The U.S. Supreme Court recently struck down Section 4(b) of the Voting Rights Act of 1965, which was the provision that singled out several states and counties—mostly in the Deep South—for special scrutiny regarding how they conduct their voting procedures, requiring that any changes thereof be cleared by the Justice Department.
The presumption—borne out by facts—was that such designated states and counties had rigged their voting rules, usually through literacy tests or poll taxes, in order to suppress the votes of black people and other minorities, a practice the Voting Rights Act was designed to stop and prevent.
The essence of the Supreme Court’s argument in invalidating Section 4(b) is that the law has achieved its desired purpose and today is no longer just or necessary. It is, rather, a mere relic of a bygone time.
While the accuracy and implications of this judgment have, themselves, fallen under careful scrutiny—can states such as Texas and Alabama truly be trusted not to disenfranchise certain people from voting?—the suggestion that a law that was once legitimate can become illegitimate, and thus subject to repeal, is an intriguing one and worth pondering further.
As a test case, let us consider the Third Amendment to the U.S. Constitution.
Admittedly, not many people at present are walking around considering the Third Amendment, at least not compared with Amendments One and Two.
That, in so many words, is my point.
The Constitutional clause in question—you may well have forgotten—concerns the “quartering” of troops in the homes of U.S. citizens. It reads, simply, “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.”
The background of, and justification for, this conjunction in the Bill of Rights is the pair of Quartering Acts, enacted by the British Parliament in 1765 and 1774, respectively, which stipulated that British troops could—and, in the proper circumstances, shall—be housed in private residences in the American colonies, whether the rightful owners of those residences liked it or not.
The latter iteration of this legislation was condemned by rebel American colonists as one of the so-called “Intolerable Acts” that were imposed as a response to the Boston Tea Party. Among the grievances in the Declaration of Independence was an attack on King George III for “quartering large bodies of armed troops among us.”
Accordingly, the Third Amendment can reasonably be seen as a direct response to a particular problem of a particular time. Given the realities of the epoch in which we now reside, we are entitled to ask: Has this law outlived its usefulness and relevance to the maintenance of the American republic, and therefore made itself a candidate for repeal? In the 21st century, is the Third Amendment nothing more than a solution in search of a problem?
Divorced from its original context and framed strictly in relation to the rest of the Constitution, the amendment and the rights it guarantees would seem to have been taken care of elsewhere.
The principles underlying the prohibition of quartering, we might agree, are the right to privacy and the protection against unreasonable search and seizure. The former is addressed in the “Due Process Clause” of the Fourteenth Amendment, while the latter is explicitly guaranteed by Amendment Number Four.
Is the threat of U.S. troops being stationed in private housing any more complicated than that? Were the proviso to be repealed, would anything actually change?
More than two centuries of American legal history prove the quartering amendment to have exerted extremely limited influence, indeed. To date, only one federal court case has ever been directly shaped by it: In Engblom v. Carey in 1982, the U.S. Court of Appeals for the Second Circuit ruled that New York State could not evict striking prison officials from employee housing and replace them with members of the National Guard.
That’s about it. Some amendment, eh?
It seems to me that if we are prepared, as we apparently are, to dismiss a central provision of the Voting Rights Act on the grounds that it no longer has any practical function in today’s world, it stands to reason that we might direct this attitude toward aspects of America law where it much more persuasively applies—not necessarily in the pursuit of justice, but simply in the pursuit of not clogging our law books with unnecessary piffle.