The US Fish and Wildlife Service (FWS) listed the black pinesnake as “threatened” under the Endangered Species Act (ESA) in 2015. Five years later, FWS categorized about a third of a million acres in Alabama and Mississippi as “critical habitat” for the snake. That included a bit under 100,000 acres of privately owned land, 10,000 of which comprise Gray Skipper’s family lumber business. As a result, those private owners face land-use restrictions which will transfer much of their effective ownership to the black pinesnake, in order to provide the “public good” of species protection.

On its face, it is unjust to force those private parties “lucky” enough to have their land called “critical habitat” bear the burden of protecting species that their actions did not put at risk. If the benefits go to the general public, the costs should be borne by the public. That aspect of the ESA clearly violates one of the rallying cries of the American Revolution—“no taxation without representation.”

In the case of Gray Skipper, imposing such burdens is doubly unfair. He is described as a “model private conservationist,” whose land-use model, according to Pacific Legal Foundation attorney Charles Yates, includes “maintaining original habitat,” which is the purpose of the ESA. Yet in this case the “families that maintain habitat are punished, and the FWS’ policy is self-defeating.”

Beyond this, however, there is another FWS abuse at play. It asserts that Skipper’s property is “occupied” by the black pinesnake, a clear prerequisite for the habitat to be critical for the snakes’ survival. But as the PLF’s complaint on Skipper’s behalf reveals, only five total sightings of the snake on the property in question have occurred in the last quarter-century, four of which were more than twenty years ago, and the only sighting since then was seven years ago. Further, “a comprehensive state survey” of the area “found no pinesnakes on the property.” Since the species still exists, land they haven’t lived on for a substantial amount of time cannot be essential to their survival.

There is hope that reason will prevail in this case, particularly as a result of Weyerhaeuser v. Fish and Wildlife Services, heard by the Supreme Court in 2018. It involved about a hundred remaining dusky gopher frogs living in Mississippi. FWS designated 1,500 acres of privately-owned land in Louisiana as critical habitat for the frog. But the frogs had not lived in Louisiana for 50 years. Further, the location was not even suitable for the frogs. Its existing loblolly pines would have to be removed and replaced with longleaf pines, which would also require periodic burning. Yet FWS decided that forcing the owner to adapt their land for the frog was “reasonable,” without even making an environmental impact study.

Justice Alito got at the central issue in that case when he said, “The question is who is going to have to pay and who should pay for the preservation of this public good?” on the way to rejecting FWS’s claims.

It seems obvious that while FWS’ invalid assertion that an endangered species occupied land designated “critical habitat” offered sufficient reason to reject their claims, there is an even more important constitutional issue in play that would apply more broadly, including cases where a species did in fact occupy the land in question.

FWS’s actions, with respect to both the dusky gopher frog and the black pinesnake, are clear violations of the Fifth Amendment’s “nor shall private property be taken for public use without just compensation.” But it has not always been so obvious to previous Courts. The word “taken” has been redefined almost completely away by rulings that government has not taken property requiring compensation, as long as the owner retains some value (as if one was to deem that a mugger did not rob you if he left you with enough money for cab fare home). As Justice Stevens expressed this questionable bit of logic in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Preservation Council, owners were due compensation only in “the extraordinary case in which a regulation permanently deprives property of all value.”

That sounds like the dystopian slippery-slope problem Justice Oliver Wendell Holmes recognized in Pennsylvania Coal: “The protection of private property in the Fifth Amendment … provides that it shall not be taken for such use without compensation. … When this seemingly absolute protection is qualified … the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.” It also brings into question Holmes’ conclusion, “But it cannot be accomplished in this way under the Constitution of the United States.”

Justice Stevens’ tortured Fifth Amendment logic allowing partial takings to be ignored as if they were not takings at all could be rectified if the Court considered the Third Amendment seriously. That would bridge the substantial gap between two things Justice William Douglas expressed. He said, “The Fifth Amendment is an old friend a good friend. It is one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized,” yet he also argued that “few provisions of our Bill of Rights, notably the Third Amendment and its prohibition against quartering of soldiers in private homes, have no immediate relation to any modern problem. Most of the other guarantees against government are, however, as important today as they were when first adopted.”

The Third Amendment’s guarantee that “No soldier shall, in time of peace be quartered in any house, without the consent of the owner” clarifies the Fifth Amendment’s Takings Clause. It expressly prohibits even a partial government taking of property—the value of that part of one’s property forcibly required to quarter (that is, house) a soldier for a period of time, which overrides the use toward which the owner would have put that part of their property—even in pursuit of the constitutionally enumerated federal function of providing for the common defense. This is crucial for questions involving species preservation proposals under the ESA, as they are also partial takings, but they do not involve a constitutionally enumerated federal function.

The Third Amendment reflects our founders’ view that takings are not limited only to complete government property takeovers, but also partial takings. As John Adams wrote, in Defense of the Constitutions of Government of the United States of America, “Property is surely a right of mankind as real as liberty. …The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” With such an understanding, constitutional property rights are enforced; without it, they can be almost entirely eviscerated.

To illustrate, consider the Constitutional implications if Congress passed a law declaring that black pinesnakes and dusky gopher frogs (or the Delhi Fly, fairy shrimp, or other beneficiaries of uncompensated Endangered Species Act takings) were to be considered American soldiers. Obviously that is a stretch, but my purpose is to illustrate that applying the logic of the Third Amendment to the Fifth Amendment’s Takings Clause would make the FWS’s current application of the ESA invalid.

Forcing owners to quarter those snakes, frogs, and others on their property without compensation would violate the Third Amendment. And that reconnection between the Third Amendment and the Fifth Amendment could have powerful effects, since if such a partial taking would be unconstitutional in pursuit of the enumerated federal function of national defense, it would certainly be unconstitutional for species protection, which is not constitutionally authorized.

There is reason to believe that the Supreme Court will, as in 2018, limit FWS’s attempted over-reach under the ESA, because land that an endangered species had not occupied for a substantial period of time cannot accurately be designated as critical habitat. However, such a ruling would be quite narrow in its application. If, instead, the focus was on how forcing particular property owners to bear the burdens of providing benefits for all Americans, even if it involved only a partial taking of their property’s value, violated the Fifth Amendment as clarified by the long-ignored Third Amendment, it would provide far broader protections for Americans’ property rights, as FWS is hardly the only government entity violating them.