Constitutional Protection for the Home
The Issue:  Is your home "your castle"? Do activities in the home merit special protections under the Constitution?

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.")

Danny Kyllo, defendant in 2001 Supreme Court case, 
United States v Kyllo  (photo: ABA Journal)

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. 

Finally, Frisby v Shultz shows how the special status of the home may be a justification for limiting constitutional rights.  In Frisby, the Supreme Court upholds 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 of homeowners.

The Third Amendment
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 Fourth  Amendment 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Portions of the cases below specifically dealing with the constitutional status of the home are highlighted in red.

Poe v Ullman (1961)
Engblom v Carey (1982)
Kyllo v United States (2001)
Stanley v Georgia (1969)
Ravin v State (1975)
Lawrence v Texas (2003)
Frisby v Schultz (1988)

It's not a constitutional case, but it's interesting:
The Sweet Trials of 1925 and 1926

The Sweet home that was the scene of a famous 1925 shooting.

In 1925, Dr. Ossian Sweet,  a black dentist, moved his family moved into a previously all-white neighborhood in Detroit.  Within a day, a white mob descended on the home.  Rocks were thrown at the home, breaking at least one window.  Suddenly a barrage of shots rang out, killing one of the members of the crowd.  Police arrested the eight occupants of the home, charging them with murder.  Famous defense lawyer Clarence Darrow defended the Sweets, eventually winning an acquittal.  Darrow's summation in the Sweet trial was one of the most powerful in his long career.  To read more about the Sweet trials, jump to: SWEET TRIALS


1. Clearly the Constitution prohibits the government from quartering soldiers or conducting unreasonable searches in private homes.  Does the specific protection for home privacy under the Third and Fourth Amendments suggest a broader right of home privacy?  If so, how far should that broader right extend? 
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.
6.  Would it violate the Fourth Amendment for police, without a warrant, to use thermal imaging technology on a warehouse--as opposed to the house involved in Kyllo?
The principle we champion is a principle of limited government; it is not a catalogue of special rights.

Robert Frost once said that home is the place where, when you go there, they have to take you in.  I think constitutionally home is the place where, when the government would tell you in intimate detail what you must do there, they have to give you a better reason why than simply an invocation of the majority's morality, which tautologically would vindicate without any scrutiny by this Court literally every intimate regulation of everything one can do in the home.

--Professor Laurence Tribe of Harvard Law School, oral argument in Bowers v Hardwick.

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