The Third Amendment

Podcast Transcript

The Bill of Rights to the United States Constitution holds some of the most treasured rights held by Americans.

This includes the rights of free speech, religion, assembly, due process, and protections against unreasonable searches and seizures, and self incrimination.

However, there are other parts to the Bill of Rights that don’t get quite as much attention.

Learn more about the Third Amendment and why it was put into the Constitution on this episode of Everything Everywhere Daily.

The Bill of Rights is one of the most important documents in American history, and one could argue, in world history. It was one of the first documents with the power of law that explicitly laid out a series of rights that were given to all citizens in a country.

Proposed in 1789 and ratified in 1791, the Bill of Rights was, on one hand, a timeless document, but on the other hand, it was very much a product of its time.

The authors of the Bill of Rights were fresh off the American Revolution and their primary concern was to ensure they didn’t have to suffer the indignities that they suffered under the British.

As such, some of the things in the Bill of Rights were of great importance to Americans in the late 18th century, but aren’t really relevant to people in the 21st century.

This, of course, brings me to the Third Amendment.

The Third Amendment is short enough that I can read it in its entirety right here. It 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.

To our modern ears, this might seem odd. My guess is that most of you have never thought of this and certainly have never spent any brain cycles worrying soldiers busting through your door to sleep on your couch.

It isn’t a very controversial amendment. I think everyone can agree they wouldn’t want soldiers living in their home against their will. By the same token, I also don’t think the military is really thinking about putting soldiers in people’s homes.

So, why is it there?

It all started back in 1754 with the French and Indian War, which was just the North American theater of the larger Seven-Year War. If you remember back to my episode on the subject, this could be considered the first ever world war, given that it was fought on multiple continents around the world.

The war arose from long-standing territorial disputes between Britain and France over the Ohio River Valley and other parts of the North American frontier. Both European powers had colonial claims that overlapped in these regions and formed alliances with various Native American tribes—the British primarily with the Iroquois Confederacy, and the French with the Huron, Algonquin, and others.

The conflict officially began in 1754 when a young George Washington, then a Virginia militia officer, led a failed expedition against the French Fort Duquesne in present-day Pittsburgh, Pennsylvania.

Britain escalated its military commitment under Prime Minister William Pitt, deploying large numbers of troops and investing heavily in the war effort.

The war ultimately ended in a decisive British victory with the Treaty of Paris in 1763, which gave Britain control over Canada, all French territory east of the Mississippi River, and Spanish Florida. However, this triumph came at an enormous financial cost.

The British government emerged from the war with a massive debt, and maintaining peace in these newly acquired territories—especially the vast, restive interior—required a continued military presence.

British policymakers believed that colonial contributions to both defense and the cost of stationing troops were not only fair but necessary. Colonists, however, disagreed. They saw the large standing army not as a protective force, but as a tool of control, especially since the war against France was over.

Further compounding tensions was Pontiac’s Rebellion in 1763, a Native American uprising against British rule in the Great Lakes region. The violence convinced British authorities that a permanent military garrison in North America was essential for protecting settlers and asserting control over the frontier.

To support this standing army in peacetime, the Britaish enacted the Quartering Act of 1765. The act required colonial legislatures to provide housing, food, and supplies for British troops.

While this act did not force colonists to house soldiers in private homes unless absolutely necessary, many colonists believed it violated their rights and privacy, especially since they had not been consulted or represented in the decision.

The act also symbolized a broader issue: growing imperial overreach and the perception that Britain was treating the colonies more like subordinate territories than equal partners. The colonies objected not only to the financial burden of supporting the troops but also to the presence of those troops themselves, whom they increasingly viewed as occupiers rather than protectors.

The end of the French and Indian War didn’t end colonist discontent. If anything, it made things worse.

The original Quartering Act of 1765 had required colonial governments to provide barracks or public buildings, such as inns, stables, and alehouses, for housing British soldiers. If such accommodations were unavailable, the act allowed for temporary housing in other facilities, but it stopped short of explicitly allowing troops to be housed in private homes.

This restriction, combined with colonial resistance, rendered the act difficult to enforce. For example, in New York, the colonial assembly outright refused to fund the housing and supply of British troops, leading Parliament to suspend the assembly’s legislative powers temporarily in 1767.

Other colonies complied only grudgingly or partially, often delaying the implementation or resisting the full provisioning of soldiers.

British commanders, tasked with maintaining military discipline and a presence across a vast colonial landscape, often lacked sufficient housing, especially in key urban centers like Boston, where tensions were already running high.

Thus, from the British government’s perspective, the 1765 law had too many loopholes, gave too much deference to colonial legislatures, and failed to ensure a reliable and immediate means of housing soldiers wherever they were needed.

In 1774, Parliament passed a revised Quartering Act as part of the Coercive Acts, alongside the Boston Port Act, the Massachusetts Government Act, the Administration of Justice Act, and the Quebec Act.

This new version aimed to correct the perceived shortcomings of the earlier legislation and to deliver a clear message of imperial authority.

There were several reasons for the passage of the Quartering Act of 1774.

The first was punishment for the Boston Tea Party. The British government was infuriated by the destruction of valuable East India Company tea and the colonists’ defiance of British trade laws. The Coercive Acts were intended to punish Boston and Massachusetts, but also to deter similar acts of resistance in other colonies.

The second was greater flexibility for the military. The 1774 version of the Quartering Act gave royal governors more direct authority to find lodging for troops, allowing them to bypass colonial assemblies entirely.

It also gave them the power to quarter soldiers in private homes if necessary, even though this clause was not explicitly written into the act, it was widely feared to be implied and left open to interpretation.

The third was centralizing authority. By taking the decision-making power away from the colonial legislatures, the act reaffirmed Parliament’s supremacy and attempted to undermine the growing autonomy of local colonial governments.

The fourth was checking urban tension and rebellion. Cities like Boston were becoming flashpoints of unrest, and the British wanted to ensure the presence of troops in strategic locations, not on the frontier, but in the heart of rebellious cities where they could suppress uprisings and protect British officials.

Like the other coercive acts, the 1774 Quartering Act was seen by the colonists as a gross violation of their rights. It stoked fears of a standing army being used not for defense but to subjugate the population, especially since it could now be housed more easily among them and possibly even within their homes. Many saw this as a form of martial law disguised, and it became a rallying point for Patriot leaders.

Fast forward a decade and a half to the creation of the US Constitution.

When the Constitution was being debated, Anti-Federalists expressed concern about the federal government’s power to maintain standing armies. The Third Amendment was part of James Madison’s response to these concerns, designed to prevent the new federal government from repeating what colonists viewed as British tyranny.

The framers created structural protections against government overreach by ensuring that military power remained subordinate to civilian authority, even in its most basic manifestations, like housing arrangements.

The Third Amendment is often called the “forgotten amendment” because it has generated remarkably little jurisprudence. In fact, the Supreme Court has never decided a case primarily on Third Amendment grounds.

This is due to several factors. Changes in military logistics and housing made quartering in private homes unnecessary, the professionalization of the military with dedicated bases and housing, and the amendment’s effectiveness in preventing the behavior it was designed to stop

Despite its limited direct application, there have been a few notable cases that involved or referenced the Third Amendment.

The most significant Third Amendment case was Engblom v. Carey in 1982, which came from the Second Circuit Court of Appeals.

During a prison guard strike in New York, striking employees were evicted from their staff housing, which was then used to house National Guard troops called in to replace them. The court held that the Third Amendment applied to state governments through the Fourteenth Amendment’s incorporation doctrine, and that the term “owner” could be interpreted broadly to include tenants.

While the guards ultimately lost their case on other grounds, this ruling established that the Third Amendment does protect citizens from having state troops quartered in their homes.

There have been a few other cases that have obliquely referenced the Third Amendment.

Griswold v. Connecticut in 1965. While not primarily a Third Amendment case, Justice Douglas’s majority opinion cited the Third Amendment, among others, as evidence of constitutional “penumbras” that create a zone of privacy.

United States v. Valenzuela in 1951. A federal district court mentioned the Third Amendment in a case involving the seizure of an apartment building. The court noted that while the government could exercise eminent domain, it could not simply occupy private dwellings without proper legal procedure.

Mitchell v. City of Henderson in 2015. In this case, a family claimed Third Amendment violations when police occupied their home while investigating neighbors. The court ruled that police officers are not “soldiers” for Third Amendment purposes, highlighting the amendment’s specific application to military forces.

It should be noted that while there hasn’t been a Supreme Court decision based on the Third Amendment, military troops were billeted in civilian housing during the War of 1812 and the American Civil War.

However, no court cases ever went to the Supreme Court for it to render a judgment.

While the Third Amendment hasn’t been relevant to modern jurisprudence, there was a good reason for its initial inclusion at the time. The Founding Fathers were concerned about a repeat of the indignities suffered while they were a colony.

For the most part they did a good job, but in the case of the Third Amendment, they coverned an eventuality that never really became a concern.

I have a feeling that if we could go back in time and tell James Madison that the Third Amendment wasn’t really necessary, he’d still probably want to put it in, because….better an amendment you never need than needing an amendment you don’t have.