History and Interpretation of the Third Amendment

The Third Amendment to the U.S. Constitution states that the federal government cannot house soldiers in a person's home without their consent. ​This straightforward amendment has generated little debate about its meaning or interpretation. However, it does provide some insight into other issues.

What the Third Amendment Says

"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."

What The Third Amendment Means

The Third Amendment clarifies two situations related to the quartering of soldiers:

• In times of peace, the government cannot make someone quarter soldiers in their home without their consent.

• During a war, Congress could pass a law regarding quartering soldiers in private homes. In that case, the military may quarter soldiers in private homes but must follow the rules laid out by Congress.

The Third Amendment also reinforces several other ideas important to the Framers. For example, it protects citizens from government intrusion into their homes. Similar to the Fourth Amendment's protections against unreasonable searches and seizures.

Moreover, it protects citizens' privacy rights within their residences. In Griswold v. Connecticut (1962), the Supreme Court relied in part upon the Third Amendment to hold that a fundamental right to privacy exists.

The Third Amendment is also the only one that delineates how the government may interact with citizens during war versus peacetime. This further reinforces the idea that civilians ultimately control the armed forces.

History of the Third Amendment

The Third Amendment directly addressed an issue of concern in 17th- and 18th-century England and America: standing armies.

In 17th-century England, the Stuart kings had a penchant for fielding standing armies. The armies were comprised of professional, paid soldiers loyal to them. The Stuart kings used these armies and other militias "to suppress political dissidents." The armies would often disarm citizens who objected to their kings. They would also house soldiers in their homes without their consent.

English citizens did not take kindly to the Stuart kings' actions. In the late 1600s, they rose against them. They ultimately overthrew King James II during the so-called Glorious Revolution.

The English Parliament passed the Anti-Quartering Act in 1679. The Act prohibited quartering and billeting English soldiers in private homes without the owners' consent. Later, in 1689, William III and Mary II entered into the Declaration of Right. This declaration later became the English Bill of Rights. It guaranteed that the monarchy would not disarm its citizens and would have no standing armies. The Mutiny Act of 1689 also restricted quartering soldiers in homes.

Rising Tensions and the American Revolution

Most protections against the quartering of soldiers in private homes did not apply to the American Colonies. Following the French and Indian War, Parliament passed the Quartering Act of 1765. The Act required the colonists to pay for English soldiers' shelter and supplies. The colonists housed English soldiers in their homes, inns, alehouses, or similar buildings. The Act applied even during times of peace.

The colonists grew upset about having to provide supplies to the British soldiers. This anger increased tensions between colonists and the British government. And those tensions came to a head with the Boston Massacre in 1770. There, British soldiers fired on a crowd of civilians, killing five. The Boston Tea Party in 1773 also resulted from the quartering of troops, among other things.

In response, the British Parliament passed the Quartering Act of 1774, also called the "Intolerable Acts" or "Coercive Acts." This gave British soldiers greater power to seize private buildings and homes. Tensions only continued to rise after Parliament passed the Act.

The United States signed the Declaration of Independence in 1776. In it, the Founders listed their grievances against King George III. Chief among the grievances was housing soldiers:

"He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures…quartering large bodies of armed troops among us."

When the colonists defeated Britain in 1783, they had to determine how to run their new nation. Near the top of the list was ensuring the national government could not quarter soldiers in private homes. But, interestingly, the Articles of Confederation were silent on quartering soldiers.

The Constitutional Convention and the Bill of Rights

In 1787, the Second Continental Congress called a convention to discuss amending the Articles of Confederation. Delegates spent the summer of 1787 discussing what would eventually become the Constitution of the United States. The states ratified the Constitution in 1788.

The Founding Fathers included the Third Amendment in the Bill of Rights to avoid future problems with quartering soldiers. James Madison of Virginia introduced the Third Amendment to the House of Representatives. The states ratified the Bill of Rights in 1791.

Interpretation of the Third Amendment

The Supreme Court has never decided a case based exclusively on the Third Amendment. Apparently, its text and purpose are so clear that there is not much for the Court to interpret.

However, the Third Amendment is vital to the relationship between individuals and the military. This section provides a selection of lower court cases that have interpreted the Third Amendment.

Engblom v. Carey (1982)

Engblom v. Carey was the first time a federal court decided on an issue involving the peacetime quartering of troops. The Second Circuit Court of Appeals held that the Third Amendment doesn't just apply to homeowners. It applies to anyone who lawfully occupies a space and has a right to exclude others from entering it.

The case involved two corrections officers from New York who sued the Governor and other state officials. The officers worked and lived at a Warwick, New York corrections facility. They lived at the facility, along with approximately 40 other officers.

On April 18, 1979, officers across the state went on strike. Most of the officers at the correction facility joined the strike.

The facility's superintendent issued an order in response. It stated that any officer on strike could not enter the facility grounds. The order excluded the officers from accessing their housing.

The superintendent also declared an emergency at the facility. Soon after, approximately 260 members of the National Guard arrived at the prison.

Due to the superintendent's order, the striking officers could not access their housing. The facility cleared the housing to allow the National Guard to live there. The strike ended on May 5, 1979.

The two corrections officers sued. They alleged that the government violated their Third Amendment and due process rights. Specifically, they argued that:

• The government evicted them from their residence without "notice or hearing," and

• National Guard members (i.e., "soldiers") occupied the residences without their consent.

The defendants (the governor and state officials) prevailed on a motion for summary judgment at the U.S. District Court level. The Court ruled that the officers had no "sufficient possessory interest" in their facility/residence. Therefore, they were not entitled to the protection of the Third Amendment. The District Court dismissed the officers' Third Amendment claim.

The Second Circuit reversed the District Court's dismissal of the Third Amendment claim. In doing so, it analyzed property rights the Fourth Amendment grants to citizens.

The Fourth Amendment protection against unreasonable searches and seizures applies to anyone with a legitimate expectation of privacy. The Supreme Court previously held that a person may have a legitimate expectation of privacy even if they don't have a "common law interest" in either real or personal property.

Instead, the expectation of privacy generally applies to "one who owns or lawfully possesses or controls property...". The Second Circuit noted, for example, that someone renting an apartment has a legitimate privacy interest. This expectation protects them against unreasonable searches and seizures.

Applying these principles to the officers' living quarters, the Second Circuit held that the officers had a lawful interest in the quarters. The officers thus had a right to exclude others from their spaces. They also had a legitimate expectation of privacy in them. Therefore, the fact that the government quartered soldiers in the officers' homes during peacetime violated the officers' Third Amendment rights.

Engblom clarifies that the Third Amendment applies to any tenancy in which a person has a legitimate expectation of privacy. So, it applies to renters and homeowners alike.

Custer County Action Association v. Garvey (2001)

In Custer, several parties sued the Federal Aviation Administration (FAA) over military aircraft flying above their properties. Among other claims, the plaintiffs argued that the flyovers violated their Third Amendment rights by "appropriating [their] property interests and invading [their] privacy for military purposes during peacetime without their consent."

The 10th Circuit Court of Appeals ruled that the FAA's actions were constitutional. Relying on Engblom, the court held that the group's property rights did not apply to "navigable space over their lands."

Specifically, the court did not believe the Framers intended the Third Amendment "to prevent the military from regulated, lawful use of airspace above private property without the property owners' consent." It also noted that, if it held otherwise, the U.S. military would need to obtain landowner consent everywhere it flies aircraft.

In writing the Third Amendment, the Framers likely anticipated future wars fought on American soil. Fortunately, those fears have not come to fruition. However, the end of this article discusses an attack on American territories in World War II.

The Third Amendment and the Aleutian Islands

Soon after the attack on Pearl Harbor in 1941, Japanese forces initiated a military campaign on and around the Aleutian Islands. The islands were U.S. territories off the coast of Alaska. In response, the U.S. military evacuated the native Aleutians and sent in military personnel.

The military quartered soldiers in at least one evacuated village in the Pribilof Islands in September of 1942. As mentioned above, the Third Amendment states that Congress can make rules regarding quartering soldiers during times of war. But, there is no evidence that Congress made such rules in this case.

Instead, as Tom Bell, a professor at Chapman University School of Law, notes:

"Much of the evacuation and interment was executed in a slapdash and ad hoc manner, in the heat of war and far from officials on the mainland."

The military and the Department of the Interior have coordinated very little during the campaign. Once the military evacuated and placed the Aleuts into internment camps, they had free reign of the islands.

The available facts indicate that the military violated the Aleuts' Third Amendment rights by occupying their homes during wartime without Congressional authorization. However, the Commission on Wartime Relocation and Internment of Civilians found that the military committed no legal wrongs.

In 1988, Congress issued the Aleutian and Pribilof Islands Restitution Act to provide compensation to residents of the islands. However, any Aluetian who accepted relief from the Act waived their right to file a claim against the United States due to their relocation.

Unfortunately, the Third Amendment violations were just one of many violations U.S. soldiers apparently committed during the campaign. For more information about the Aleutian Islands campaign, read Bell's article, "Property" in the Constitution: The View from the Third Amendment.