Armenian genocide and the Third Amendment

As Tom Bell has noted, the Third Amendment gets no respect. It is as likely to be mentioned by comedians as by courts, and holds a position of honor among the odd clauses of the Constitution, where it is so infrequently used that even non-uses draw attention. But this neglected amendment has one potential application today, where it could play an important role in a somewhat high-profile case.

Etchmiadzin CathedralI’m talking, of course, about the Armenian genocide litigation.

Here’s a snippet from a recent story in the Armenian Weekly (with emphasis added):

In July, Armenian American attorneys sued the Republic of Turkey and its two major banks, seeking compensation for confiscated properties and loss of income. A new federal lawsuit was filed last week by attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz, along with international law expert Michael Bazyler, against the Republic of Turkey, the Central Bank, and the Ziraat Bank for “unlawful expropriation and unjust enrichment.” The plaintiffs are Los Angeles-area residents Rita Mahdessian and Anais Haroutunian, and Alex Bakalian of Washington, D.C. The three Armenian Americans, who have deeds proving ownership of properties stolen from their families during the genocide, are seeking compensation for 122 acres of land in the Adana region. The strategic Incirlik U.S. Air Base is partly located on their property.

That’s right. Armenian-Americans are seeking to recover property seized by Turkey during the Armenian genocide. And significant portions of that land are currently used to quarter American troops.

The Third Amendment mandates that, “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.” Does the Incirlik Air Base violate this provision? (Notably, Turkey has ignored the lawsuit, resulting in a default judgment in favor of the Armenian-American claimants.)

Based on my extensive reading in Third Amendment law [fn1], I think the case may indeed raise Third Amendment claims — but mostly, it brings up a complicated set of follow-up questions.

First, does the Third Amendment apply extraterritorially? This is outside of my expertise. I wonder if Boumediene would apply here. Is the U.S. air base enough control to extend Bill of Rights protections?

Second, what is the effect of the owners’ absence when the air base was built? I don’t think that homeowners need to be living in a home at the time of quartering for the amendment to apply. (On a related note, the Engblom court notes that the Third Amendment does not require fee simple ownership.) Presumably, the Third Amendment would give rights to refugees who flee their homes, and return to find them occupied by troops. However, other complicating factors here — particularly the passage of time — may bar claims.

And third, if there is a Third Amendment violation, what is the remedy? The amendment text itself doesn’t specify. Bell argues that the implied remedy for Third Amendment violations is similar to the Takings clause, and might include “recompense for any lost value that they could have exchanged on the market were it not for the government having seized their property, including the rental value of their homes and the value of any property stolen or destroyed.” However, Bell also notes that it “does not appear that the victims of quartering could recover for what may be their most grievous injuries: being forced onto the street, seeing strangers occupy and ransack their houses, and homesickness.”

At the very least, a Third Amendment claim would give Armenian-Americans a claim not just against an unresponsive defendant (Turkey) but also against the United States. This in turn could create additional U.S. pressure on Turkey to provide reparations to Armenians, or even to return the land in question.

All of which would be a welcome development for Armenian-Americans — and a big win for the Third Amendment.

(Hat tip to my colleague Chris Guzelian for discussion which prompted this post.)

(Image credit: Wikicommons photograph of the Etchmiadzin Cathedral.)

[fn1] “Extensive reading in Third Amendment law”: I read Tom Bell’s article and the Engblom opinion.

You may also like...

8 Responses

  1. A.J. Sutter says:

    You don’t address the issue of “be[ing] quartered in any house”. It’s not clear why any claim would arise under the 3rd Amendment, unless US soldiers were actually quartered in those houses. Is that the situation? Or were those taken and demolished in connection with building the base? If the latter, wouldn’t this really be a Takings Clause case after all?

    BTW, in that takings situation, would the timing of the plaintiffs’ residence in America matter? E.g., suppose the plaintiffs’ families went to Russia or France or Iran, etc., and were still there at the time the property became a base (more than 50 years ago). Do they have a Takings Clause claim once they move to the US? It looks as if this issue would not arise if the Third Amendment were indeed applicable, provided that the occupation of the houses was continuing for some time during their residency in the US, regardless of when it arose. There is a sort of aspectual difference between taking and quartering (though that difference might be lexical rather than grammatical, for all I know).

  2. Lurker says:

    This depends on how widely you interpret the 3rd amendment. You might construe the prohibition widely, or construe it to mean only the actual quartering of soldiers in a private apartment.

    In fact, the original process of quartering soldiers in a person’s house did not necessarily mean evicting the owner or ransacking his movable property. Instead, the soldiers were supposed to live with the owner and his family. Basically, you might have a squad of soldiers sleeping in your livingroom, two under your kitchen table, and a soldier or two on the mat by your and your spouse’s bed and maybe a few in the rooms of your children. They might cook on your kitchen stove. If they were disciplined and under proper command, no intentional property damage would happen. This is, of course, still a gross violation of one’s privacy and property, but of such type that is easily discernible. (I’m from Finland. We didn’t repeal legislation authorising and regulating such quartering of soldiers until 2007, although it was last applied in 1920’s.)

    Instead, appropriating a piece of land as a military base is use of eminent domain. (Here, the Turkish government was misusing its eminent domain in evicting the plaintiffs without compensation which is a separate question.) It is a violation of property, not of personal privacy. Thus, the violation falls under the takings clause, not under the quartering clause.

    So, I am arguing: if a person is evicted from his property that is then being used to quarter soldiers in a base built at that property, that is use of eminent domain and does not violate the Third Amendment but the Takings Clause. The Third Amendment can be violated only if military persons are being quartered in a dwelling that is being occupied more or less permanently. And I would construe “soldiers” to mean also other federal employees and a “house” to mean also other dwellings but not storage spaces or industrial facilities.

  3. Joe says:

    The 3A seems to be concerned with a specific wrong: some sort of partial unwanted use of domestic space, not “confiscated properties” as such. This opens a wider interpretation than the literal terms but only so far. The 4A speaks of “seizure” and the 5A speaks of “takings.” The 3A covers a more limited ground, if one with its own concerns.

    The Supreme Court has of late favored using the more direct constitutional provisions instead of more loose claims and those other two amendments would seem to be more appropriate.

    IF we think the U.S. should be liable here, I would say that it is more a wrongful total taking of property. The base is on property that the U.S. (so the claim might go) should know is not legitimately received. They do not claim merely to be “quartering” on property that these people still have rights over. They seized it totally.

    The 3A would at best only come up if the US actually claimed merely to be quartering on property that is in private hands. For instance, if an army patrol took over part of a private home in a designated US military area during a campaign, maybe — though the extraterritoriality issue might arise — the 3A might arise. Here, not so much.

  4. A.J. Sutter says:

    Lurker: I think we come to the same conclusion, albeit by different routes. But I think in the US context it may be anachronistic to distinguish the Third Amendment as protecting a privacy interest, since privacy rights weren’t given a constitutional status until the 1960s, and were located variously in in the “penumbras” of the other rights or in the 9th and 14th Amendments. Regardless, if the houses were razed, then it sure does look like a taking.

  5. Joe says:

    “since privacy rights weren’t given a constitutional status until the 1960s, and were located variously in in the “penumbras” of the other rights”

    This isn’t really true. A search will show that various cases before Griswold recognized that the 4A in particular was about “privacy” rights in part and the importance of “privacy” was recognized back to at least the 19th Century with protection of “private” correspondence that was seen as both a 1st and 4th Amendment interest.

    Griswold cited how the court had already recognized privacy interests in constitutional cases.

  6. Joe says:

    Joseph Story in his commentaries:

    “This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”

    This is a common metaphor — the house is like one’s castle, his own, not for the state to enter. It is private property & the wrongs of quartering was that the state invaded such privacy, including the quiet of one’s family life. It is an invasion of “private rights” (also repeatedly cited). Griswold worked off such “privacy” concerns and though a general right to privacy might not have been recognized, certain privacy interests clearly were.

  7. A.J. Sutter says:

    I yield — thanks for the correction. I don’t think it changes the point about anachronism, though; and given that we’re talking about an air force base without evidence of actual quartering, even the point about the anachronism was academic.

  8. A.J. Sutter says:

    Sorry, my #7 was replying to #5; in light of #6, maybe I should have yielded some more.