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A Brief History of the Third Amendment

Jol A. Silversmith (May 2000)

"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."

In the colonial era, the practice of billeting British troops in private homes was a widespread. One of the complaints against King George III in the Declaration of Independence was "for quartering large bodies of armed troops among us." The Third Amendment to the Constitution was one of 12 amendments submitted to the states by the First Congress on September 25, 1789, and was one of the ten ratified on December 15, 1791 that are together commonly known as the Bill of Rights.

However, the Third Amendment has proven to be one of the least-litigated sections of the Constitution. The Supreme Court has never directly reviewed the meaning of the amendment. Indeed, only one court has ever confronted the meaning of the amendment, in a case decided nearly 200 years after it was ratified: Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand 572 F. Supp. 44 (S.D.N.Y. 1982), aff'd. per curiam 724 F.2d 28 (2d Cir. 1983).

Engblom grew out of a "statewide strike of correction officers, when they were evicted from their facility-residences ... and members of the National Guard were housed in their residences without their consent." The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. The Second Circuit Court of Appeals, however, reversed on the ground that it could not "say that as a matter of law appellants were not entitled to the protection of the Third Amendment." 677 F.2d at 964. On remand, however, the District Court held that because the officers' Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a qualified immunity, and this decision was upheld by the Second Circuit.

The Third Amendment has been cited in passing in other cases, most notably opinions arguing that there is a constitutional right to privacy, such as the Supreme Court's decision in Griswold v. Connecticut, 381 U.S. 479, 484 (1965). In other cases, courts have cited the Third Amendment as proof that the Constitution carefully distinguishes between times of war and peace. Youngstown Sheet & Tube Co. v. Sawyer., 343 U.S. 579, 644 (1952). Perhaps because of its obscurity, the amendment also has attracted its share of crackpot theories, such as that Army reservists ordered to march in a parade had a Third Amendment right to sit it out instead. Jones v. United States Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972).

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This page was last modified on October 25, 2005. Please email Jol A. Silversmith with comments, corrections, etc.

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