The Third Amendment
(Behavioral Conditioning and the Law)
Amendment III
of the Constitution“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 Federalist #8 by Alexander Hamilton, “These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people. “
There is a clear relationship between the discussion in the Federalist Papers concerning the role of troops and their potential threat to the freedom of people in the US and the Third Amendment of the Constitution. Clearly the framers of the 3rd amendment recognized the reality of something that today we should call behavioral conditioning. They were very aware of the effect of habit on the behavior of the citizens. Aristotle also recognized the importance of habit in shaping behavior, from his Ethics Book II,
“Virtue, then, being of two kinds, intellectual and moral, intellectual virtue in the main owes both its birth and its growth to teaching (for which reason it requires experience and time), while moral virtue comes about as a result of habit, whence also its name (ethike) is one that is formed by a slight variation from the word ethos (habit).“
The Framers saw this effect as both a threat and a benefit. Something which could be used to avoid the need of the abuse of force by the Federal Government and something which could potentially be used by the Federal government to destroy the freedom of the citizens.
The Federalist #27 again by Hamilton, discusses how the habit of working with the Federal Government in daily affairs would accustom the citizens to accepting its legitimate authority and prevent the need of military force to enforce that authority.
“I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.”
The Framers of the Constitution, the authors of the Federalist Papers, and the Framers of the Bill of Rights were very aware that nothing in human affairs is purely good or purely evil. That aspect of human nature which accepts as right whatever is customary could be a benefit which prevented the development of tyrannical force by the Federal Government and it could also be a tool which allowed the Federal Government to gradually accustom the people to accept tyranny. In these two quotes and the 3rd amendment it is clear that what is good in one instance is bad in another depending upon the specifics of the case.
This description of the proper exercise of authority by the Federal Government as a balance between too little and too much where too little requires excessive force and too much makes a slavish population is also described as a principle of individual education by John Locke in his “Some Thoughts Concerning Education”,
“Awe. -- A compliance and suppleness of their wills, being by a steady hand introduced by parents, before children have memories to retain the beginnings of it, will seem natural to them, and work afterwards in them, as if it were so, preventing all occasions of struggling or repining. The only care is, that it be begun early, and inflexibly kept to, till awe and respect be grown familiar, and there appears not the least reluctance in the submission, and ready obedience of their minds. When this reverence is once thus established (which it must be early, or else it will cost pains and blows to recover it, and the more, the longer it is deferred), 'tis by it, mixed still with as much indulgence, as they make not an ill use of, and not by beating, chiding, or other servile punishments, [that] they are for the future to be governed as they grow up to more understanding.”
There is a natural human confusion between governmental and parental authority. Locke spends some time in his “Second Treatise of Government” distinguishing the source and proper exercise of the two forms of authority.
“His command over his children is but temporary, and reaches not their life or property: it is but a help to the weakness and imperfection of their nonage, a discipline necessary to their education: and though a father may dispose of his own possessions as he pleases, when his children are out of danger of perishing for want, yet his power extends not to the lives or goods, which either their own industry, or another's bounty has made theirs; nor to their liberty neither, when they are once arrived to the enfranchisement of the years of discretion.”
Confucius identifies these closely together and this tendency is strong in the people of the US today who tend to want the Fed to act as a parent obligated to provide support and to expect the Fed to interfere in the lives of adults as though they were children. This tendency must be considered an abuse of the legitimate powers of the Federal Government.
It is good that the people should be accustomed to the legitimate exercise of the powers of the Federal government. Such familiarity makes the exercise routine and removes any necessity of the Federal government to resort to military force in the legitimate exercise of its authority. This removes a possible excuse for would be tyrants to use legitimate needs for the exercise of the Federal authority as an excuse to build a structure of force which could be used to impose a tyrannical government. This line of argument runs throughout the Federalist Papers. In order to prevent a Tyrant from using necessity as an excuse to assume absolute power, the Federal Government had to have sufficient power not to provide such an excuse by a weakness which created emergencies justifying tyranny.
This did not keep them from recognizing that it is bad for the Federal government to daily accustom its citizens by things like quartering troops in their homes, to mindless obedience of the Federal Authority.
Clearly it may be inferred from these examples that one of the intentions of the Framers of the Bill of Rights was to prevent the Federal Government from making laws and exercising its power in such a manner as to condition the Citizens to accept a sense of being subjects of an arbitrary authority. The first paragraph in the Bill of Rights makes it quite clear that the Bill of Rights is designed to restrict the powers of the Federal Government.
“The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;”
The Behavioral Conditioning effect of any laws passed by the Federal Government may be subject to review with respect to this intent.
To quote Aristotle in his Ethics, possibly his most famous general principal, “Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that which is intermediate. Hence in respect of its substance and the definition which states its essence virtue is a mean, with regard to what is best and right an extreme.”
One rational principle involved here is the understanding of how habit shapes human behavior. A second rational principle is that a government must have sufficient power to perform those tasks for which it is responsible. A third principle is that the government must not act in such a manner as to condition its Citizens to become Subjects. Such conditioning is a violation of Natural Law as advanced by Hobbes because Subjects are inherently weaker than Citizens and a government which reduces its Citizens to Subjects prepares its own destruction at the hands of a more vital society with a stronger and more vital population. There is a continuum here between insufficient exercise of Federal Power which creates national emergencies allowing a tyrant to assume totalitarian power, sufficient exercise of Federal Power which accomplishes the legitimate goals of the government, and excessive exercise of Federal Power which conditions the Citizens gradually to accept a tyrant. Virtue as usual lies in the middle course though possibly our language has no specific name for this virtue.
Does a given law tend to condition the people to accept the daily authority of the government to violate their freedom and make them into subjects rather than Citizens? If the answer is yes then the law violates the intent of the Bill of Rights. This doctrine would be a penumbra derived from the 3rd amendment and the Bill of Rights in general. Most of the other articles in the Bill of Rights can be interpreted as supporting this general principle. This article in particular was cited because of the available quote from the Federalist Papers, but almost all the other articles are similarly designed to prevent the abuse of Federal Authority from becoming so commonplace that the people become accustomed to it and thus gradually transition from Citizen to subject. This principle that the Constitutionality of a law may be judged by it’s behavioral conditioning effect on the Citizens has been used in the past by the SC as is cited in the section on why marriage was invented.
This is a principle which the People of the United States should bear in mind whenever evaluating the effects of any given law. As a general rule, the more laws there are, the more mindlessly the people must obey them. The fewer laws there are, the less conditioned the people will be to mindless obedience. In Ancient Greece many City States had an amusing custom. Whenever anyone appeared before the public assembly to propose a new law, he would be made to wear a noose about his neck. If his law was found unwise he would be hung immediately thus settling any future problems he might raise as well.
The tendency today is for the People to insist on Congress passing a new law every time there is a major television story. This multiplication of laws is destructive to the psychology of freedom. Possibly there should be a law making it illegal to pass any law within 6 months of a major media blitz on that subject. (Say do I see a party of outraged media commentators approaching me with nooses in hand?)
The Federal Government is not the only part of the environment which has a behavioral conditioning effect on the Citizens. To the degree that a Citizen must every day depend upon a local authority for his safety and submit to a local authority he is conditioned more towards being a subject and less accustomed to being a Citizen. In an agricultural society where each family owns its own land and most of every day is spent acting on their own authority in their own interests without obedience to any external authority there is very little customary acceptance of outside authority and interference.
Aristotle identified an agricultural population as the best basis for a stable democracy in his Politics Book VI Section IV,
“Of the four kinds of democracy, as was said in the in the previous discussion, the best is that which comes first in order; it is also the oldest of them all. I am speaking of them according to the natural classification of their inhabitants. For the best material of democracy is an agricultural population; there is no difficulty in forming a democracy where the mass of the people live by agriculture or tending of cattle.”
Aristotle attributed this observation to a different theoretical cause but it is still a valid observation and one which shaped many of the ideas of Thomas Jefferson. In a city where every day each person goes to work for a boss, calls the police for every minor alarm, depends on local municipal authorities for water and sewage disposal and is in every way regulated daily, the natural tendency to accept arbitrary authority is greater. The transition from a primarily rural society to a predominantly urban society has inevitably conditioned the People of the United States to a state of mind closer to that of subjects and farther from that of Citizens than existed in the first century or two of our history. This has greatly increased the probability that the United States will transition to some form of dictatorship in this century. This same change eventually precipitated the change from a Republic to a Principate in Rome. Similar changes precipitated tyrannies in various Greek City States and a long history of social upheaval in Athens. This history was well known to the Framers of the Constitution and Bill of Rights. The importance of the farmer as the backbone of a Republic is a truism long accepted by political philosophers.
These changes in our environment and the accompanying subtle changes in the attitude and culture of the people represent a real danger that we should be aware of and guard against. We cannot return to a primarily rural society. We must attempt to maintain the psychology and culture of individual freedom and self-reliance in a modern environment which is in many ways accidentally hostile to it. This is probably the greatest challenge facing the People of the United States today. Compared to it, the Wars on Terror, Drugs, etc. are mere tempests in a teapot. As a general principle because the current environment tends to condition the Citizens to become subjects, where any question exists about the effects of a law or policy, that which tends to strengthen the sense of Citizenship and reduce the sense of obedience to arbitrary authority must be preferred to that which tends to increase the sense of dependence on the State or the acceptance of its arbitrary authority.