3rd Amendment

When was the last time you worried about the government forcing you to house soldiers in your barn, tavern, or empty buildings? Probably not recently - at least not for the past few hundred years! The Third Amendment in the Constitution was designed to protect citizens from the government forcing them to provide housing for soldiers. It was a major issue in the 18th century, but today we understand the Third Amendment more in terms of the right to privacy and the right to be left alone.

3rd Amendment Definition

The Third Amendment is the one people talk about the least. But that doesn't mean it's irrelevant. The Third Amendment was designed to protect American citizens from being forced to provide shelter and lodging to soldiers. Today, it is understood in the context of protecting citizens from military interference and protecting their privacy.

Constitution 3rd Amendment

Like many of the provisions in the Bill of Rights, we can trace the Third Amendment's roots back through British history.

Petition of Right of 1628

King Charles I, who ruled from 1600 to 1649, was not popular. Parliament refused to finance his war with Spain, and he responded by implementing a new tax that forced citizens to pay or face imprisonment. If poor people couldn't pay, they would be required to provide lodging for soldiers. Parliament was furious and viewed this as a violation of the rights in the Magna Carta, which talked about gaining consent from citizens before taxing them. They forced him to sign an unprecedented list of rights called the Petition of Right of 1628. The Petition contained four important provisions:

1. No taxation without consent of Parliament
2. No imprisonment without cause
3. No martial law in peace time
4. No more forcing subjects to quarter soldiers.

Anti-Quartering Act 1679

Unfortunately, Charles I continually ignored provisions within the Petition of Right, followed by his son Charles II. Parliament again tried to restrain the king's power by passing the Anti-Quartering Act of 1679, which forbade involuntary quartering.

Bill of Rights of 1689

Charles II's brother (and Charles I's other son) James II followed in his family's footsteps by using military threats in response to attempts to pass laws for individual rights. Eventually, the people rose up to overthrow James II in the Glorious Revolution of 1689. One grievance in the subsequent Bill of Rights cited James II's policy of "raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law."¹

The Quartering Acts of 1765 and 1774

The Glorious Revolution put the king in his place, ushering in a new era of protection for British citizens. But colonists in the Americas had a different set of rules and didn't enjoy the same rights as British citizens, which eventually led to the American Revolution.

In the aftermath of the French and Indian War (also called the Seven Years' War), many British soldiers remained stationed in the colonies. One of the provisions that upset the colonists the most was the Quartering Act of 1765, which required colonists to find and pay for lodging for British soldiers. They weren't required to house them in their own private homes, but it infuriated the colonists nonetheless, and many of them refused to comply.

Figure 1: A drawing from 1700 of British soldiers invading an American colonist's home. Source: Pouazity3, Wikimedia Commons, CC-BY-SA-4.0

In Boston, there were no barracks available, leading soldiers to pitch tents in the town square. Rising tensions and close quarters led to the Boston Massacre of 1770, where residents threw rocks at soldiers who fired back, resulting in several deaths.

In 1774, the King doubled down with the passage of a new Quartering Act, which authorized royal governors to use additional housing options such as empty buildings (although it still prohibited the use of private homes) to quarter soldiers. It expanded the Act throughout all of the colonies, who viewed it as the King's attempt to surveil and intimidate them by requiring soldiers to stay in their towns.

American Revolution and the Constitution

Eventually, the tensions boiled over into an all-out war. The colonies declared themselves independent. As we know, they ended up winning the war, and along with it the task of forming a new government.

Developing a new constitution proved to be extremely difficult. After several years of deterioration under the Articles of Confederation, which had been passed during the war, Congress decided to create a new Constitution in 1787. However, one faction in Congress - called the antifederalists - was still very wary of creating a strong federal government. They feared that it would become too powerful and abusive, which was a valid fear given the history under British rule. Led by the antifederalists, several states refused to ratify the Constitution unless they added a Bill of Rights.

Bill of Rights 3rd Amendment

The Bill of Rights, passed in 1791, contained a list of rights that the federal government was explicitly prohibited from violating. Some of these rights included freedom of speech, religion, and the press (First Amendment), and the right to a well-regulated militia and to bear arms (the Second Amendment). The Third Amendment focused on the recent grievances around forced quartering. Below is the full text:

3rd Amendment Rights

You most likely don't really worry too much about whether the government will ask to house soldiers in our barns and taverns - the thought probably hasn't even gone through your mind! The issue of quartering soldiers was extremely controversial in the 17th and 18th centuries but not so much today.

Some have looked at the 3rd Amendment Rights as an example of constitutional obsolescence. That is, the idea that some of the provisions in the Constitution may not be relevant, practical, or needed anymore.

The Third Amendment is the most-cited example of Constitutional obsolescence, but others argue that it still has relevance today in the right to privacy.

Right to Privacy

One issue that has become a priority in recent decades is the right to privacy. The Constitution doesn't say anything explicitly about the right to privacy, yet it does include this important prohibition on the government requiring private citizens to house soldiers. Because of this, many historians and legal scholars (and sometimes even the courts) have interpreted the Third Amendment to cover the modern understanding of the right to privacy. Or, as Justice Louis Brandeis called it, the "right to be left alone."

3rd Amendment Court Cases

Even though the 3rd Amendment is the least-cited and generally considered the least controversial provision in the Bill of Rights, it has still been cited in a handful of cases that had important consequences.

Griswold v. Connecticut

In 1960, the Federal Drug Administration (FDA) approved for the first time an oral contraceptive - a birth control pill. However, some states, including Connecticut, had laws against using or providing contraceptives, even to married couples. Two people opened a Planned Parenthood in Connecticut and provided birth control to married couples and counseled them on family planning. Within 9 days, they were arrested and fined.

Figure 3: A display of birth control pill options at a pharmacy in 1968. Source: Marion S. Trikosko, Library of Congress

The case went to the Supreme Court, which ruled that the Connecticut law was unconstitutional because deciding whether couples should have access to contraception violates the right to privacy. While the Constitution doesn't explicitly protect the right to privacy, they argued that several amendments in the Bill of Rights (namely, the First Amendment, 3rd Amendment, Fourth Amendment, and Ninth Amendment) created a penumbra around the right to privacy.

The Griswold v. Connecticut decision has also been used in other cases around marital privacy, especially around gay rights and privacy in matters of sexuality.

Engblom v. Carey (1982)

In the late 1970s, a group of prison workers in New York went on strike to demand better wages and reforms. The state had provided the workers with dormitory-style apartment housing near the prison, but moved to evict them when the strike happened. Meanwhile, they called in about 250 members of the National Guard to provide security for the prison during the strike and house them in the apartments.

Two of the workers sued the state after the strike ended, arguing that it had violated the Third Amendment by housing the National Guard. The court ruled that the National Guard did meet the definition of "soldiers" in the Third Amendment, but that they were being housed as employees, Additionally, because of the need to staff the prison during the strike, the Third Amendment didn't apply.