THIRD AMENDMENT

The Third Amendment to the U.S. Constitution reads:

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.

Ratified in 1791, the Third Amendment to the U.S. Constitution sets forth two basic requirements. During times of peace, the military may not house its troops in private residences without the consent of the owners. During times of war, the military may not house its troops in private residences except in accordance with established legal procedure. By placing these limitations on the private quartering of combatants, the Third Amendment subordinates military authority to civilian control and safeguards against abuses that can be perpetrated by standing armies and professional soldiers.

The Third Amendment traces its roots to english law. In 1689, the English Bill of Rights prohibited the maintenance of a standing army in time of peace without the consent of Parliament. Less than a century later Parliament passed the Quartering Acts of 1765 and 1774, which authorized British troops to take shelter in colonial homes by military fiat (order). During the American Revolution, British Red Coats frequently relied on this authorization, making themselves unwelcome guests at private residences throughout the colonies. By 1776 the declaration of independence was assailing the king of England for quartering "large bodies of troops among us" and keeping "standing armies without the consent of our legislature."

Against this backdrop, a number of colonies enacted laws prohibiting the nonconsensual quartering of soldiers. The Delaware Declaration of Rights of 1776, for example, provided that "no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such a manner only as the legislature shall direct." Similar expressions also appeared in the Maryland Declaration of Rights of 1776, the Massachusetts Declaration of Rights of 1780, and the New Hampshire Bill of Rights of 1784. Originally drafted by james madison in 1789, the Third Amendment embodies the spirit and intent of its colonial antecedents.

Primarily because the United States has not been regularly confronted by standing armies during its history, the Third Amendment has produced little litigation. The Supreme Court has never had occasion to decide a case based solely on the Third Amendment, though the Court has cited its protections against the quartering of soldiers as a basis for the constitutional right to privacy (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]). In lower federal courts, Third Amendment claims typically have been rejected without much discussion.

However, in 1982, the U.S. Court of Appeals for the Second Circuit issued the seminal interpretation of the Third Amendment in Engblom v. Carey, 677 F.2d 957 (1982). Engblom raised the issue of whether the state of New York had violated the Third Amendment by housing members of the national guard at the residences of two correctional officers who were living in a dormitory on the grounds of a state penitentiary. The governor had activated the guard to quell disorder at the penitentiary during a protracted labor strike.

Although the Second Circuit Court did not decide whether the Third Amendment had been violated, it made three other important rulings. First, the court ruled that under the due process clause of the fourteenth amendment, the Third Amendment applies to action taken by the state governments no less than it applies to actions by the federal government. Second, the court ruled that the two correctional officers were "owners" of their residences for the purposes of the Third Amendment, even though they were renting their dormitory room from the state of New York. Any person who lawfully possesses or controls a particular dwelling, the court said, enjoys a reasonable expectation of privacy in that dwelling that precludes the nonconsensual quartering of soldiers. Third, the court ruled that members of the National Guard are "soldiers" governed by the strictures of the Third Amendment.

No federal court has had the opportunity to reexamine these Third Amendment issues since Engblom.

further readings

Fields, William S. 1989. "The Third Amendment: Constitutional Protection from the Involuntary Quartering of Soldiers." Military Law Review 124.

Levy, Leonard Williams. 1999. Origins of the Bill of Rights. New Haven, Conn.: Yale Univ. Press.

cross-references

Bill of Rights; Incorporation Doctrine.

Third Amendment The Constitution's Third Amendment, which forbids nonconsensual quartering of soldiers in private homes during peacetime, lies almost forgotten among the Bill of Rights. It has been neither the source of much judicial concern nor the object of extensive academic or political controversy. Yet its subject was of great importance to the framers of the Constitution, and it has recently received a modest new lease on life as one of the foundations of the modern constitutional right to privacy.

The English Bill of Rights of 1689, the result of the seventeenth‐century struggle against Stuart authoritarianism, listed the forced quartering of troops among the worst abuses committed by King James II. The increased British military presence prior to and during the American Revolution revived these fears, and contributed to the view of American colonists that they were being deprived of the traditional rights of Englishmen. This sense of deprivation led to the ratification of the Third Amendment in 1791.

The Supreme Court has never decided a case dealing directly with the issue of forced quartering of troops, although the Court of Appeals for the Second Circuit in Engblom v. Carey (1982) did hold that the Third Amendment applied to the National Guard while on state duty. The Amendment remains one of the few provisions of the Bill of Rights that the Supreme Court has not incorporated into the Fourteenth Amendment and thus made directly applicable to the states (see Incorporation Doctrine). The philosophy of the amendment was an important component of Justice William O. Douglas's opinion in Griswold v. Connecticut (1965) that a constitutional right of privacy could be constructed from the commitment to personal autonomy found in the penumbras of the Bill of Rights.

Robert J. Cottrol