The Third Amendment

- [Kim] Hi, this is Kim from Khan Academy and today, I'm learning more about the Third Amendment to the U.S. Constitution, which states that 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. This amendment clearly draws its inspiration from the Quartering Acts that caused a great deal of tension between the American colonies and Great Britain leading up to the American Revolution. But does it have any relevance to our lives today? To learn more, I sought out the help of two experts. Jay Wexler is a Professor of Law at Boston University School of Law specializing in Constitutional Law and the Supreme Court. Glenn Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law. So Professor Reynolds, why did the framers feel it was necessary to put this amendment in the Bill of Rights? - [Glenn] Well, we don't think of quartering of troops in people's homes as a very big issue these days, and of course, some people would say that's because the Third Amendment's worked perfectly. If only the rest of the Bill of Rights worked so well. But it was a big issue for the framers because it had happened a lot. To the framers, the English civil wars of the 17th century were recent history, and their attitudes were very much shaped by that. And the Stuart kings, in particular, used quartering of troops as a way to punish towns and areas that they didn't like. The soldiers back then were basically jail sweepings. They had a tendency to steal and to rape and to get into fights even with the people they were quartered with. So to have troops quartered upon a town was a way of sort of mass punishment, and that made the English rather unhappy. And after the Glorious Revolution, they banned the practice in England, but they did not ban it in the colony. - [Jay] The king had quartered troops in the private homes in the colonies in what became the United States for a long time before the Revolution, since at least 1670 and, as it's easy to imagine, this caused a lot of tension between the homeowners in the colonies and the British troops. And then it got even worse as we found ourselves in the French and Indian War in the 1750s and 1760s. 'Cause nobody wants the government to put troops in their house. The house is the place where people live their most private lives, and to have the government come in and then say, here, the soldiers are gonna live here with you now, is something that, understandably, the colonists were very worried about and didn't like very much. So, things got worse in the 1760s, when England passed the first Quartering Act, which basically required that colonies had to provide barracks for the king's troops and if there weren't barracks, then the soldiers were authorized to live in inns and alehouses and houses, this is right from the Act itself, selling rum and brandy and strong water. And then, if there weren't enough of those around, they could live in private buildings, uninhabited houses and barns and things like this and then that requirement resulted, in part, in the Stamp Act of 1765 which led then to the Tea Party, which everybody knows about, and the Tea Party really made the king angry. After that, the king passed, or the parliament passed the second Quartering Act of 1774 which required colonists to allow the king's troops to live in their homes which was, of course, something that the colonists absolutely couldn't stand. So, when we got our independence, it was one of the most important goals of the framers to make sure that this kind of thing could not happen. - [Kim] So, what was so problematic about the possibility of having a soldier quartered in your home, or multiple soldiers quartered in your home? - [Jay] Well, some of us don't particularly like having house guests in general, (chuckling) but they're not house guests. I mean, the problem is, troops back then were not like, we think of soldiers today in the American army, it's hard to get in the army. You know, people try to get in the army and they're told, go away, your grades aren't good enough and you're not smart enough. And if you have a criminal record, they don't want you. It wasn't like that back then. Warfare was bloody and awful. The troops stood in masses a hundred yards from each other and blasted away with these Brown Bess muskets. Actually the most common injury then was when pieces of the soldier next to you were driven into you, jawbone and stuff like that. So, it was pretty nasty and the discipline that it took to make people do that was pretty harsh and it wasn't very appealing to the better sort, so, literally, a lot of these soldiers were people who would sent there straight from jail. So, they were not very nice people to have living in your house and they didn't have a very good attitude when they did. - [Jay] I think they were widely viewed as being cruel, as being unfriendly, maybe even drunk a lot, but it was certainly not the case that they were making their own beds and cleaning up after their dinner and such like that. So, they were not guests. So, they were people who were living in the houses, taking liberties any way they wanted and making a basically a nuisance of themselves, for sure. So, I mean, imagine if some soldier you didn't know and you didn't invite into your house was all of a sudden staying in your living room, and then multiply that by however many soldiers it might be, 10, who knows, living in your living room while you're trying to carry out the daily tasks of your life and talking with your children and making plans about dinner and can you imagine how offensive that would be and how problematic that would be to have the government's troops hanging out in your living room. It would be pretty awful, so it's no surprise that the framers, I think, objected to this and put this amendment into the Constitution. - [Kim] So, do you think that the Quartering Act of 1774, do you think that was the straw that broke the camel's back in the American Revolution? Was it that living with soldiers was so noxious that it propelled the colonists over the edge into the Revolution? - [Jay] Well, there were a lot of straws that broke that camel's back so it's hard to say which one, but I think one of the things that the colonists hated about it was that they were being subjected to a rule that didn't apply in England and one of things they revolted for, remember, was they thought they'd been deprived of what they called the rights of Englishmen and this was just another example of the crown feeling free to do things in the colonies that he wouldn't do at home and that sent a signal to the colonists that you're not as important, you're not full blown citizens, we don't care about you as much and you don't have the same rights. And I think that was what was intolerable about it. - [Kim] So this seems like an amendment that has this very specific historical background, but how does this kind of play forward into the future? Was there any danger that there might be later quartering of soldiers after the framing of the Constitution? - [Jay] Well, there was always the risk, there was always the risk that even in the independent United States that the government might, at some point, require homeowners to put up soldiers and, in fact, there is some evidence that during the Civil War this happened. I think the evidence is a little foggy, but there is certainly a suggesting in the literature that the Union government required homeowners to put up Union troops. And so, it could have been a problem. It's not something that has, in fact, turned into a huge issue over time, which might say something about how successful the Third Amendment has been in our history. But, it was always a risk and I think it was never far from the minds of the framers, this possibility that the government might decide to put its soldiers into people's private homes. - [Kim] I think, at the time of the Revolution and when the framers were putting together the Constitution, they had a real fear of standing armies, right? They didn't want a standing army in the United States and, in fact, there wasn't one in the United States at all, a professional army until after the Civil War, I believe. And now we see a standing army, a very large standing army of the United States as being pretty normal. How do you think the Third Amendment shows how our ideas of standing armies have changed over time? - [Glenn] You know, one historian said that our framers had an almost panic fear of standing armies and that was based, again, on the history of the English civil wars in the 17th century where standing armies, the tradition was, the king would disarm people he didn't like and then use the army against them and that was seen as very bad, the standing armies were seen as somebody whose loyalty, who paid them, not to the country. I think our army has had a different trajectory. I mean, really we didn't have a large standing army in the United States on a regular basis until after World War II. So, I think we're just less afraid of it because our army has been more professional, maybe because we feel like the army is more loyal to citizens than it is to who pays it. Or maybe because we've just lost, perhaps, a vital edge of paranoia that the framers had. - [Kim] Has there ever been a Supreme Court case that ruled based on the Third Amendment? - [Glenn] There's a single federal court of appeals case called Engblomb against Carey where the federal court of appeals applied the Third Amendment in a New York prison riot case where guards were pushed out of their barracks and National Guardsmen were put in. But the Supreme Court's never done it. But the Supreme Court has relied on the Third Amendment. In fact, one of the most famous cases of the second half of the 20th century from the Warren Court was Griswold against Connecticut. That was actually a case striking down laws against birth control. - [Jay] Which is one of the forerunners to Roe vs Wade and in that case, the Supreme Court was trying to figure out if the Constitution encompassed a right to privacy and Justice Douglass wrote this opinion which said that there were kind of penumbras or emanations from a variety of amendments in the Bill of Rights, the Fourth Amendment, the First Amendment, and importantly, the Third Amendment, that suggested that the Constitution does protect privacy rights to some degree. That was kind of the high point for the Third Amendment in Supreme Court history and even in the cases that followed the Griswold decision, which found, for example, the right to an abortion, et cetera, the Court did not rely on that Third Amendment penumbra theory. So, it was one case the Supreme Court cited the Third Amendment as being the source of a sort of enigmatic privacy right. Other than that, the Supreme Court has really not touched the Third Amendment ever. - [Kim] So, there's kind of a suggestion of the right to privacy that goes along with the Third Amendment and also, perhaps, the Fourth Amendment. Do you think that's the way that the Third Amendment is, perhaps, most relevant to us now? - [Glenn] Well, it could be. I mean, there's been some thought, there've been some law review articles and other speculation on this that, for example, when the government installs spyware on your computer at home, that's the equivalent of quartering troops in your house because somebody is inside your house spying on you and breaking the privacy, sort of like having to have a soldier at home. No court's held that, as far as I know, but it's not crazy and there have been a few other cases more on point where people claim that when police SWAT teams took over their homes to look down on the neighbors and such, that that was troop quartering, but courts so far have said that that's not the same thing since they're not actually sleeping there. - [Jay] One possibility is to say, hey, the Third Amendment really plays no role. The courts don't talk about it, nobody really knows much about what it says. And so it's really not important. On the other hand, you could argue, and I'd suggest that this is probably a plausible argument, that, in fact, the Third Amendment has done a lot. The fact that you don't see cases about quartering of troops may very well indicate how well the Third Amendment is serving. So, the Third Amendment just is quiet but that's because it's doing its job so well. And that nobody comes and tries to quarter troops in there, in anybody's houses and if they did, they would immediately lose. So, you could argue from that perspective that the Third Amendment is one of the most powerful and well working amendments that we have in the Constitution. One thing that's interesting about the Constitutional history is that sometimes we see parts of the Constitution that have been dormant for a really long time all of a sudden pop up into consciousness either because the courts have started reading them differently or because the facts of the world change and so all of a sudden the amendment or other Constitutional provision seems relevant. And that could potentially happen with the Third Amendment and what I would site here are two developments in the world. One is that we see these days the police becoming more militarized and so it looks kind of like the police are soldiers in a way when they come all armed and with their, and armored vehicles and such. And the second phenomenon is kind of the increased surveillance that we're seeing from the government into private phone conversations, private computer files, and things like that, and so it's possible that we, a court at some point, might think that the government is violating if not the letter, but then the spirit of the Third Amendment by basically engaging in the 21st century version of quartering by monitoring people's communications within the home in a kind of militaristic way. - [Kim] So, we've learned that the Third Amendment prevents the government from quartering soldiers in the homes of American citizens and that, in fact, it does such a good the Supreme Court has only made one decision using the Third Amendment as its primary basis. But, the Third Amendment's implied guarantee of privacy in the home may come to be more important as we debate the limits of government surveillance of our computers. To learn more about the Third Amendment, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on U.S. government and politics.