What part did [judges] act in preventing your houses (which by law are to every man a place of refuge and safety) from being made barracks for the soldiery? Did they execute the penal statute of our mother country against it, or did not some of the act a shameful neutrality while others united with power and in its very council abetted the illegal attempt?(1)
[A]ny property holder who currently farms his land, utilizes it for extractive purposes, or contemplates making improvements in the future must worry about the ESA.... The ESA, in short, is every property owner's nightmare.(2)
Many modern judges and scholars subscribe to a constitutional philosophy that treats the Constitution as a living document subject to 'contemporary ratification" that must be interpreted in light of society's "current problems and current needs."(3) Although we harbor some doubts about the wisdom of unmooring the Constitution from the Framers' intent and the specific words they chose for the Constitution's text, the widespread acceptance of this theory by constitutional scholars(4) led us to examine the consequences of a "living Constitution" analysis for the neglected Third Amendment.(5) Our conclusion is that, under a "living Constitution" theory, the Endangered Species Acts(6) (ESA) is unconstitutional because, through the ESA, the federal government "quarters" living creatures on privately held land, a position analogous to--and sometimes more serious than--the explicit textual ban on the peacetime quartering of soldiers imposed by the Third Amendment.
Although some readers may at first find the suggestion that the Third Amendment applies to the ESA humorous or silly,(7) we think it is no sillier than many of the "living Constitution" interpretations offered in the past for other portions of the Constitution's text.(8) Indeed, as one commentator on an early draft of this Article pointed out to us, the colonists who quartered British soldiers not only were forced to provide them with shelter but were also forbidden to shoot, or "take" in ESA parlance, the soldiers they quartered.(9) Even if no court ever adopts our analysis, considering the ESA in light of the Third Amendment offers a valuable insight into why many Americans find the ESA so burdensome and frightening. Understanding those burdens is the key to reforming the ESA so that it accomplishes what should be its primary objective: protecting endangered species in a sustainable way.(10)
In Part II, we briefly outline the "living Constitution" method of constitutional interpretation. In Part III, we describe the historical background of the Third Amendment and apply the "living Constitution" method to it. In Part IV, we describe the Endangered Species Act and the practical problems it creates for landowners. In Part V, we apply the principles developed in Part III to the Endangered Species Act. Finally, we examine how endangered species protection can be made both consistent with the Third Amendment and more effective at actually protecting endangered species.
THE "LIVING CONSTITUTION" AND CONSTITUTIONAL INTERPRETATION
The phrase "living Constitution" apparently first appeared as the title to a 1927 book by Howard Lee McBain.(11) The term has since been used in a variety of ways, from a justification of a broad style of judicial interpretation(12) to a narrow notion of applying established principles to new situations.(13) As we use the term here, "living Constitution" reflects the tradition inspired by the New Deal of a "dynamic, living Constitution, which changed as social and economic needs demanded."(14)
As articulated by one of its strongest advocates, former Justice William Brennan, the "living Constitution" method of interpretation rejects the notion that constitutional claims be upheld "only if they were within the specific contemplation of the Framers"(15) and rejects the restriction of "claims of right to the values of 1789 specifically articulated in the Constitution."(16) It also rejects the notion, which Justice Brennan termed "perhaps more sophisticated" than the "facile historicism" of originalism,(17) that courts must defer to the will of the majority expressed through the legislature. "It is the very purpose of a Constitution--and particularly of the Bill of Rights--to declare certain values transcendent, beyond the reach of temporary political majorities."(18) Thus, a "living Constitution" interpretation requires
an approach to interpreting the text [that] must account for the existence of these substantive value choices, and must accept the ambiguity inherent in the effort to apply them to modern circumstances. The Framers discerned fundamental principles through struggles against particular malefactions of the Crown; the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices.(19) The "ultimate question" of interpretation, therefore, must not be what the words literally say but "what do the words of the text mean in our time."(20) From this we can derive three principles of interpretation to use in our examination of the Third Amendment and the ESA:
(1) The Constitution's text informs interpretation but does not limit interpretation to the plain meaning of the text itself.
(2) The Constitution's meaning must be interpreted in light of the social realities of the present, not of 1789 or any prior moment.
(3) The Constitution must be interpreted to give effect to the principles expressed in the text in the context of contemporary social and political problems.
THE THIRD AMENDMENT
The text of the Third Amendment is straightforward: "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."(21) Unlike some of the other parts of the Constitution, this language appears to be straightforward and susceptible to a plain and obvious interpretation: the Founders did not want soldiers put into people's houses in peacetime without the homeowner's consent or during wartime without legal process.(22) And most accounts of the adoption of the Third Amendment take a fairly literal approach to the Amendment, such as that in Edward S. Corwin's The Constitution and What It Means Today: The Third (and Fourth) Amendments
sprang from certain grievances which contributed to bring about the American Revolution. They recognize the principle of security of the dwelling which was embodied in the ancient maxim that a man's house is his castle. There has never been an instance of an attempted violation of the prohibition.(23) However, this focus on specific words is inconsistent with the "living Constitution" analysis. The First Amendment's Free Speech Clause is also superficially clear--"Congress shall make no law ... abridging the freedom of speech"(24)--yet scholars and the courts have determined that the Framers did not mean "Congress,"(25) "no law"(26) or "speech"(27) when they wrote that provision. The Constitution's prohibition on bills of attainder(28) is another provision which, if taken literally, could be characterized as a "constitutional antique of little significance to today's world"(29) However, Justice Hugo Black argued that a liberal reading of the clause prohibits statutes denying pay to named employees,(30) government blacklists,(31) and denial of social security benefits to deported Communist aliens.(32)
Thus, plain meaning is not a bar, in this view, to understanding the principles behind the Third Amendment. To determine those principles, we need to briefly examine the history of the Amendment. In doing so, we must remember that we are not to be limited to the "precise, at times anachronistic, contours" erected by the English Crown's "particular malefactions"(33) in quartering soldiers. Rather we should strive to unearth the principles behind the Third Amendment's text as inspired by those malefactions.
The Colonial Experience with Quartering
Understanding the American experience with quartering(34) requires a brief survey of the contemporaneous practices in Britain,(35) for it was against British practice that Americans measured the burdens of quartering. Moreover, "[t]he American concern for protecting the rights of private homeowners against quartered troops was the product both of direct experience and their English political heritage."(36)
English town and borough charters, even before the Magna Carta, attempted to restrict quartering abuses, and these charters "are the major legal antecedents of the Third Amendment."(37) Three principles run through these charters as follows: quartering was to be done in accordance with established legal procedures; local civilians, not military commanders, were to decide where quartering would take place; and most importantly, quartering had to be voluntary.(38)
In reaction to a long history of abuses in England,(39) Parliament passed the Anti-quartering Act of 1679,(40) which forbade involuntary quartering, and the Mutiny Act of 1689,(41) which forbade quartering soldiers in private homes. The Mutiny Act did allow quartering "in Inns Livery Stables Alehouses Victuallinghouses" and the like,(42) but it failed to allocate funds to build sufficient barracks space.
Over time, military infrastructure developed and solved the quartering problem.(43) "In England and Wales troops were stationed in permanent camps, and when they took to the road, along a route determined by a civil official, the secretary at war, they found shelter according to the rigid specifications of the Mutiny Act in inns and public houses with which the country abounded."(44) In Scotland, however, public...