Bill of Rights at 225: The Very Successful Third Amendment


Bill of Rights at 225: The Very Successful Third Amendment

Dec 20, 2016 3 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Throughout our nation's history, vigorous debates and court battles have raged over the meaning and extent of the protections provided by different parts of the Bill of Rights. Many of these arguments have centered on the First, Second, Fourth, and Fifth Amendments. But there have been virtually no fights at all over the Third Amendment.

Some might claim this is a sign that the amendment was unneeded or unimportant. Actually, it's a sign of its unambiguity and its lasting success.

The Third Amendment provides that:

"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 prescribed by law."

The Third Amendment was prompted by actions of the English Crown that outraged ordinary Americans: Colonists had been forced to house British soldiers in their homes without their consent. This practice came to the fore in 1774 with Parliament's passage of the Intolerable or Coercive Acts, designed specifically to punish Bostonians for the Boston Tea Party.

This was the "party" thrown by Sam Adams and the Sons of Liberty in December 1773 in which they threw 342 chests of tea overboard in Boston Harbor to protest the Tea Act of 1773. Part of the punishment was a new Quartering Act that forced Boston homeowners and innkeepers to provide housing for British Redcoats for a pittance and not the actual cost of boarding them.

A curious fact of history: Bostonians were singled out for punishment despite the fact that there was a similar Delaware Tea Party shortly after the Boston party that sank even more chests of tea - more than 700. But as A Patriot's History of the United States points out, Sam Adams wasn't there to publicize the Delaware Tea Party, so no one remembers it.

What is important about this amendment is that it supported the Founders' view - also expressed elsewhere in the Constitution and the Bill of Rights - that American civilians needed to be structurally protected against the dangers of a standing army. They had seen the British army used as an internal police force to intimidate, harass, arrest, and otherwise coerce the colonists. Banning such quartering was a step that could be taken to prevent such actions being personally visited on civilians in their homes.

We see this same protection in the Second Amendment, whose purpose is not just to protect the right of Americans to hunt and defend themselves from ordinary criminals, but ultimately to protect themselves from a tyrannical government and its enforcers - a professional army. As Ninth Circuit Judge Alex Kozinski said in Silveira v. Lockyer in 2002: "The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed. . . . However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

This fundamental concept that our military cannot be used in domestic policing and law enforcement or to enforce domestic policy is also enshrined in the 1878 Posse Comitatus Act. It is so ingrained in American culture, society, and our basic values, that the average American does not realize how unusual this is in the history of civilization and the practices of many other nations. The Third Amendment is part and parcel of this structural protection.

There have been almost no cases in the courts over the Third Amendment. The federal government has never tried to violate the amendment. Since our very beginning as a nation, our military forces have been housed on bases acquired and paid for by the federal government.

One of the few times it has been mentioned was in the recent U.S. Supreme Court decision upholding the Second Amendment in McDonald v. City of Chicago. There the court simply noted that the Third Amendment was one of the few amendments that had not been incorporated by the 14th Amendment into applying to the states. Thus, the prohibition applies only to the federal government.

There are no current challenges to the Third Amendment. Nor are there likely to be any in the near future - unless we end up facing the type of doomsday situation that Judge Kozinski described. That is when it will be another tool in the arsenal the American people can use to take back their constitutional republic.

This piece first appeared in the Philadelphia Inquirer.