Tweet
ARMENIAN GENOCIDE AND THE THIRD AMENDMENT
Concurring Opinions
September 13, 2011 Tuesday 4:47 PM EST
As Tom Bell has noted, the Third Amendment gets no respect. It is
as likely to be mentioned by comedians as by courts, and holds a
position of honor among the odd clauses of the Constitution, where
it is so infrequently used that even non-uses draw attention. But
this neglected amendment has one potential application today, where
it could play an important role in a somewhat high-profile case.
I'm talking, of course, about the Armenian genocide litigation.
Here's a snippet from a recent story in the Armenian Weekly (with
emphasis added):
In July, Armenian American attorneys sued the Republic of Turkey and
its two major banks, seeking compensation for confiscated properties
and loss of income. A new federal lawsuit was filed last week by
attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz,
along with international law expert Michael Bazyler, against the
Republic of Turkey, the Central Bank, and the Ziraat Bank for
"unlawful expropriation and unjust enrichment." The plaintiffs are
Los Angeles-area residents Rita Mahdessian and Anais Haroutunian,
and Alex Bakalian of Washington, D.C. The three Armenian Americans,
who have deeds proving ownership of properties stolen from their
families during the genocide, are seeking compensation for 122 acres
of land in the Adana region. The strategic Incirlik U.S. Air Base is
partly located on their property.
That's right. Armenian-Americans are seeking to recover property seized
by Turkey during the Armenian genocide. And significant portions of
that land are currently used to quarter American troops.
The Third Amendment mandates that, "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." Does
the Incirlik Air Base violate this provision? (Notably, Turkey has
ignored the lawsuit, resulting in a default judgment in favor of the
Armenian-American claimants.)
Based on my extensive reading in Third Amendment law [fn1], I think
the case may indeed raise Third Amendment claims - but mostly, it
brings up a complicated set of follow-up questions.
First, does the Third Amendment apply extraterritorially? This is
outside of my expertise. I wonder if Boumediene would apply here. Is
the U.S. air base enough control to extend Bill of Rights protections?
Second, what is the effect of the owners' absence when the air base
was built? I don't think that homeowners need to be living in a home at
the time of quartering for the amendment to apply. (On a related note,
the Engblom court notes that the Third Amendment does not require fee
simple ownership.) Presumably, the Third Amendment would give rights
to refugees who flee their homes, and return to find them occupied
by troops. However, other complicating factors here - particularly
the passage of time - may bar claims.
And third, if there is a Third Amendment violation, what is the
remedy? The amendment text itself doesn't specify. Bell argues that
the implied remedy for Third Amendment violations is similar to the
Takings clause, and might include "recompense for any lost value that
they could have exchanged on the market were it not for the government
having seized their property, including the rental value of their homes
and the value of any property stolen or destroyed." However, Bell also
notes that it "does not appear that the victims of quartering could
recover for what may be their most grievous injuries: being forced
onto the street, seeing strangers occupy and ransack their houses,
and homesickness."
At the very least, a Third Amendment claim would give
Armenian-Americans a claim not just against an unresponsive defendant
(Turkey) but also against the United States. This in turn could create
additional U.S. pressure on Turkey to provide reparations to Armenians,
or even to return the land in question.
All of which would be a welcome development for Armenian-Americans -
and a big win for the Third Amendment.
(Hat tip to my colleague Chris Guzelian for discussion which prompted
this post.)
http://www.concurringopinions.com/archives/2011/09/armenian-genocide-and-the-third-amendment.html
Concurring Opinions
September 13, 2011 Tuesday 4:47 PM EST
As Tom Bell has noted, the Third Amendment gets no respect. It is
as likely to be mentioned by comedians as by courts, and holds a
position of honor among the odd clauses of the Constitution, where
it is so infrequently used that even non-uses draw attention. But
this neglected amendment has one potential application today, where
it could play an important role in a somewhat high-profile case.
I'm talking, of course, about the Armenian genocide litigation.
Here's a snippet from a recent story in the Armenian Weekly (with
emphasis added):
In July, Armenian American attorneys sued the Republic of Turkey and
its two major banks, seeking compensation for confiscated properties
and loss of income. A new federal lawsuit was filed last week by
attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz,
along with international law expert Michael Bazyler, against the
Republic of Turkey, the Central Bank, and the Ziraat Bank for
"unlawful expropriation and unjust enrichment." The plaintiffs are
Los Angeles-area residents Rita Mahdessian and Anais Haroutunian,
and Alex Bakalian of Washington, D.C. The three Armenian Americans,
who have deeds proving ownership of properties stolen from their
families during the genocide, are seeking compensation for 122 acres
of land in the Adana region. The strategic Incirlik U.S. Air Base is
partly located on their property.
That's right. Armenian-Americans are seeking to recover property seized
by Turkey during the Armenian genocide. And significant portions of
that land are currently used to quarter American troops.
The Third Amendment mandates that, "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." Does
the Incirlik Air Base violate this provision? (Notably, Turkey has
ignored the lawsuit, resulting in a default judgment in favor of the
Armenian-American claimants.)
Based on my extensive reading in Third Amendment law [fn1], I think
the case may indeed raise Third Amendment claims - but mostly, it
brings up a complicated set of follow-up questions.
First, does the Third Amendment apply extraterritorially? This is
outside of my expertise. I wonder if Boumediene would apply here. Is
the U.S. air base enough control to extend Bill of Rights protections?
Second, what is the effect of the owners' absence when the air base
was built? I don't think that homeowners need to be living in a home at
the time of quartering for the amendment to apply. (On a related note,
the Engblom court notes that the Third Amendment does not require fee
simple ownership.) Presumably, the Third Amendment would give rights
to refugees who flee their homes, and return to find them occupied
by troops. However, other complicating factors here - particularly
the passage of time - may bar claims.
And third, if there is a Third Amendment violation, what is the
remedy? The amendment text itself doesn't specify. Bell argues that
the implied remedy for Third Amendment violations is similar to the
Takings clause, and might include "recompense for any lost value that
they could have exchanged on the market were it not for the government
having seized their property, including the rental value of their homes
and the value of any property stolen or destroyed." However, Bell also
notes that it "does not appear that the victims of quartering could
recover for what may be their most grievous injuries: being forced
onto the street, seeing strangers occupy and ransack their houses,
and homesickness."
At the very least, a Third Amendment claim would give
Armenian-Americans a claim not just against an unresponsive defendant
(Turkey) but also against the United States. This in turn could create
additional U.S. pressure on Turkey to provide reparations to Armenians,
or even to return the land in question.
All of which would be a welcome development for Armenian-Americans -
and a big win for the Third Amendment.
(Hat tip to my colleague Chris Guzelian for discussion which prompted
this post.)
http://www.concurringopinions.com/archives/2011/09/armenian-genocide-and-the-third-amendment.html