I was reading a legal article about the doctrine of incorporation and it said that the Third Amendment is not incorporated. Which surprised me.
I realize that the Third Amendment isn’t the subject of a lot of case law. But one of the few notable cases involving that amendment is Engblom v Carey. And the decision in that case clearly said that the amendment applies to state governments as well as the federal government. Doesn’t that mean it’s incorporated?
Is there some subtle distinction about incorporation that I am missing? Or is incorporation something only the Supreme Court can do officially? If so, what is it called when a lower federal court rules that a constitutional amendment applies to the states?
The Wiki on Engblom v. Carey says that it was ruled that the Third Amendment is incorporated:
" In a 2-1 decision by a three-judge panel, Engblom articulates three principles that apply to challenges under the Third Amendment. First: national guardsmen are considered soldiers for Third Amendment claim. This holding extends Third Amendment protections beyond federal armed forces such as the army to include the state-regulated militia. Second: the Third Amendment is incorporated and thus applies to individual states as well as the federal government. This holding extends Third Amendment protections beyond federal use of the national guard to include state use of the national guard. Third: the protections of the Third Amendment apply beyond fee simple homeownership. This holding interprets the Third Amendment as protecting those who have general control over access to a property."
It is incorporated in the Second Circuit where Engblom v. Carey was decided. In any future case, a Second Circuit panel would be bound by stare decisis to apply that holding. An en banc panel or the Supreme Court could reverse it.
The short, short version is that mid-century there were competing schools of thought between: 1) the first eight amendments to the BOR are all binding on the states, and 2) nah, some of these things are really federal in nature, so we have to look at them one by one. #2 won out despite protests of some justices.
Notably, the grand jury requirement of the Fifth, and the civil trial by jury of the Seventh are not incorporated, but those are largely procedural. The Second was only incorporated in 2010 and there were 4 dissents in that case, so it is not unusual for even part of the BOR to have substantial argument against incorporation. The excessive fines clause of the Eighth was only incorporated in 2018.
The Third Amendment was an anachronism almost the day it was passed. For all of the issues we have had in this country, the forced quartering of soldiers has never been one of them so I personally find it unsurprising that no case has ever reached SCOTUS about it. In fact, I find it amazing that it came up during the prison riots.
But I’m all too aware of how authoritative Wikipedia is as a source. Especially in this case because I wrote a substantial portion of the Engblom v Carey article (but not the part about incorporation).
The legal article I read is this one and I assume Cornell Law School is a more reliable source than Wikipedia.
So my idea that only the Supreme Court can officially incorporate an amendment is correct? If so, the issue seems to be one of geography. The Second Circuit’s decision in Engblom was appealed to the Supreme Court and they declined to hear it; to me, that says that the Engblom decision is now a final ruling. But as you note, it only applies to Connecticut, New York, and Vermont.
Yes, and if you think about what incorporation means, that is a court ruling that is binding on every state in the union, that could only be the Supreme Court that could issue such a ruling.
And yes, Engblom is final and binding in the Second Circuit. If you lived in VT and had a fact scenario and wanted to allege that the State of Vermont was quartering state troopers in your home, the District Court would be bound by mandatory controlling precedent to hold that the Third Amendment was incorporated against VT.
If you lived in Colorado under the same scenario, you could argue that Engblom was good persuasive authority that the local district court should follow, then that is a very good argument, but that court would be free to say, “We have read Engblom and are not persuaded by its reasoning. We find that the Third Amendment does not apply to Colorado.”
When you get such a split of authority, that makes it more attractive to the Supreme Court to take the case especially when it is a matter of great public importance, we need uniform federal law.
That’s the issue. I didn’t know if incorporation meant an amendment was binding on states or binding on every state.
Has there ever been a case where the Supreme Court explicitly split incorporation? A case where they ruled that an amendment was incorporated in some states but not in others?
It’s a pretty binary analysis – either the Fourteenth Amendment incorporate the provisions against the state or it didn’t.
The Second Circuit (and the district court) in Engblom clearly held that the Third Amendment is incorporated against the states, which means all the states. The wrinkle is the the Second Circuit opinion is only binding in the Second Circuit; it is reversible at will by the Supreme Court and, in some circumstances, by the Second Circuit, itself.
So I think it’s a semantic problem – when we say a provision has been incorporated, we mean that the Supreme Court has so held. (Interestingly, many, if not most, incorporation decisions came on appeal from the state supreme court, so that the Supreme Court was the first federal court to address the question in that case).
Is it? The Second Circuit decision was appealed to the Supreme Court and they decided not to hear the appeal. Doesn’t that make the Second Circuit decision the official final ruling on the subject?
A denial of cert is not a ruling on the merits. The Second Circuit decision would be the final ruling in the case, but it remains a Second Circuit decision. (Although, here, it wasn’t the final ruling in the case).
Also, as far as I can tell, review was not sought in the Engblom case. The Second Circuit remanded the matter back to S.D.N.Y, which issued a new opinion, which was then affirmed by the Second Circuit. I don’t see any subsequent history that would indicate that a cert petition was filed.
This has been answered, but I am trying to think of a factual situation in which this would be appropriate or possible. Did you have one in mind? IOW, a case where the Court says, yes, you Virginia, Maryland, and Maine have to give your citizens the benefits of this particular provision of the BOR, but Georgia, North Carolina and California, no worries.
What if there were a case that involved one state’s power (or lack thereof) to quarter troops, but under the jurisdiction of the courts in another state? Just spitballing here, but maybe there’s a natural disaster in one of the states on the border of the Second Circuit, and the governor requests help from neighboring states’ National Guards to help handle it (and those other states grant the request)? So you could have guardsmen from a non-2nd-circuit-state acting in a 2nd-circuit-state (or vice-versa), and those guardsmen need to be put up somewhere while they’re there.
The answer should be that the law of the circuit where the quartering is happening will govern. At least, I’m assuming that the plaintiff will sue in the district where he is located and the relevant acts occurred.
But this isn’t a situation where there is conflicting circuit law (those exist); I wouldn’t discount the possibility even if this was brought in the First Circuit that they wouldn’t come to the same conclusion.
Okay, I may be wrong on that one. I recall reading that the Engblom decision had been appealed to the Supreme Court (which declined to hear the appeal) but now when I look for a cite of this, I can’t find it.
That said, I found it hard to find any information about cases the Supreme Court declined to hear. Is there some place I can look to find that information?
On the other issue, if the Supreme Court does decline to hear an appeal on a decision of a lower court, does that constitute a final action on the case? I would have thought so but I could be wrong. Can somebody file multiple appeals on the same decision and hope that one of them is accepted? Or can the Supreme Court later decide to hear an appeal it had previously declined to hear?
That’s not an incorporation issue. That would be the interpretation of a statute passed by Congress pursuant to its 14th and 15th Amendment enforcement powers.
And even then, there is a presumption of “equal footing” among the States. Any formula that applied to one state and not another would have to be based upon objective criteria that the first state had an issue with whatever the issue at hand was while the second did not. Even the formula struck down in Shelby County didn’t just specify “South Carolina” and “not Kansas.” It had what purported to be an objective formula, but the flaw, according to the Court, was that the formula would always include states for what they had done in the 1960s and not at the present.
But incorporation talks about the applicability of the right itself. I can’t imagine why the citizens of one state should be protected against their own state with regard to X but citizens of another state should have no protection.
The denial of cert is likely to be the end of the appeal for that particular appealable order. What that means for the case depends on the posture of the case, but most of the time the appeal is from a final order.
Sometimes the Supreme Court will “hold over” a case (and not make a decision) if it wants to consider it later – sometimes many times. You can file a motion for reconsideration on a cert denial within 25 days, and I suppose it’s possible that you could prevail. But basically, no, the court won’t revive the case after they dispose of it.