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 amendment1 is unique among our Bill of Rights in many respects. First, it is the only passage in the Constitution that is directly concerned with the rights of the individual vis-a-vis the military in both war and peace. Second, it is the only amendment that the U.S. Supreme Court has never had occasion to directly interpret (although several of its cases mention it as one facet of the right to privacy). Third, despite the fact that the protections afforded by it remain virtually non-existent in much of the world, it has engendered little or no controversy throughout our country's history. In this column, I seek to answer two questions: what protections does the third amendment afford us and of what continuing importance are those protections today?
Justice Story, in his classic treatise on the Constitution, stated that the "plain object [of the third amendment] is to secure . . . that a man's house shall be his own castle, privileged against all civil and military intrusion." Justice Story may have overstated his case slightly when he said that the amendment protected a man's house from "all" civil and military intrusion,2 since the language of the amendment clearly evidences a limitation on such an absolute prohibition when the exigencies of war so necessitate, but he is right as to the basic spirit of the amendment for even in time of war, the amendment guarantees that the military power is clearly subordinated to the authority of the people, acting through their popularly elected civilian legislators.
Since the protections afforded the individual by this amendment have never seriously been challenged by our government, most Americans (including myself prior to researching this column) have no idea why our Founding Fathers thought the protections afforded by the Third Amendment were important enough to include in our Bill of Rights. The answer lies in history and the direct experiences of our Founding Fathers.
The quartering of soldiers first became a significant problem for the colonies with the arrival of thousands of British troops during the French and Indian War (1754-1763). After the conclusion of that war the British Parliament, looking for ways to shift the financial burden of defending the colonies, passed the Quartering Act of 1765 and the hated Stamp Act of 1765. These Acts required the colonists to bear the cost of providing barracks and supplies for the resident British soldiers. Moreover, where there was inadequate room in barracks, the Quartering Act authorized soldiers to be quartered in inns, livery stables and alehouses. Thus the problems related to quartering of soldiers became entwined with the volatile political issue of "taxation without representation."
The British Crown, however, did not stop there. In 1768, responding to growing colonial opposition to British trade and revenue regulation, many soldiers from the colonial frontier were redeployed to locations near the seaboard cities. Thus soldiers were used by the British Crown to enforce its laws against the evident will of the people. In cities like Boston, confrontations between soldiers and civilians sparked fistfights, riots, and similar incidents, of which the "Boston Massacre" remains the most vivid example.
In 1774, the British Parliament took matters a step further, passing the Quartering Act of 1774. This Act, one of the five "Intolerable Acts" enacted in response to the Boston Tea Party, was even more onerous than the 1765 Act in that it authorized the quartering of soldiers in the private homes of the colonists. It was our forefathers' deep resentment of the financial burdens related to maintaining the British Army and the abuses to their persons, properties, and liberties that had resulted from the presence of British soldiers in their homes and cities that led to the adoption of the Third Amendment.
The Third Amendment addressed only that part of the problem3 that specifically dealt with "quartering." It did so by requiring that "quartering" be strictly voluntary in peacetime and by placing the "quartering" authority, in times of war, squarely under the control of the people's popularly elected legal representatives. This clearly delineated bulwark against the rawest form of governmental power (i.e. the military power), remains one of the cornerstones of our Republican liberties and ought not be taken for granted.
Now more than ever we must remain vigilant, for just as our forefathers grieved over the maintenance of a standing army in their midst during peacetime and watched in dismay as that army turned from defending them against their foreign enemies, to enforcing unjust laws that stripped them of their liberties, so one can observe members of our government proposing to do likewise (e.g. suspension of posse comitatus) to combat the "threat" that "we" feel from whole classes of people who the President designates as "terrorist" groups. John Philpot Curran once said: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt." Which way will it be America?
