Expect the Unexpected
Why the Third Amendment May Once Again Be Needed
American Perspectives: Mighty Words: December 7, 2000
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.
If the ten amendments that comprise the Bill of Rights of the United States Constitution were a family of ten children, you wouldn’t want to be the Third.
The poor Third is ignored, unloved, unnoticed.
Of all the amendments it is the least argued over in the courts and in the press. There are no famous and celebrated Supreme Court cases that have ringingly enunciated or originally applied its meanings. It has not been interpreted and reinterpreted within an inch of its life; it has barely been interpreted at all.
It doesn’t live in the national conversation, either. We have daily arguments about the First Amendment—is this piece pornography, is that incendiary speech, protected by the Constitution’s guarantee of free speech? We enter the new century in the midst of a new and more passionate national debate over the Second Amendment, and whether it means that citizens have a clear and stated right to keep and bear arms, or whether, actually, the amendment means only that states are allowed to have an armed militia. Arguments, too, about the Fifth Amendment endure: someone not necessarily in law school might be asking right now, as you read this, how exactly the interests of justice are served when known criminals are allowed not to speak in court of their climes just because what they say might tend to incriminate them.
These amendments live; we know it because they roil us still. They are so alive they can make or ruin your day, so pertinent that all three will be invoked a thousand times tomorrow in normal conversation. They are honored, derided, picked apart, held up for inspection, debated. Oprah Winfrey, on winning a libel case brought against her two years ago, walked out of the courtroom triumphant and announced to cheers, “The First Amendment rocks.”
They all do. Even the Third.
But who ever speaks of this quiet amendment, this seeming footnote to greatness?
Now the answer is nobody. But once in America the answer was: everybody. And once they didn’t only speak about it, they screamed and roared.
And here’s an odd thing: The Third Amendment is actually important in and of itself, but it is also important because if it hadn’t been for the events that led to the inclusion of the Third Amendment in the Bill of Rights, we may not have had the other nine. That is, without the events that prompted the Third, there might not have been an American Revolution, or it might not have happened when it did, and the Constitution’s framers, therefore, might have been different men—perhaps not as wise, or as farsighted, or as shrewd.
The Third Amendment is among the shortest in the Bill of Rights, just one sentence in three lines. This is what the Third Amendment says: “No Soldier shall, in the 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.”
That’s easy enough to understand. In peacetime, no inhabitant of a private home will be forced to share that home with a member of the armed forces; in wat1:ime the same applies, unless and until a law or laws allowing or mandating quartering is lawfully passed.
One wonders: Why did the framers of the Constitution think thiS right had to be codified? Why is it in the Bill of Rights? What exactly led the framers to think it necessary? Because in the days before the American Revolution, King George III of England and his Parliament tried to thwart the thirteen colonies’ move for independence by imposing drastic measures that the colonists would never accept and could never forget.
The colonists had, of course, by the 1750s begun to agitate for their freedom from Britain. In angry retaliation, the king and his Parliament passed a Quartering Act mandating that local colonial authorities provide barracks and supplies for the increasing number of British regulars being sent to America to keep the peace and quash the rebellion. After all, as Prime Minister George Greenville said, it was the fault of the colonists that the troops had to be sent in the first place; it was only fair that they share some of the burden.
The owners of private buildings in the colonies were forced to provide housing for British soldiers in local stables, inns and ale-houses. The American people deeply resented all of this, and instead of dulling revolutionary fervor, the Quartering Act sharpened it. It was sharpened further by accompanying legislation, the Stamp Act, which mandated that costly new revenue stamps be affixed to newspapers, pamphlets, and legal documents, the revenue from which was to be used to defray the cost of Britain’s occupation, as it were, of America. This was bad enough on the face of it—the stamps were expensive—but it was also remarkably unwise in that it won Britain some new enemies among the colonists: the professional classes, the intellectuals and idea people who wrote and read the newspapers, and who worked in or around the law.
Agitation for rebellion spread further and deeper.
“No taxation without representation,” was on more and more lips. Soon the craftsmen, merchants, brawlers, geniuses, workingmen, poets, foreigners, and farm boys who were the original rebels of the American Revolution—those princes of Massachusetts! those kings of New England!—met in secret, made their plan, disguised themselves as Mohawk Indians, issued their war whoops and marched behind Sam Adams to the Boston Harbor, where they boarded three ships and dumped the cargo of highly taxed imported tea into the black waters of the port of Boston. It was December 16, 1773, a day that electrified a nascent nation and enraged the Parliament across the sea.
Parliament reacted swiftly and brutally with what came to be called by Americans everywhere, and by history, the Intolerable Acts. The port of Boston was closed. Town meetings were banned. And there was a new Quartering Act, one even more intrusive and demanding than the one that preceded it. It declared that the still-increasing number of British troops being sent to the colonies would henceforth not only be housed and fed in private buildings, but would be billeted in the private homes of citizens, whether they liked it or not.
The Act was, ironically, though not necessarily surprisingly, at odds with Britain’s own fabled legal tradition. Laws against “forced billeting” had been a matter of custom and charter for centuries by the time the protection was confirmed in the Magna Carta of 1215, which stipulated that “London shall have all its ancient liberties and free customs. Besides we will and grant that all the other cities, boroughs, and ports shall have all their liberties and free customs.” Those liberties were understood to include freedom from the forced quartering of troops. And these rights were not only enforced, they were generally considered the most impressive and advanced in Europe.
The new Quartering Act was also in clear contravention of local laws in the colonies. Colonial legislatures had as early as the seventeenth century responded to complaints of occasional forced billeting in Massachusetts, New York, and Connecticut by passing legal protections. New York’s Charter of Libertyes and Priviledges, in 1683, declared, “Noe Freeman shall be compelled to receive any Marriners or Souldiers into his house and there suffer them to Sojoume, against their willes provided Alwayes it be not in time of Actuall Warr within this province.” In Massachusetts the first Quartering Act had aroused such ire that the burghers of Boston had simply refused to house the British, and the governor of Massachusetts had to let the soldiers sleep in the statehouse.
The colonists’ bitter resentment at the new Quartering Act, and at what they viewed as its obvious illegality, was most obviously understandable in human terms. Many local governments couldn’t afford to board thousands of British troops, and local homeowners were forced to accept them in their homes. This was very hard on the colonists, many of whom had neither the room nor the food to support a soldier or soldiers. And. the forced quartering was a burden in other ways. These were strangers in the house. The colonists did not appreciate having agents of the very government they wished to throw off reading in the parlor and eating at their table. And the troops stationed in civilian houses were soldiers—sometimes coarse, often uneducated, occasionally unruly, sometimes alcoholic. There were complaints of violence and ill treatment.
The situation was, at the very least, uncomfortable and inhibiting for thousands of families. Part of the reason the British thought the billeting beneficial was that their troops would presumably pick up information; they’d be there, in the thick of it, living with potential rebels and ready to move if and when trouble began. The quartering in effect did what the British hoped it would do: it disarmed the citizenry, leaving them weaker and more subjugated.
The battle now moved south, to Philadelphia, where the First Continental Congress met nine months after the Boston Tea Party, in September, 1774. The Congress passed a resolution stating that the colonies were not bound to honor the Intolerable Acts. At this time, George III wrote, ‘The die is now cast, the colonies must either submit or triumph.”
You know what followed—Lexington and Concord—“One if by land and two if by sea.” And with all this, the writing and adoption of one of the greatest documents ever issued by man, the Declaration of Independence. The Declaration famously declared that a decent respect for the opinion of mankind necessitated a telling of the history that had led to the revolt. It called the history of the “present King of Great Britain” one of “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” It announced to “a candid world” that it would break
And so the Revolution came, was fought and won; British troops withdrew from America—some of them withdrawing, quite literally, from the homes and hearths of American families.
And now America had to invent itself once again, this time as a legal entity whose members were governed by the rule of agreed-upon law. In 1787 in Philadelphia the making of a Constitution began. Naturally there were many arguments, with a split between the Federalist delegates who favored a strong central government, and the anti-Federalists who feared it. The latter were afraid that the proposed Constitution would tend to create a federal government whose powers would in time grow too broad; they agitated for inclusion of a Bill of Rights to enumerate explicitly protected rights of the citizenry. Among these, a number of state delegations made clear, should be a specific guarantee that citizens would not be subject to the quartering of troops in their homes. By now forced billeting was, of course, history, but its lingering trauma was sufficiently current that one delegate warned that if the right were not included, the American Congress itself might someday decide to put American soldiers in American homes.
The framers pondered it all. Was a Bill of Rights necessary? If so, was it necessary to specifically ban forced billeting? This, after all, was an American government that was being born, one whose intentions toward its citizens would presumably be benign; and at any rate, this was a democracy in which no government that wished to survive would take steps so deeply offensive to public opinion.
Here James Madison steps forward, a dry and even dour man, an intellectual and acolyte of Jefferson, but, unlike his hero, so physically lacking in stature that he was called, not always with affection, “Little Jemmy.” Madison, prime author of the eventual Constitution, saw that support among the states for protection from forced quartering was strong. He accepted the idea of a billeting amendment, and wrote it up—but with words that hadn’t appeared in any of the versions put forward by the states. This caused consternation. Some called Madison’s wording too narrow, and some called it too broad. Some said the United States might need wartime or even peacetime quartering at some point in the future. And the very issuing of Madison’s proposed amendment opened up the issue of local civil unrest, by which the states, in the early days, were not infrequently marked. Part of the state of North Carolina had attempted to remove itself from the republic; there had been local insurrections, rebellions, and Indian wars. Soon there would be a Whiskey Rebellion in western Pennsylvania, in which an army of angry farmers and moonshiners, protesting Treasury Secretary Alexander Hamilton’s new 25% tax on spirits, rose and fired on federal officials. It quieted down quickly, and President Washington pardoned most of those involved, but for a few weeks it looked like it might become a long and serious rebellion.
There was another question that came up after Madison’s proposed amendment. Qum1ering might be needed, in the future, by the American government; quartering might be desired, in the future, by Americans threatened by local strife.
But if there was going to be the possibility of forced quarterng, who would control it, who would set the terms and limits? The president? Congress? Congress might move too slowly. A president might move quickly, but without sufficient deliberation. Congress was already being given, in the Constitution, the authority to raise and support armies, to make rules for the regulation of the land and naval forces. Didn’t this suggest it should be given jurisdiction over forced quartering?
Now the framers of the Constitution were discussing all these issues, and arguing them. Madison’s proposed wording seemed to get lost in the debate. Eventually it was rejected, and to this day nobody seems to know exactly why.
Professor Tom Bell of the Chapman University School of Law in California, writes in his persuasive monograph, The Third Amendment—Forgotten But Not Gone, that there were several reasons to believe that the Madison proposal was rejected because those who rejected it “preferred to remain silent on the issue of who should control quartering during times of unrest.” They may have been “unable or unwilling” to resolve the issue, and they may, he suggests, have wanted to leave power over quartering to the president, “or at least not foreclose that option.” They may have felt that the president was best able to direct quartering during conflicts, and yet expressly giving him that authority might stir up “a political tempest.”
Ultimately the framers agreed on this version of the quartering provision, which was adopted as the Third Amendment. It was quickly tested in the war of 1812, and quickly abused. When the American Congress declared war against England it said nothing about the quartering of troops. But soon enough, American troops were being quartered in American homes. Still, many if not most of those forced to accept forced billeting appear to have been compensated by the government in Washington when the war was over, and this compensation can be assumed to have been awarded in recognition of the fact that the law had been broken, the Third Amendment violated.
Almost fifty years after the War of 1812, almost a full century after New England was roiled by the spirit of rebellion, America’s Civil War began. It has been said that this war did not raise Third Amendment issues, but Bell has argued that it did. Bell: “An account given of the Union’s invasion of Virginia’s Eastern Shore indicated its prevalence. The Union’s occupying force ‘was better received and more friendly to most of their captors’ than any other during the war”. Yet even here the Army quartered troops on local civilians.” He notes that it might be argued that the citizens of Virginia, and other rebel states, were no longer, by virtue of their rejection of and attempted departure from the Union, covered by its laws. But American troops were quartered, too, in states that had remained in the union. The Committee on War Claims estimated that half a million dollars in claims for rent and damage to real estate came from loyal states following the war, and two and a half million from rebel states.
To make it more complicated, the Congress of the United States never declared war on the Confederacy; it had in fact never recognized it. The southern states had lifted arms in a rebellion—what might be called a huge and massive case of local unrest.
And so one of history’s ironies: The Third Amendment was violated in the American Civil War which had been provoked by the anti-slavery abolitionists of New England who were the spiritual and in some cases literal heirs of the hardy men of Massachusetts who rose against England, in pm1 because of its tyrannical forced billeting of English troops, which gave rise to the creation of the Third Amendment.
History is sometimes very circular, full of twists. The Committee on War Claims later said the South’s insurrection had created a de facto state of war; but the Congress never “prescribed” forced billeting “by law”—it never prescribed at all. It neither authorized nor regulated forced billeting.
In the courts in the past two centuries, the Third Amendment has been a walk-on in dramas about the rights of citizens, not a star. It has been used to buttress claims regarding the right of privacy. The most recent famous Supreme Court case in which it was mentioned was the celebrated Griswold v. Connecticut in 1965, which was a case about . . . whether a state could bar the legal use of artificial contraceptives. Here the Third Amendment was referred to as one of a number of amendments illustrating the framers’ desire to protect the privacy rights of citizens. Earlier, in Poe v Ullman, a judge of the high comt asked, “Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home ‘without the consent of the Owner’ should bar the police from investigating the intimacies of the marriage relation?”
The Third Amendment has been used to illustrate the claim that the founders meant to distinguish between times of war and times of peace; it has been used in cases dealing with the manner in which a subpoena can be served; it has been used to define what a soldier is; it has been used in connection with the Fifth Amendment’s takings clause. It just hasn’t been used very often in cases specifically testing . . . the Third Amendment.
The only well-known case in which the Amendment itself was the focal point in a court of law in our lifetimes was Engblom v Carey, in 1982, when a Circuit Court found that it might have been violated when the state of New York quartered National Guard troops in the on-site homes (perhaps more properly called “living spaces”—the guards were allowed to live in state-owned, dorm-like structures) of striking prison personnel. But it was silent on remedies for violations of the Third Amendment, and in the end the defendant won the case. In that case the question was whether the state of New York violated the amendment when it quartered National Guard troops in the on-site residences of striking prison workers.
Beyond that, the Third Amendment has been used, cited, and asserted in cases involving just about every issue except . . . the quartering of government troops in the private homes of Americans. Because that, thank God, has not been a burning issue in the last hundred years.
So is it no longer necessary? It’s still necessary.
As the J. F. A. Davidson has written in The New American, the Third Amendment reflected the recognition of the framers of the Constitution that “government is the institutionalized monopoly of force; that the instrument of that monopoly is the standing army; and that unless government is constrained by rigidly defined constitutional limits on the use of force, a standing army will inevitably become an instrument of despotism, not one of national defense.”
Can we suppose the Third Amendment will never have a direct application to our lives again, that it belongs in the past, which is the only place where it lives?
No. Because, to paraphrase Salisbury, we can expect the unexpected.
Suppose down the road there is a nuclear or biological or chemical incident in, say, downtown Manhattan. The island is quarantined; in time there is civil unrest; in time the 101st Airborne comes in to restore the peace. Where do they live in this chaotic and uncontrolled environment as they realize they must occupy the island? Perhaps among the people. The government condemns their property and seizes it.
Or: it is 2048, and a handful of states in the South and Southwest declare they are no longer willing to be part of a federal Union that they feel has denied them their traditional and ancestral lights. (This “Second Secession” followed the nation-changing work of the Second Continental Congress of 2024. That Congress had repealed the Second Amendment, rewritten and altered the meaning of the First Amendment to protect only “commonly agreed upon views and assertions that are in the judgement of the community constructive,” and explicitly proscribed the right to smoke cigarettes and cigars. The Second Constitutional Congress had retained the Third, however; and later, in papers, it emerged they did this because they recognized it to be harmless, and yet knew that its retention would mollify and reassure the Old Constitutionalist delegates, who were causing problems in the drafting.) Soldiers come in to put down the simmering and occasionally erupting rebellion. The secretary of defense, the head of the Internal Security Construct, and the joint chiefs of National Forces advise the president to send ground troops to Virginia, South Carolina, Florida, Texas, and southern California. The president issues an executive order to that effect. In the chaos and skirmishing that follow, the suburban mini-mansions built during the Great Prosperity of 1980-2004 and owned by the families of software entrepreneurs in Virginia and southern California are found to be perfect headquarters (spacious, fully wired) for federal government military commanders; the mini-mansions are occupied, the families turned out or allowed to live in a comer of the basement. The rebellion is put down. Can the citizens who had been turned out of their mini-mansions take the government to court?
You don’t need to be a seer or prophet to come up with such possibilities; all you need is imagination, which is always a helpful thing to use in thinking about future history where imagination is not so much creative as prudent. Suppose in 1936 you see a world war coming; suppose you guess the combatants on each side; suppose you begin to imagine what the Japanese might do once they have decided they are willing to pay the price of war with the United States. They might hit first, but where? The entire American fleet is in Pearl Harbor; Japanese bombers could reach Hawaii from aircraft carriers. Why—they could bomb our sleeping fleet! Once, of course, that sounded unlikely, even fantastical. But only five years later it happened.
“Expect the unexpected.” The Third Amendment may be last in court and last in the hearts of its countrymen, but we have no reason to assume that it will always be so. Some day we may be grateful that it is there, in our Bill of Rights. “Only the dead have seen the end of war,” and only the dead have seen the end of the constant tension that inevitably exists between citizens and their governments over issues of governmental abuse of power.
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