Why We Have the Third Amendment - HISTORY

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The First and Second Amendments get a lot of attention, but the Third rarely comes up in court. It reads, in full: “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 U.S. ratified it in response to a very specific set of circumstances in the late 18th century involving the British military. Even so, there are a few 20th and 21st century legal cases in which courts have mentioned or considered the amendment.

The Third Amendment Was in Response to British Quartering Acts

Between 1754 and 1763, the British Empire sent tens of thousands of soldiers to its American colonies to fight the French and Indian War for control of the Ohio River valley. Afterward, many of these soldiers continued to live as a standing army in the 13 colonies. In 1765, the British Parliament passed a Quartering Act requiring the colonies to feed and house these soldiers.

“The colonists were to provide barracks for the soldiers, and if they were not available, the troops were to be billeted in inns, stables, and alehouses,” writes Gordon S. Wood, a professor of history emeritus at Brown University, for the National Constitution Center. “[I]f these were insufficient, the governors and councils of the provinces were authorized to use uninhabited houses, barns, and other buildings to lodge the soldiers.”

This act was unpopular in the colonies, especially after the 1770 Boston Massacre in which British troops fired on a crowd and killed five people. In response to growing unrest in the colonies, Parliament introduced an even more invasive Quartering Act in 1774 as part of the so-called “Intolerable” or “Coercive Acts.” 

READ MORE: 7 Events That Enraged Colonists and Led to the American Revolution

This quartering was among the grievances Thomas Jefferson listed in the Declaration of Independence. Specifically, he accused King George III of keeping “among us, in Times of Peace, Standing Armies, without the Consent or of our Legislatures,” and “quartering large Bodies of Armed Troops among us.”

The Coercive Acts

The first Continental Congress met in Carpenter's Hall, Philadelphia to define American rights and organize a plan of resistance to the Coercive Acts imposed by the British Parliament.

After the American Revolution, the constitutional framers debated whether the United States should even have a standing army. The federalists won that debate, but James Madison wrote the Third Amendment for the Bill of Rights to guarantee that the federal government couldn’t force local governments, businesses and citizens to house U.S. soldiers.

“Ultimately, the founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens,” writes journalist Radley Balko for the American Bar Association Journal. Balko adds, “For the first 50 years or so after ratification of the Constitution, military troops were rarely, if ever, used for routine law enforcement. But, over time, that would change.”

READ MORE: What the Nixon Tapes Reveal About the Attica Prison Uprising

Legal History of the Third Amendment

Since the Third Amendment’s ratification in 1791, the U.S. Supreme Court has only mentioned it a couple of times. One instance is the 1952 case of Youngstown Sheet & Tube Company v. Sawyer. In order to sabotage a national steel strike during the Korean War, President Harry Truman had issued an executive order to seize and operate the country’s steel mills.

The court ruled the president didn’t have the authority to seize private property without an act of Congress. In the majority opinion, Justice Robert H. Jackson used the Third Amendment, which prohibited forcible quartering during wartime without congressional approval, to illustrate the court’s decision: “even in war time, his seizure of needed military housing must be authorized by Congress.”

A cartoon from June 3, 1952 when the Supreme Court ruled the president didn’t have the authority to seize private property without an act of Congress.

A cartoon from June 3, 1952 when the Supreme Court ruled the president didn’t have the authority to seize private property without an act of Congress.

In the 1965 case of Griswold v. Connecticut, the court argued that the First, Third, Fourth and Ninth Amendments suggested a right to privacy, and that this gave married couples the right to use contraception.

“The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy,” wrote Justice William O. Douglas in the majority opinion.

Although the U.S. Supreme Court has never weighed in on who counts as a “soldier” under the Third Amendment, a couple of lower courts have, creating precedents that the Supreme Court could cite in future cases.

In the 1982 case of Engblom v. Carey, the U.S. Court of Appeals for the Second Circuit ruled that the governor of New York didn’t violate the rights of striking correctional officers at New York’s Mid-Orange Correctional Facility when he evicted them from their prison residences and reassigned those residences and their jobs to National Guard troops.

However, the court did rule that National Guard members are “soldiers” under the Third Amendment, and that “the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.”

In 2015, the U.S. District Court for the District of Nevada cited this ruling while considering whether police officers violated a plaintiff’s Third Amendment right when they forcibly occupied his house in Mitchell v. City of Henderson, Nevada. That court sided with the police, ruling that they aren’t “soldiers” under the Third Amendment.

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