Quartering of Troops
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 Amendment combines a straightforward ban on nonconsensual, peacetime quartering of soldiers in citizens’ houses with a requirement that wartime quartering be done by means approved by the legislature. The brief congressional debates on the text make clear that the amendment reflects an effort to balance private property rights and the potential wartime need for military quarters.
The Anti-Federalists used the absence of a ban on quartering as an argument against ratification. Once the concept of a Bill of Rights was agreed upon, however, there was little controversy over the inclusion of a ban on quartering. Six of the original thirteen states also adopted constitutional provisions banning the quartering of soldiers.
The British practice of quartering soldiers in America grew out of the lack of regular army bases, unclear legislative authority for British army quartering in America, and the need to move large bodies of troops about the country during conflicts with the French and Indians. Although there were numerous conflicts over quartering in both Britain and America before the 1770s, the most significant episodes concerned the British quartering of soldiers in private homes to punish the people of Boston under the Intolerable Acts of 1774.
Because of its clear text, there have been few court opinions discussing the Third Amendment. Recently, the Supreme Court declared that the Amendment has not been “fully incorporated” by the Due Process Clause of the Fourteenth Amendment and therefore, by implication, it is not applicable to the states, McDonald v. City of Chicago (2010). The Court ignored an earlier federal circuit court opinion that had found the Amendment was indeed incorporated. Engblom v. Carey (1982). In Engblom, the federal circuit court also determined that residences of all types would be subject to Third Amendment protection. The case had arisen when New York State correctional officers on strike were evicted from their state-provided residences, which were then provided to National Guardsman. Upon remand, the district court dismissed the state correctional officers’ suit without reaching the substance of the Third Amendment claim.
Other courts have not been receptive to Third Amendment claims. One federal court dismissed as bordering on the “frivolous” the assertion that federal approval of military flights through the airspace over one’s home violated the Amendment. Custer County Action Ass’n v. Garvey (2001).
Earlier, the Supreme Court had cited the Third Amendment as part of non-originalist interpretations that list it as one of the sources of “penumbras, formed by emanations” that create a zone of privacy in no specific clause of the Constitution. For example, the Court cited it in the name of marital privacy as support for constitutional restrictions on state governments’ abilities to regulate the sale of contraceptives in Griswold v. Connecticut (1965).
Court action has been rare because the quartering problem is largely solved today by the government’s paying communities to host military bases.
Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117 (1993)
Andrew P. Morriss and Richard L. Stroup, Quartering Species: The ‘Living Constitution,' the Third Amendment, and the Endangered Species Act, 30 Envtl. L. 769 (2000)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), on remand. 572 F. Supp. 44 (S.D.N.Y.), aff ’d per curiam, 724 F.2d 28 (2d Cir. 1983)
Custer County Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir. 2001)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)