The Third Amendment
By Gordon S. Wood
The Third Amendment seems to have no
direct constitutional relevance at present; indeed, not only is it the
least litigated amendment in the Bill of Rights, but the Supreme Court
has never decided a case on the basis of it.
The federal government today is not likely to ask people to house
soldiers in their homes, even in time of war. Nevertheless, the
amendment has some modern implications. It suggests the individual’s
right of domestic privacy—that people are protected from governmental
intrusion into their homes; and it is the only part of the Constitution
that deals directly with the relationship between the rights of
individuals and the military in both peace and war—rights that emphasize
the importance of civilian control over the armed forces. Some legal
scholars have even begun to argue that the amendment might be applied to
the government’s response to terror attacks and natural disasters, and
to issues involving eminent domain and the militarization of the police.
When the amendment was written in the eighteenth century, Americans
and Englishmen in general believed that the issue of quartering troops
in private homes was of great and palpable significance. During the
course of their history the English had developed a deep dislike of
standing armies; they especially objected to the government’s compelling
them to quarter soldiers in their homes.
Yet the English attitude was contradictory. At the same time as the
English protested the quartering of troops in private homes, they were
reluctant to house the soldiers in barracks separated from the civilian
population. The English remained so suspicious of standing armies that
they feared that concentrations of soldiers in barracks might pose
military threats to the people’s liberties. Thus, the English concluded
that if they had to have an army, it must be scattered among the
populace and housed preferably in inns, alehouses, stables, and private
homes. But as Parliament made clear in the Glorious Revolution of
1688-89, the government could not billet troops in private homes without
the consent of the owners. So the English fear of standing armies was
inextricably connected to their fear of having soldiers quartered in
their homes without their consent.
During the Seven Years War between Britain and France (called in the
North American colonies the French and Indian War) the colonists who had
inherited the traditional English fear of standing armies resented
having to billet the British redcoats. Americans preferred to rely for
their protection on local militia, not on professional soldiers.
Although the peace treaty of 1763 ended the war and ousted France from
the North American continent, the British government believed it still
needed tens of thousands of soldiers in America in order to police the
newly acquired territories. Since the earlier English quartering act did
not extend to the colonies, Parliament in 1765 passed a Quartering Act
that set down the regulations for housing soldiers in the American
colonies during time of peace. The colonists were to provide barracks
for the soldiers, and if they were not available, the troops were to be
billeted in inns, stables, and alehouses; if these were insufficient,
the governors and councils of the provinces were authorized to use
uninhabited houses, barns, and other buildings to lodge the soldiers.
The colonists were required to furnish provisions and necessaries for
the troops, including firewood, bedding, and beer.
The colonies, particularly the province of New York, objected to this
act, especially as it obliged them to raise money to support the
soldiers without the consent of their provincial legislatures. Tensions
over the presence of British soldiers in the colonies increased. In 1768
royal troops were redeployed to Boston, Massachusetts, to assist with
law enforcement in a colony that seethed with resentment against British
authority. Many Bostonians became convinced that this standing army
quartered among them in time of peace in violation of English law was
designed to overwhelm them with military force. With nearly four
thousand redcoats billeted in a town of fifteen thousand civilians, it
was only a matter of time before an incident occurred. On March 5, 1770,
nervous British soldiers fired upon a hostile crowd and killed five
civilians, resulting in what the colonists called the Boston Massacre.
In the eyes of the British government Boston seemed to be a hotbed of
fanaticism. The Tea Party in December 1773, in which patriots threw
£10,000 of tea into Boston harbor, confirmed this view and led
Parliament in 1774 to pass the Coercive Acts, among which was a new
Quartering Act. This act went beyond the earlier statute by authorizing
the royal governors to order the billeting of soldiers in private homes
if the colonists refused to provide other lodging.
These British actions lay behind the Continental Congress’s
expressions of American grievance. In its Declaration and Resolves on
October 14, 1774, Congress protested the presence in a time of peace of a
standing army and the quartering of troops in the colonies without
their consent. Then in the Declaration of Independence of 1776, two of
the many accusations Congress leveled against the king were his keeping
“among us, in Times of Peace, Standing Armies, without the Consent or
our Legislatures,” and his “quartering large Bodies of Armed Troops
among us.”
Many of the Revolutionary state constitutions drafted in 1776-77
included provisions warning of the dangers of standing armies in
peacetime and stating, as the Virginia Bill of Rights of 1776 did, “That
a well-regulated militia, composed of the body of the people, trained
to arms, is the proper, natural, and safe defense of a free State.” Some
state constitutions also affirmed, as did the Delaware Declaration of
Rights of 1776, “that no soldiers ought to be quartered in any house in
time of peace without the consent of the owner, and in time of war in
such manner only as the legislature shall direct.” Thus when the new
federal Congress came to write the Third Amendment to the Constitution
in 1789, it had considerable experience and precedent to rely on. There
was nothing new about the Third Amendment; it simply declared what had
become conventional American wisdom.
source
Gordon S. Wood Alva O. Way University Professor and Professor of History Emeritus at Brown University
Hot Forum Topics
