The Third Amendment: Quartering of Troops

Contemporary Americans pay little heed to the Third Amendment, yet it was near and dear to the hearts of their ancestors. Colonial Americans had chafed at being forced to provide room and board for British soldiers, and they made sure the new Constitution protected them from such a practice. In fact, more states included this provision in proposed amendments to the Constitution than freedom of speech. But the Supreme Court has never specifically ruled on the meaning of the Third Amendment, although the Court has cited it as support for a constitutional right of privacy.

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner”

This part of the Third Amendment contains an outright ban on quartering soldiers during peacetime in “any house” without the owner’s permission.

The term “any house” includes both public houses, such as hotels and inns, and private homes. New York was the first American colony to ban the quartering of troops in private homes without the owner’s consent, as part of its Charter of Liberties and Privileges in 1683. But ironically, the only major incident during the colonial period in which the British used force to quarter troops in private homes was also in New York. It happened during the French and Indian War (1754-1763), in which the British defended the disputed western territories of their American colonies from the French and their allied Native American tribes. In 1756, the citizens of Albany refused to quarter British troops in their homes while a barracks was being built, and the commander of the British army took the homes by force.

After the war was over, the British soldiers did not leave America.

England thought the Americans should rightfully bear the costs of their own defense, and Parliament passed the first Quartering Act in 1765. It required colonial legislatures to pay for the room and board of British soldiers stationed in America, and rent quarters when the regular barracks overflowed. The colonists opposed the Quartering Act as a tax forcing them to pay for a permanent or standing army they did not want. Tensions over the Quartering Act led to the Boston Massacre in 1770. The Massachusetts legislature refused to house thousands of British troops who had come to Boston to enforce taxes on imports. Friction with townspeople led to a confrontation outside the Customs House, in which British soldiers killed five Americans. Parliament passed a second Quartering Act in 1774, as part of a series of laws the Americans called Intolerable Acts. The new law authorized British troops to be quartered in private homes, as well as public houses.

When the colonies separated from England two years later, they specifically included in the Declaration of Independence as one of their grievances that the king had agreed to laws “for quartering large bodies of armed troops among us.” After the Revolutionary War, several states prohibited peacetime quartering of troops as part of their constitutions.

And during the ratification debates on the U.S. Constitution, Patrick Henry objected to its lack of a ban on peacetime quartering of troops. His arguments carried great weight, and the Third Amendment was ratified as part of the Bill of Rights in 1791.

“Nor in time of war, but in a manner to be prescribed by law”

The Third Amendment does allow troops to be quartered in houses without the owners’ consent during wartime. However, adequate procedures for reimbursing the owners must be enacted. Some legal scholars argue that during the Civil War, the quartering of Union troops in privates homes violated the Third Amendment, because Congress never authorized such action.

But the Supreme Court has never heard a case specifically about the Third Amendment, nor has it ruled that the Third Amendment applies to the states as well as the national government. The only court case that did address the issue of quartering troops was Engblom a Carey (1982), decided by the U.S. Court of Appeals for the Second Circuit-one level below the Supreme Court. In that case, the circuit court ruled that the state of New York violated the Third Amendment when it took over the rented, on-site dorm rooms of striking prison guards and housed National Guard troops there instead. However, Marianne E. Engblom, one of the striking guards, lost her case on other grounds.

The Third Amendment has long been understood to reinforce a citizen’s right to privacy. In 1833, Justice Joseph Story wrote in his famous treatise on the Constitution that the Third Amendment protects “that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.” Later Supreme Court rulings would extend this principle to support a generalized right to privacy not specifically mentioned in the Constitution.

Justice William Douglas wrote in Poe a Ullman (1961): “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 also bar the police from investigating the intimacies of the marriage relation?” The Supreme Court later ruled in Griswold v. Connecticut (1965) that the Third Amendment-along with the First, Fourth, Fifth, and Ninth Amendments-established “zones of privacy” that gave married couples the right to use contraceptives.

Many Americans believe that the right to privacy is one of the most important constitutional freedoms. Although today the Third Amendment is seldom used to protect private homes from soldiers, it does continue to help keep those homes private from the government.