Third Amendment — Quartering Soldiers

Amdt3.1 Overview of Third Amendment, Quartering Soldiers

The Third Amendment limits the federal government’s ability to use private homes as lodging for soldiers. The Supreme Court has never decided a case directly implicating the Third Amendment and has cited it only in a handful of opinions.¹ As a result, some legal scholars consider the Amendment to be “an interesting study in constitutional obsolescence.”² When ratified, however, the Third Amendment enshrined “protections of great importance,”³ reflecting the Founders’ pre-Revolutionary experiences with British soldiers and centuries of English history.⁴

Despite the Amendment’s near-disuse as to its original protections,⁵ it took on a new dimension in the second half of the twentieth century, with courts and scholars citing it as one of the constitutional “guarantees creat[ing] zones of privacy”⁶ and for a “traditional and strong resistance of Americans to any military intrusion into civilian affairs.”⁷

Amdt3.2 Historical Background on Third Amendment

The practice of quartering soldiers dates back to at least the Roman Republic, when territorial governors used it as a tool of oppression and source of income.¹ In seventeenth-century Britain, the Petition of Right of 1628 levied multiple complaints against King Charles I, including maintaining a standing army and the involuntary quartering of soldiers;² it called on King Charles to end those practices.³ When quartering continued, the English Parliament in 1679 passed the Anti-Quartering Act, which prohibited the involuntarily quartering and billeting of soldiers.⁴ A decade later, the Declaration of Rights (later codified as the Bill of Rights of 1689) cited King James II’s continued practices of maintaining a standing army and quartering as two justifications for his ouster in the “Glorious Revolution.”⁵ The Mutiny Act of 1689 further codified protections against quartering.⁶

Concerns over the existence of standing armies and their quartering in private homes spread to the American colonies. The Mutiny Act’s prohibitions on quartering did not extend to the colonies, where involuntary quartering continued.⁷ Although colonial legislatures attempted to regulate quartering to varying degrees,⁸ the British Parliament did not extend the Mutiny Act’s protections to the colonies until 1765.⁹ The Quartering Act forbade quartering in private homes but required the colonies to bear the costs of barracks and supplies for British soldiers or, in the alternative, to house British soldiers in “inns, livery stables, ale-houses, victualling-houses,” and other such establishments.¹⁰

The Quartering Act of 1765 contributed to growing tensions between the colonists and British Forces. This friction ultimately led to outright conflict, one notable example being the Boston Massacre in 1770.¹¹ In response to these hostilities, the British Parliament passed the so-called “Intolerable” or “Coercive Acts,” including the Quartering Act of 1774.¹² The 1774 Act expanded British officers’ ability to refuse unsuitable housing and seize “uninhabited houses, out-houses, barns, or other buildings” for purposes of quartering soldiers.¹³ As opposition to the Intolerable Acts led to revolution, the colonists’ experiences with quartering influenced the Declaration of Independence, which counted among its grievances against King George III the “Quartering [of] large bodies of armed troops among us.”¹⁴

As the newly independent states adopted organic laws, four states—Delaware, Maryland, Massachusetts, and New Hampshire—included restrictions on quartering.¹⁵ These early state protections initially had no national analogue: the Articles of Confederation contained no restrictions on quartering.¹⁶ Likewise, although the Framers of the Constitution considered including such a restriction,¹⁷ it was not part of the final draft submitted to the states for ratification. Some Framers objected to the omission, arguing that the Constitution’s failure to prohibit quartering, while allowing standing armies, strengthened the central government’s power.¹⁸

Reflecting this concern, five states’ ratifying conventions recommended amending the Constitution to include a prohibition on quartering in the Bill of Rights.¹⁹ The proposed amendments took two forms. Maryland and New Hampshire proposed amendments that would have prohibited involuntary quartering during peacetime but were silent as to quartering during wartime.²⁰ In contrast, Virginia, New York, and North Carolina proposed amendments with the same peacetime restrictions that also subjected wartime quartering to limits imposed by law.²¹ This second version formed the basis for the amendment as introduced in the House of Representatives by James Madison²² and ultimately adopted as the Third Amendment.

Amdt3.3 Government Intrusion and Third Amendment

The Third Amendment has rarely been the subject of litigation.¹ The Supreme Court has never directly construed it, and only two lower federal courts—the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit—have examined the Third Amendment in depth.² This lack of judicial interpretation may be due to the Amendment’s straightforward phrasing. As Justice Joseph Story stated in his Commentaries on the Constitution of the United States, the “provision speaks for itself” as “secur[ing] the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.”³

The few Supreme Court cases that mention the Third Amendment support this view. In Griswold v. Connecticut, a case involving the constitutional right to contraception, the Court included the Third Amendment as one of several constitutional guarantees with “penumbras” that “create zones of privacy.”⁴ Likewise, in Katz v. Connecticut, concerning the meaning of a “search” or “seizure” under the Fourth Amendment, the Court noted the Third Amendment as “another aspect of privacy from governmental intrusion.”⁵ Finally, in Laird v. Tatum, involving a challenge to an army surveillance program directed at civilians, the Supreme Court cited the Third Amendment as an example of “a traditional and strong resistance of Americans to any military intrusion into civilian affairs.”⁶

Engblom v. Carey, the only federal appeals court case to examine the Third Amendment in depth, concerned whether the State of New York violated correction officers’ Third Amendment rights when it used their state-owned residences without their consent to house members of the New York National Guard.⁷ The Second Circuit recognized the Third Amendment as “designed to assure a fundamental right of privacy.”⁸ The court further held that the Fourteenth Amendment incorporated the Third Amendment and made it enforceable against the states.⁹ However, the Second Circuit did not reach the issue of whether the State of New York violated the plaintiffs’ Third Amendment rights because it decided the case on procedural grounds.