The first and second amendments get a lot of attention, but the third rarely goes to court. It reads as follows: “No soldier shall, in peacetime, be confined to a house, without the consent of the owner, or in time of war, but in a manner to be prescribed by law.”
The United States ratified it in response to a very specific set of circumstances at the end of the 18th century involving the British army. Despite this, there are some legal cases of the 20th and 21st centuries in which the courts have mentioned or considered the amendment.
Third Amendment Responds to British Cantonment Laws
Between 1754 and 1763, the British Empire sent tens of thousands of soldiers to its American colonies to fight the French and Indian War for control of the Ohio River Valley. Subsequently, many of these soldiers continued to live as a standing army in the 13 colonies. In 1765, the British Parliament passed a cantonment law requiring the colonies to feed and house these soldiers.
“The settlers were to provide soldiers with barracks and, if they were not available, the troops were to be stationed in inns, stables and shacks,” writes Gordon S. Wood, professor emeritus of history at Brown University, for the National Center for the Constitution. “[I]if insufficient, provincial governors and councils were allowed to use uninhabited houses, barns and other buildings to house soldiers. “
This act was unpopular in the colonies, especially after the Boston massacre of 1770 in which British troops shot at a crowd and killed five people. In response to growing unrest in the colonies, Parliament introduced an even more pervasive cantonment law in 1774 as part of the so-called “intolerable acts” or “coercive acts.” The law required settlers to house and feed British soldiers in their private homes if there was no other place for the soldiers.
READ MORE: 7 events that enraged settlers and led to the American Revolution
This cantonment was among the grievances listed by Thomas Jefferson in the Declaration of Independence. More specifically, he accused King George III of keeping “among us, in peacetime, standing armies, without consent or our legislative assemblies”, and “confining large army corps among us”.
After the American Revolution, constitutional drafters wondered whether the United States should even have a standing army. Federalists won this debate, but James Madison drafted the third amendment to the Bill of Rights to ensure that the federal government could not force local governments, businesses and citizens to house American soldiers.
“In the end, the founders decided that a standing army was a necessary evil, but that the role of the soldiers would only be to dissipate foreign threats, not to enforce laws against American citizens,” writes the reporter Radley Balko for the Journal of the American Bar Association. Balko adds: “During the first 50 years or so after the Constitution was ratified, military troops have rarely, if ever, been used for the proper application of laws. But, over time, that would change. “
READ MORE: What Nixon tapes reveal about the Attica prison uprising
Legal history of the Third Amendment
Since the third amendment was ratified in 1791, the United States Supreme Court has mentioned it only a few times. An example is the 1952 case of Youngstown Sheet & Tube Company v. Sawyer. In order to sabotage a national steel strike during the Korean War, President Harry Truman had issued an executive order to seize and exploit the country’s steel plants.
The court ruled that the president did not have the power to seize private property without an act of Congress. In the majority opinion, Justice Robert H. Jackson used the third amendment, which prohibited forced cantonment in wartime without the approval of Congress, to illustrate the court’s decision: “even in wartime, its seizure military accommodation required must be authorized by Congress. ”
In the case of 1965 Griswold c. Connecticut, the court argued that the first, third, fourth and ninth amendments suggested a right to privacy, and that this gave married couples the right to use contraception.
“The third amendment to its ban on confining soldiers” to any house “in peacetime without the owner’s consent is another facet of this privacy,” wrote judge William O. Douglas in the opinion. majority.
Although the United States Supreme Court has never weighed on who counts as a “soldier” under the Third Amendment, two lower courts have done so, creating precedents that the Supreme Court may cite in future cases.
In the case of 1982 Engblom v. Carey, the United States Court of Appeals for the Second Circuit ruled that the Governor of New York did not violate the rights of striking correctional officers at the Mid-Orange Correctional Center in New York when he expelled them from their residences and reassigned these residences and their jobs to the troops of the National Guard.
However, the court ruled that members of the National Guard are “soldiers” under the third amendment and that “the third amendment is incorporated into the fourteenth amendment for application to states”.
In 2015, the United States District Court for the District of Nevada cited this decision while considering whether the police violated the plaintiff’s third amendment law when they forcibly occupied his house in Mitchell v. City of Henderson, Nevada. This court sided with the police, ruling that they were not “soldiers” under the Third Amendment.