We all recognize that the home is a special place. It even has been said, "A man's home is his castle." As such, are activities that take place in the home deserving of special protection under the Constitution?
As an introduction to our discussion, we have included Justice John Harlan's thoughtful discussion in Poe v Ullman (1961) of the place of the home in American constitutional law. (Harlan argued that a Connecticut ban on the use of contraceptive unconstitutionally invaded the privacy of the home. A few years later in Griswold v Connecticut, the Court would strike down the same law.)
The word "house" appears twice in the text of the Bill of Rights, indicating the concern of Madison and other drafters for the protection of privacy in the home.
The Third Amendment prohibits, in time of peace, the quartering of soldiers in "any house without the consent of the owner." This amendment was a reaction to pre-Revolution British quartering laws that were enormously unpopular among Americans. Not surprisingly, the Third Amendment has produced little litigation, although it was the basis for an interesting Second Circuit decision, Engblom v Carey (1982), that found the right to be made applicable to the states through the Fourteenth Amendment and potentially violated by New York's decision to temporarily house National Guard soldiers in prison guards' onsite housing during a prison staff strike. (Judge Kaufman, dissenting, concluded that the state-owned housing units involved in the case were not "houses" for constitutional purposes: "Although a man's home is his castle under the Third Amendment, it is not the case, as Gertrude Stein might say, that a house is a house is a house.")
The Fourth Amendment specifically mentions "houses" as a place where person have a right "to be secure against unreasonable searches and seizures." Supreme Court cases applying the Fourth Amendment to searches in or near the home are far too numerous and diverse to be discussed here. However, as a recent illustration of the Court's approach to search cases involving home privacy, we include a 2001 decision of the Supreme Court, Kyllo v United States, considering whether thermal imaging of a private home for evidence of marijuana growing constitutes a Fourth Amendment violation. Justice Scalia's opinion for the Court in Kyllo found thermal imager scans of a home to be "a search" that violated the homeowner's reasonable expectation of privacy: when it comes to information about the home, said Justice Scalia, "all details are intimate details, because the entire area is held safe from prying government eyes."
Most interesting, perhaps, are cases in which courts have considered arguments that an activity that may be criminally punished outside the home is nonetheless protected when it occurs inside a home. In Stanley v Georgia (1969), for example, the Supreme Court unanimously found that the private possession of obscene material inside a home was constitutionally protected, even though states were free to punish the sale and distribution of those materials. Later, members of the Court would argue over whether Stanley was a First Amendment or a Fourth Amendment case, but it remains clear that the presence in the home of the obscene films was a critical fact in the outcome. In Ravin v State (1975), the Alaska Supreme Court carried Stanley's home privacy rationale a step further when it found---applying mostly U.S. Supreme Court precedents--that the possession in the home of marijuana for personal consumption to be constitutionally protected under the Alaska Constitution.
shows how the special status of the home may be a justification for limiting
constitutional rights. In Frisby, the Supreme Court
a ban on picketing in residential areas, arguing that the general First
Amendment right to picket in the traditional public forum is trumped in
this case by the state's compelling interest in protecting the privacy
The Fourth Amendment
Portions of the cases below specifically dealing with the constitutional status of the home are highlighted in red.
2. Should the Constitution protect homeowners charged with illegal possession of various items--such as pornography, marijuana, or handguns? If so, does the Constitution protect the right to use or carry these items in one's backyard or driveway? An apartment? How about in one's own car?
3. What do you think of the Second Circuit's analysis of the Third Amendment in Engblom? Do you think that the fact that the state owned the housing units in question should preclude a Third Amendment claim by the striking prison guards?
4. Lawrence is, of course, a very controversial decision. If you think the Constitution should protect the right to engage in adult consensual sodomy, how far should that right extend? Should it be protected if in the home, but not if in a hotel room or an automobile?
5. What are the odds that the U. S. Supreme Court would agree with the Alaska Supreme Court's conclusion in Ravin that the private possession of marijuana for personal consumption in the home is constitutionally protected? On what do you base your conclusion?
Infrared image involved in the Kyllo case.