“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.â€
Overview
The Third Amendment to the Constitution was one of 12 amendments submitted to the states by the First [Continental] Congress on September 25, 1789, and was one of the ten ratified on December 15, 1791, that are together commonly known as the Bill of Rights. In plain language, the Third Amendment prevents the military from imposing on, occupying or seizing the homes of citizens during peacetime. In wartime, the government may authorize the military to do so by legal provision should the need arise. Although not stated directly in the body of the amendment, the roots of its development have provided some justification for arguments in support of other rights. For example, the belief that the home is considered private and should not be subject to the intrusion of government or military forces. It has also substantiated claims that the Constitution should be read differently depending on whether the nation was at war or at peace.
History
Problems attributed to the presence of soldiers among the civilian population are as old as antiquity. It was not until after the Norman Conquest in 1066 that the specific grievances against involuntary quartering and the maintenance of standing armies began to take on recognizable identities in English law. Both were the product of conditions favoring the emergence of and reliance upon increasingly larger numbers of professional soldiers for the purpose of national defense.
Under the Saxons, defenses were based upon a militia of all able-bodied men that was only called up from the regions threatened with attack. Service in the militia was usually of short duration and the participants were required to provide their own arms and supplies. The only professional soldiers during that era were the contingents of knights and mercenaries directly attached to the households of the nobility. These contingents were small because they were expensive to maintain, and of only limited necessity to an island kingdom with a simple agrarian economy, having no need to externally project military power. The great English legal scholar, Sir William Blackstone, credited Alfred the Great with the development of the militia system, asserting: “It seems universally agreed by historians, that King Alfred fast settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers…†Recent historical research has suggested that this is an overstatement, and that the origins of the early militia can be traced back to at least the seventh century. Indeed, in the words of one historian it is likely that “the obligation of Englishmen to serve in the… peoples’ army is older than our oldest records.†In any event, it is clear that the English militia tradition existed centuries before the Norman Conquest.
To secure their position, the Normans militarized the country, seized the estates of the Saxon hierarchy, built large numbers of castles manned by Norman men-at-arms, and taxed and abused the native population. In the north of England, William laid waste to thousands of square miles of the countryside in a devastation so complete that much of the area remained uninhabitable for a generation after he was gone. The involuntary quartering of soldiers was only one of many grievances suffered at the hands of the Norman soldiers who sacked and burned villages, towns and manors, and murdered, raped and robbed their inhabitants. This experience instilled in the common people a hatred and distrust of those same soldiers whom they viewed as their oppressors and not their protectors. It also instilled in them a corresponding fondness for their native Saxon institution, the militia. The uniqueness of the militia concept lay in its plebeian character. By 1181, every English freeman was required to annually prove ownership of weapons according to the worth of his chattels, and to serve the king at his own expense when summoned by the sheriff of his county.
The earliest efforts to curb the abuses relating to the involuntary quartering of soldiers appeared in the charters of towns and boroughs. Examples of those early enactments included Henry I’s London Charter of 1130, which contained the passage “[l]et no one be billeted within the walls of the city, either of my household, or by force of anyone else,†and Henry II’s London Charter of 1155, which provided “that within the walls no one shall be forcibly billeted, or by the assignment of the marshall.†Some of those documents appeared before the Magna Carta, which contained no specific reference to quartering, but did reaffirm the “ancient liberties and free customs†of London and the other cities, boroughs, towns, and ports; seemingly incorporating their provisions by reference. Those charters were the major legal antecedents of the Third Amendment.
Many years later, in 1679, Parliament tried to assuage civilians’ grievances by passing the Anti-Quartering Act, which provided that “noe officer military or civill nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme… without his consent…†In theory, this act provided homeowners with powerful protections against forced quartering, as it applied without exception to town and country, in peace and war. In practice, however, James II ignored the act. The 1689 Bill of Rights presented to his successor, William III, accused James II of attempting to subvert English liberties by “quartering soldiers contrary to law…†Shortly thereafter Parliament enacted the Mutiny Act, which forbade quartering soldiers in private homes without the consent of the owners. The act failed to allocate funds for barracks, however, instead directing civilian authorities to billet soldiers in ale-houses, inns, stables, and the like. Limited though they were, the protections offered by the Mutiny Act were not extended to the American colonies.
In the American colonies the militia would come to play a similar role to the old English militia as a check on the excesses of royal authority. In the seventeenth century, Bacon’s Rebellion against Virginia’s Governor, Sir William Berkeley, and the northeastern colonies revolt, at the time of the Glorious Revolution under James II, against the Royal Governor Sir Edmund Andros, would both be accomplished with militia support. The militia’s role in this area would increase over time so that by the second half of the eighteenth century, one historian would note that “…scarcely a decade passed that did not see the people in arms to redress official grievances.†The Classical Republicans (Associated with the Whig party) drew their inspiration largely from the Greek and Roman republics, and came to view the militia concept as more than just simple tradition. The belief that such a militia was “necessary to a free State†soon became central to their political thought.
The acceptance of a standing army was paralleled by the atrophy of the militia system in England. This process was hastened by the rural disorders of the 1760s, which inspired fear in the gentry of the militia-trained portion of the population. Lord Barrington, for instance, expressed concern that “a few soldiers, commanded by a weak, ignorant subaltern, might be defeated by a very large mob, full of men lately used to arms in the army or militia.†The general militia in England was steadily supplanted by a select militia, which achieved efficiency by a sacrifice of almost every traditional attribute. The 1761 Militia Act, for example, authorized mustering of only a few hundred men from each county. Those chosen were, if wealthy, able to hire another to serve in their place; those actually serving were issued government arms, stored by officers under lock and key. The Lieutenant of the county, or his deputies, were authorized “to employ such Person or persons as he or they shall think fit, to seize and remove the arms, clothes and accoutrements belonging to the militia, whenever [they] shall adjudge it necessary to the peace of the kingdom…†It was thus no surprise that a few years later the Whig mayor of London would inform parliament that the militia “could no longer be deemed a constitutional defense, under the immediate control and direction of the people; for by that bill they were rendered a standing army to all intents and purposes whatever…â€
While the militia as an institution declined in England during the eighteenth century, it retained vitality in the American colonies. Unlike the mother country, the colonies lacked both the need to project military force beyond their borders, and an economy that could support a significant standing force. The colonists quickly adapted the militia system to the Indian conflicts, instituting rapid response units and long-range patrols. They also assimilated the views of the English Whigs and Classical Republicans, which stressed the militia’s role in a free republic. In response to the popular complaints about involuntary quartering, colonial legislatures made early efforts to grant legal protection from that objectionable practice. Typically, those enactments extended protection only to private dwellings and continued to allow for the quartering of soldiers in public structures such as inns. Exceptions were also made for the exigency of actual war.
Each time the British government launched a significant military operation in North America, it brought along quartering problems. Civilians in Massachusetts and Connecticut complained about the quartering of soldiers in private homes as early as King Philip’s War (l675-1676). Similar allegations surfaced in New York at the time of the Dominion of New England in 1688.
Following a recommendation that the terms of the Mutiny Act be explicitly extended to the colonies, the British Parliament enacted the Quartering Act of 1765, which required the colonists to bear the cost of providing barracks and supplies (fire, candles, vinegar, salt, and small beer or cider) for the resident British soldiers. Where there was inadequate room in barracks, the Act authorized the soldiers to be quartered in inns, livery stables and alehouses. In order to raise revenue from the colonists to help cover the costs of maintaining the army, the British Parliament also enacted the despised Stamp Act of 1765.
Implementation of the Quartering Act immediately met with opposition in the colonies. In New York, General Thomas Gage’s request for quarters and provisions was resisted by the legislature. The British response was to suspend the New York Assembly until it acquiesced to the General’s demands. In response to the Boston Tea Party of December l6, 1773, Parliament passed five acts. Among them was a new Quartering Act, approved in June l774. Because it authorized the quartering of troops in private homes (as opposed to private buildings), the colonists regarded this Quartering Act as even more offensive than its 1765 predecessor and they labeled it as one of the “Intolerable Acts.â€
In the summer of 1776, the Continental Congress recommended that the former colonies “adopt such governments as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents, and Americans in general.†A significant number of states responded by enacting bills of rights or new constitutions. Many of those documents contained provisions separately addressing the grievances against the involuntary quartering of soldiers and maintenance of standing armies. Provisions relating to the maintenance of standing armies were included in the declarations or constitutions adopted by Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Virginia and Vermont. The drafters of each document were conversant with the work of their predecessors, so that the language used in those provisions was somewhat similar. However, there was no clear consensus among the states on the nature of the grievance. All of the documents used the normative phrase “‘ought to†in characterizing the “prohibition,†with the exception of the later drafted New Hampshire Constitution of 1784 which utilized the mandatory imperative “shall,†with respect to its prohibition against peacetime quartering. Those provisions were the existing legal guarantees during the period of the Articles of Confederation, and would serve as the direct antecedents of the third amendment.
The debate over the military provisions of the proposed Constitution continued after the Convention. One of the most effective complaints of the Anti-Federalists in their attack on the draft Constitution was that the document gave Congress carte blanche to raise and maintain a standing army, an institution that was still anathema to Americans. For many, there was considerable concern that the new national government would be as oppressive as its British predecessor. With respect to the standing armies issue, this fear was exasperated by the fact that the American government itself had engaged in the onerous practice of the involuntary quartering of soldiers upon its own citizens during the Revolutionary War.
To Madison and the Federalists, the standing armies issue was a political issue, not a question of individual rights. The problem of involuntary quartering was a specific grievance, which emanated from a politically undemocratic, and thus unsound, resolution of the standing armies issue. If the standing armies issue was solved, as proposed, by placing control of the military establishment in the hands of a government which in turn was controlled by the people; then the problem of involuntary quartering would itself be solved, since no popularly controlled government would engage in such an onerous practice. In short, there was no “individual right†against the maintenance of a standing army in peacetime.
The Anti-Federalists were not fully convinced by this logic. Since the form of government proposed in the new Constitution had never before been tested, there was legitimate concern that it might not be as democratic in practice as it appeared on paper. Further, there was the fear that a strong majority in control of a democratic government might use its position to abuse the rights of a weaker minority. They demanded additional assurances. Accordingly, as part of the compromise process necessary to gather support for ratification, specific articles for inclusion in a national bill of rights were recommended by eight of the thirteen states. Five of those eight states included among their articles a provision relating to the quartering of soldiers.
Given both the English and American background of the grievance, Madison’s decision to include a right of protection against the involuntary quartering of soldiers in his federal bill of rights was hardly surprising. The language, which he used, was almost identical to that of the quartering provisions found in the constitutions and declarations of rights drafted by a number of the colonies during the Revolution; with one important exception. As with the other amendments, Madison substituted the mandatory imperative “shall†for the “ought†that had characterized those earlier documents, thus making the provision a true “right.â€
The Founding Fathers’ successful resolution of the standing armies issue would, for practical purposes, assure adherence to the guarantees contained in the Third Amendment. The efficacy of Madison’s approach would be born out by events. The government established under the Constitution proved to be stable, enduring, and powerful enough to control the permanent military establishment. It successfully balanced the interests of the executive and legislative branches, providing effective mechanisms for avoiding the kind of political deadlocks over the control of the military, which had occurred between king and parliament in the seventeenth century. This, in turn, assured that the basic needs of the soldiers would be ad equitably met. More importantly, the new government proved to be responsive to the people. Dependent as it was upon electoral support, it strove of necessity to avoid such politically unpopular practices as involuntary quartering and the use of the military for domestic law enforcement. In large measure, the obscurity of the third amendment would be a reflection of the success of the Constitution as a whole.
Precedents
In his classic treatise on the Constitution, Justice Joseph Story devoted only one small paragraph to the third amendment, concluding that its prohibitions were self-evident. Borrowing a metaphor from Coke, he stated emphatically that the amendment’s “plain objective is to secure the perfect enjoyment of that great right of common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.†Over a century later another commentator expressed a similar view, noting that the right is “so thoroughly in accord with all our ideas†that extensive comment it was unnecessary. Indeed, few of the protections embodied in the Bill of Rights have enjoyed such widespread agreement, both then and now, as to their purpose and meaning. It is in that context that the third amendment’s contribution was perhaps the most significant.
Despite the simplicity of the amendment, and the agreement of all states to its assertions, it was violated repeatedly during the War of 1812 and the Civil War. Although there is some rationale for the quartering of Union troops in the secessionist states (in that, due to their secession, their people were no longer afforded rights under the Constitution of the Union), both sides also quartered their troops with their own people, by force if necessary, and often without compensation. No legislation of any kind was passed by Congress (Union) either declaring a state of war or allowing the quartering of troops in the homes of loyal citizens. Since the government was not sued for any violations of the Third Amendment, however, it can be assumed that pardon was granted by the general populace due to the nature of the emergency. In the face of hundreds of thousands of dollars of potential claims arising out of the Civil War, the Committee on War-Claims contended that “In battle or immediately after, and when it may be impossible to procure property in any regular mode by contract or impressment, self-preservation and humanity may require the temporary occupancy of houses for hospitals for wounded soldiers, or for the shelter of troops, and for necessary military operations which admit of neither choice nor delay…â€
The Third Amendment has proven to be one of the least-litigated parts of the Constitution. The Supreme Court has never directly reviewed the meaning of the amendment. Only one court has ever confronted the meaning of the amendment, in a case decided nearly 200 years after it was ratified: Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand 572 F. Supp. 44 (S.D.N.Y. 1982), aff’d. per curiam 724 F.2d 28 (2d Cir. 1983).
Engblom grew out of a “statewide strike of correction officers, when they were evicted from their facility-residences … and members of the National Guard were housed in their residences without their consent.†The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. The Second Circuit Court of Appeals, however, reversed on the ground that it could not “say that as a matter of law appellants were not entitled to the protection of the Third Amendment.†(677 F.2d at 964) On remand, however, the District Court held that because the officers’ Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a qualified immunity, and this decision was upheld by the Second Circuit.
The Third Amendment has been cited in passing in other cases, most notably opinions arguing that there is a constitutional right to privacy, such as the Supreme Court’s decision in Griswold v. Connecticut, 381 U.S. 479, 484 (1965). In other cases, courts have cited the Third Amendment as proof that the Constitution carefully distinguishes between times of war and peace, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952). Perhaps because of its obscurity, the amendment also has attracted its share of crackpot theories, such as that Army reservists ordered to march in a parade had a Third Amendment right to sit it out instead. Jones v. United States Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972).
Resources
Online
http://www.saf.org/LawReviews/FieldsAndHardy2.html (Fields and Hardy)
http://www.tomwbell.com/writings/3rd.html (Bell)
http://www.thirdamendment.com/third.html (Silversmith)
West’s Encyclopedia of American Law (Excerpt) (Gale)
American Heritage History of the Bill of Rights (3rd Amendment)
