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We The People: Canary in the Coal Mine

47 min episode · 2 min read
·
Tom W. Bell

Episode

47 min

Read time

2 min

Topics

Startups, Crypto & Web3, Economics & Policy

AI-Generated Summary

Key Takeaways

  • Historical violations without remedy: The Third Amendment was violated during the War of 1812, Civil War, and WWII Aleutian Islands evacuation, where 900 Unanga people were forcibly removed and their homes occupied by troops, yet no legal cases were filed at the time.
  • National Guard as constitutional concern: The 1982 Engblom v. Carey case established that National Guard troops qualify as soldiers under the Third Amendment, making them the most likely violators since they respond domestically to disasters and civil unrest rather than foreign conflicts.
  • Gray zone between peace and war: The Third Amendment only addresses peacetime and declared war, creating a deliberate gap for civil unrest situations. The founders intentionally left this undefined, likely to preserve government authority during domestic rebellions and emergencies without constitutional constraints.
  • Enforcement gap reveals rights vulnerability: When prison guards' barracks were occupied by National Guard during a 1979 strike, courts ruled it violated the Third Amendment but imposed no penalties, establishing precedent that constitutional violations may go unpunished if officials claim ignorance.

What It Covers

The Third Amendment prohibits quartering soldiers in private homes without consent during peacetime. Despite seeming obsolete, it has been violated repeatedly throughout American history, from the War of 1812 to Hurricane Katrina responses.

Key Questions Answered

  • Historical violations without remedy: The Third Amendment was violated during the War of 1812, Civil War, and WWII Aleutian Islands evacuation, where 900 Unanga people were forcibly removed and their homes occupied by troops, yet no legal cases were filed at the time.
  • National Guard as constitutional concern: The 1982 Engblom v. Carey case established that National Guard troops qualify as soldiers under the Third Amendment, making them the most likely violators since they respond domestically to disasters and civil unrest rather than foreign conflicts.
  • Gray zone between peace and war: The Third Amendment only addresses peacetime and declared war, creating a deliberate gap for civil unrest situations. The founders intentionally left this undefined, likely to preserve government authority during domestic rebellions and emergencies without constitutional constraints.
  • Enforcement gap reveals rights vulnerability: When prison guards' barracks were occupied by National Guard during a 1979 strike, courts ruled it violated the Third Amendment but imposed no penalties, establishing precedent that constitutional violations may go unpunished if officials claim ignorance.

Notable Moment

Van Halen's contract required venues to remove brown M&Ms from backstage bowls as a test of whether safety protocols were followed, serving as a canary for larger problems, similar to how Third Amendment violations signal broader constitutional breakdowns.

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Episode Transcript

This message comes from Progressive Insurance. Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try it at progressive.com. Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states. If you've heard of the third amendment, it might have been as part of a punchline. I take the third all the time, every day. And then if somebody tries to call me on it, they go, well, what is the third? That's when I take the fifth. It's the one about quartering troops, two words that have probably been rarely said side by side since about the late seventeen hundreds. But here's what it actually says. Amendment number three. No soldier shall, in time of peace be quartered to any house without the consent of the owner nor in time of war But in a manner to be prescribed by law. So in more modern terms The Arnie can't live in your house. Right. So at first glance, this amendment maybe doesn't come across as the most relevant to Americans today. I've seen other examples in memes of you're dating someone and they're in the military, like, it's an excuse to, like, force them to go home or something like that. You know, say, third amendment. People have thought of lots of possibilities. And don't you thank God every day for that third amendment? The other afternoon, this was Tuesday, I was in my apartment and the buzzer rang, and it was the hundred and first airborne. I even used it to get out of jury duty. Yeah. Oh, you you you cannot quarter me in any jury. That's my third amendment. Right. And even the judge had to look it up. I don't think that is the entire story though, because there have been instances historically of, you know, quartering occurring where it just really didn't get litigated. It didn't make its way through the courts at all. In fact, the US government has gotten away with violating the third amendment several times since its ratification. And every time, it's gone largely unnoticed. The Brown M and M's backstage at a Van Halen concert. This is professor Tom w Bell, and he's got this analogy. Maybe you've heard of it. So Van Halen would come to these towns during these big concerts, and big concerts are big deals. There's a lot of heavy equipment. There's powerful electrical currents going around. It needs to be done right. And so Van Halen's attorneys put this clause in their multi page agreement with these venues. The clause said, backstage, there will be a bowl of M and M's with all the brown ones removed. Why did the attorney do that? It's not because these rock stars had some kind of fetish about non brown M and M's. No. It's because their smart attorney said, that's my canary. First thing attorney does visiting the venue, goes to the backstage, …

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