. Under particular attack from government policies has been the Fifth Amendment's Takings Clause: "nor shall private property be taken for public use without just compensation." Not only has the Kelo case removed almost all its restriction of takings to "public uses," but the meaning of "taken" has also been eviscerated by Supreme Court rulings that the government has not taken something as long as the owner is allowed to retain any productive use of it.

This means, among other things, that courts do not consider forcing property owners to bear the cost of providing habitat to any of a host of species as takings, requiring compensation, as long as they are not complete takings of the property involved (even if it only leaves the potential of future use). As Justice Steven's expressed the principle in Tahoe-Sierra Preservation Council, compensation was due owners only in "the extraordinary case in which a regulation permanently deprives property of all value." In criminal law, that would mean that a mugger who left you cab fare home or a burglar who didn't take everything you own did not rob you.

This tortured logic is why we must re-examine the Third Amendment for the insights it offers into the Fifth Amendment.

The Third Amendment's guarantee that "No solider shall, in time of peace be quartered in any house, without the consent of the owner" came in reaction to an earlier British threat to impose such a burden on American colonists. But today it helps us understand the Fifth Amendment's Takings Clause, because it expressly prohibits even a partial government taking of property—the value of that part of one's property taken by the requirement to quarter a soldier in it—even in pursuit of one of the federal government's few constitutionally enumerated functions—providing for the common defense.

The Third Amendment reflects our founders' view that takings are not limited only to complete takeovers of property by government, but also include taking part of a property's value, even if legal ownership was left in the hands of the owner. As John Adams said in Defense of the Constitutions of Government of the United States of America, "Property is surely a right of mankind as real as liberty...The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."

Without such an understanding that "partial" as well as complete takings of property are to be beyond government power, even for an enumerated role of the federal government (much less for purposes nowhere enumerated), constitutional property rights guarantees can be eroded to virtual worthlessness. As Justice Oliver Wendell Holmes noted in Pennsylvania Coal: "The protection of private property in the Fifth Amendment...provides that it shall not be taken for such use without compensation...When this seemingly absolute protection is qualified...the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But it cannot be accomplished in this way under the Constitution of the United States."

Court failures to recognize partial takings of property for what they are has handed legislators and regulators far too much discretion for a country where they are to be citizens' servants rather than their masters. Rediscovering that fact and connecting the logic of the Third Amendment back to the Fifth Amendment would rein in a major source of government abuse of its citizenry.

To see the logic involved, consider the constitutional implications if Congress was to pass a law declaring that fairy shrimp (or any other species) were to be considered soldiers of the United States. That would make the Endangered Species Act as currently applied constitutionally invalid. Forcing owners to quarter members of the species on their property without compensation would then violate the Third Amendment.

While treating members of species as soldiers in this way is obviously a stretch, it is far less of one than the linguistic distortions and "emanations from penumbras" that the courts have used to undermine seemingly clear constitutional principles and protections. That is particularly the case, because what would be unconstitutional in pursuit of the enumerated federal function of national defense cannot be acceptable for purposes authorized nowhere, such as species protection. At a time when the Supreme Court is unwilling to enforce vital property protections otherwise, it would move us far closer to our founders' view of government takings than we are now, when every property owner remains continually at risk of government expropriation.

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