Continuing my series on the Bill of Rights:
The Third Ammendment
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 Third Amendment seems to have no direct constitutional relevance at present; indeed, not only is it the least litigated amendment in the Bill of Rights, but the Supreme Court has never decided a case on the basis of it.
So what is the story behind it? It was made part of the Constitution for a reason. In this post I will try to outline the reasoning behind the 3rd Ammendment.
The federal government today is not likely to ask people to house soldiers in their homes, even in time of war. Nevertheless, the amendment has some modern implications. It suggests the individual’s right of domestic privacy—that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war—rights that emphasize the importance of civilian control over the armed forces. Some legal scholars have even begun to argue that the amendment might be applied to the government’s response to terror attacks and natural disasters, and to issues involving eminent domain and the militarization of the police.
When the amendment was written in the eighteenth century, Americans and Englishmen in general believed that the issue of quartering troops in private homes was of great and palpable significance. During the course of their history the English had developed a deep dislike of standing armies; they especially objected to the government’s compelling them to quarter soldiers in their homes.
Yet the English attitude was contradictory. At the same time as the English protested the quartering of troops in private homes, they were reluctant to house the soldiers in barracks separated from the civilian population. The English remained so suspicious of standing armies that they feared that concentrations of soldiers in barracks might pose military threats to the people’s liberties. Thus, the English concluded that if they had to have an army, it must be scattered among the populace and housed preferably in inns, alehouses, stables, and private homes. But as Parliament made clear in the Glorious Revolution of 1688-89, the government could not billet troops in private homes without the consent of the owners. So the English fear of standing armies was inextricably connected to their fear of having soldiers quartered in their homes without their consent.
Americans preferred to rely for their protection on local militia, not on professional soldiers. Although the peace treaty of 1763 ended the war and ousted France from the North American continent, the British government believed it still needed tens of thousands of soldiers in America in order to police the newly acquired territories. Since the earlier English quartering act did not extend to the colonies, Parliament in 1765 passed a Quartering Act that set down the regulations for housing soldiers in the American colonies during time of peace. 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; if these were insufficient, the governors and councils of the provinces were authorized to use uninhabited houses, barns, and other buildings to lodge the soldiers. The colonists were required to furnish provisions and necessaries for the troops, including firewood, bedding, and beer.
The colonies, particularly the province of New York, objected to this act, especially as it obliged them to raise money to support the soldiers without the consent of their provincial legislatures. Tensions over the presence of British soldiers in the colonies increased. In 1768 royal troops were redeployed to Boston, Massachusetts, to assist with law enforcement in a colony that seethed with resentment against British authority. Many Bostonians became convinced that this standing army quartered among them in time of peace in violation of English law was designed to overwhelm them with military force. With nearly four thousand redcoats billeted in a town of fifteen thousand civilians, it was only a matter of time before an incident occurred. On March 5, 1770, nervous British soldiers fired upon a hostile crowd and killed five civilians, resulting in what the colonists called the Boston Massacre.
In the eyes of the British government Boston seemed to be a hotbed of fanaticism. The Tea Party in December 1773, in which patriots threw ₤10,000 of tea into Boston harbor, confirmed this view and led Parliament in 1774 to pass the Coercive Acts, among which was a new Quartering Act. This act went beyond the earlier statute by authorizing the royal governors to order the billeting of soldiers in private homes if the colonists refused to provide other lodging.
These British actions lay behind the Continental Congress’s expressions of American grievance. In its Declaration and Resolves on October 14, 1774, Congress protested the presence in a time of peace of a standing army and the quartering of troops in the colonies without their consent. Then in the Declaration of Independence of 1776, two of the many accusations Congress leveled against the king were his keeping “among us, in Times of Peace, Standing Armies, without the Consent or our Legislatures,” and his “quartering large Bodies of Armed Troops among us.”
Many of the Revolutionary state constitutions drafted in 1776-77 included provisions warning of the dangers of standing armies in peacetime and stating, as the Virginia Bill of Rights of 1776 did, “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State.” Some state constitutions also affirmed, as did the Delaware Declaration of Rights of 1776, “that no soldiers ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct.” Thus when the new federal Congress came to write the Third Amendment to the Constitution in 1789, it had considerable experience and precedent to rely on. There was nothing new about the Third Amendment; it simply declared what had become conventional American wisdom.