The Third Amendment: More Profound than Previously Thought

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As we kick off the new year, we want to put more focus on the Constitution itself. This profound document can teach us much about our unalienable rights, especially if we learn how to read between the lines.

The NCCS recently published a new book titled Behind the Bill of Rights: Timeless Principles that Make it Tick.  It presents the fundamental natural rights behind each of the first ten amendments to the Constitution. In it, we learn that though the Constitution only specifically mentions a few unalienable rights by name, it lists dozens of rights in the form of protecting them. From the Ninth Amendment chapter in the book:

"In a letter to George Washington, James Madison expressed the view that the protection of rights was the same as the limitation of powers:

" 'If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.' (5 December 1789 )

"In essence, Madison was stating that limited power and the protection of rights are different sides of the same coin. The purpose of the Constitution is to limit power in order to protect rights. Conversely, the protection of rights comes by limiting power. Simply put:

"LIMITED POWER = PROTECTED RIGHTS and PROTECTING RIGHTS = LIMITING POWER.

"Using Madison’s view, dozens of rights leap from the text of the Constitution. "

Let's go to the Third Amendment chapter in Behind the Bill of Rights to discover what profound right is secured between the lines of the quartering of troops.

“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.”

The Third Amendment is one of the least controversial amendments in the Bill of Rights. The Founders included this amendment because of a practice of European kings quartering troops in the homes of the people to save money or to quell a rebellion. Since it has received so little attention in the courts and the media, many scholars barely give it a passing glance, if they mention it at all. It is, however, important because it helps reinforce some of our natural unalienable rights. In reading the Third Amendment, many miss that it is not just about quartering soldiers; it is, more importantly, about consent.

The Third Amendment guarantees the right of the people from being compelled to shelter soldiers in their homes without the homeowners’ consent, except in time of war as prescribed by law. This was a grievous practice in the colonies before they declared their independence, and the Founders wanted to ensure that their newly formed government would not follow the same pattern.

Most of the Framers believed “that a well-regulated militia,” composed of the body of the people, trained to arms, is the “proper, natural, and safe defense of a free State,”[1] and that no standing armies in time of peace were needed. However, they recognized, as George Washington did, that though “a large standing Army in time of Peace hath ever been considered dangerous to the liberties of a Country, yet a few Troops, under certain circumstances, are not only safe, but indispensably necessary.”[2]

Eventually the Founders came to a consensus that some standing armies in the more vulnerable parts of the country were necessary to discourage their enemies from coming upon them. Thus, they gave Congress the power to “raise and support Armies,” but stipulated that money appropriated for this purpose shall not “be for a longer Term than two Years.”[3] The states did not believe that a two-year term was sufficient to guard against the danger of quartering troops and thus recommended the Third Amendment.

History of Quartering Troops

Standing armies were commonplace in England, notwithstanding the intense resistance against them. This and other practices became so oppressive during the reign of Charles I that in 1628 he was compelled to sign the Petition of Right, which listed the grievances of the people. One of these grievances complained that the king was sending “great companies of soldiers and mariners. . . into divers counties, and the inhabitants, against their wills, had been compelled to take them into their houses and allow them there to sojourn against the laws and customs of this realm.”[4]

When Louis XIV of France threatened to quarter troops in the homes of the Protestant Huguenots unless they returned to the state church, they fled in terror to various parts of the world rather than risk such an affliction.

Parliament attempted to enforce this same practice among the colonies by issuing various legislation known as the Coercive or Intolerable Acts. These acts were designed to punish the colonists and submit them to the will of the crown.

The first of these four acts was the Boston Port Act which closed the port of Boston until the city paid for the tea that was dumped into the harbor during what came to be known as the Boston Tea Party.

Next was the Massachusetts Government Act, which suspended the Massachusetts charter of 1691 and drastically limited its colonial legislature.

Parliament then revoked the colonists’ ability to hold trials for British officials in the Administration of Justice Act.

Lastly, in an attempt to enforce the foregoing acts and to save money, Parliament passed the Quartering Act, which gave royal governors authority to house British soldiers in the homes of the colonists without the consent of the colonial legislature. King George not only ordered the colonists to quarter the troops in their homes, but attempted to force them to provide “fire, candles, vinegar and salt, bedding, utensils for dressing their victuals. . . without paying anything for the same.”[5] It placed each home under martial law and the soldiers who took over the homes were notorious for assaulting the women, destroying the furniture, and abusing the owners.

When the colonies declared their independence from Britain, they included in their declaration similar grievances as were contained in the English Petition of Right. Among these grievances, they declared that the king had quartered “large bodies of armed troops among” them and that he had kept “in times of peace standing armies without the consent of [their] Legislature.”[6]

As the states drafted their Constitutions, some of them, including Delaware, added similar language, declaring “that no soldiers ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct.”[7]

Notice the similar language that is now the Third Amendment. The Framers had good reason to include such a prohibition in the Bill of Rights, and we should be grateful that this amendment has not been put to the test.

The Right of Individual Consent

In the Third Amendment we are guaranteed that “No Soldier shall, in time of peace be quartered in [our] house without [our] consent.” Because we have the right to consent, we can protect our unalienable natural rights. We can choose how to use and dispose of the property we obtain. We can also choose who comes into our house and when. These are some of our natural rights that no one, including government, should violate.

The Declaration of Independence identifies “certain unalienable Rights [among which] are Life, Liberty and the pursuit of Happiness.” If we did not have a right to give our consent for a soldier to live in our house, we would have neither liberty nor the right to property. In other words, what we choose to do with our life and property is what allows us to pursue those things in life that make us happy. If someone takes away our right to consent by forcing us to do something against our will, this is rightly termed tyranny and will impede our “pursuit of happiness.” This right of consent is essential in a free society and must be considered a natural unalienable right belonging to all people.

This right of consent can intersect with another individual’s rights. It is difficult to find the line between protecting one individual’s rights while protecting another’s rights at the same time. Consider Jefferson’s definition of liberty presented earlier:

"Liberty. . . is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others."[8]

Rightful liberty only goes as far as another person’s liberty. The moment our liberty begins to encroach upon another’s, it ends. He further clarifies that a civil law violates liberty if it allows one person to encroach upon another person’s liberty. For example, seat belt laws can be argued to be an infringement on an individual’s right to consent because not wearing a seatbelt does not infringe upon the rights of another. Mandatory automobile insurance, on the other hand, can be required because an uninsured driver could violate the rights of another in an accident.

The Right of Collective Consent

In addition to our individual right of consent, this amendment illustrates how the Founders chose to protect this right in a collective sense. It states that soldiers could be quartered in our home during times of war, but it would need to be done “in a manner to be prescribed by law.” This qualifier, “to be prescribed by law,” is critical as it illustrates how the Framers chose to protect our right to consent in our federal system. We can have confidence knowing that if it were necessary, troops would be quartered in our homes “in a manner to be prescribed by law” and not by the arbitrary whims of a dictator. We do not lose our right to consent in time of war. Rather, we pre-consent through laws passed before the war. It is wise, especially regarding emergencies, that laws and procedures are created long before the emergency occurs—a time when calmer minds can craft sober legislation. Samuel Adams gave wise recommendation to that effect. In addition, he said it would be unwise to abandon existing law for the whims of individuals:

"It is always safe to ADHERE TO THE LAW, and to keep every man of every denomination and character WITHIN ITS BOUNDS—Not to do this would be in the highest degree IMPRUDENT: Whenever it becomes a question in prudence, whether we shall make use of legal and constitutional methods to prevent the incroachments of ANY KIND OF POWER, what will it be but to depart from the straight line, to give up the LAW and the CONSTITUTION, which is fixed and stable, and is the collected and long digested sentiment OF THE WHOLE, and to substitute in its room the opinion of individuals, than which nothing can be more uncertain: The sentiments of men in such a case would in all likelihood be as various as their sentiments in religion or anything else; and as there would then be no settled rule for the publick to advert to, the safety of the people would probably be at an end."[9]

While it is unlikely that we would be asked to quarter soldiers, this phrase adds extra emphasis to the wisdom of the Founders in placing “all [law-making] powers. . . in a Congress of the United States. . .”[10] In other words, since we have collectively consented to give Congress the authority to declare war, we have also consented that in a war emergency, troops could be quartered in our homes if needed. We consented to this because we know that laws affecting our life, liberty and property cannot be passed without first being thoroughly discussed by representatives of our choosing. According to the Constitution, not even the president of the United States can sign a law without it first being approved by Congress. Unfortunately, there are now more laws from the national government that don’t go through Congress than do.[11] This should be alarming to every American because it means that we have not consented to those laws. As citizens, we should be vigilant in protecting this process because it is the way we preserve our right to consent in society.

By virtue of the society we live in, we collectively give our consent to certain things. In a community, we consent to city or county ordinances, so long as we are fairly represented. On a state and national level, we consent to laws passed by our legislatures because we recognize that we can have a voice in the laws that are made. However, we should object when laws are passed that violate our natural unalienable rights such as the right to life, liberty, and property. We also may object if a law is written contrary to the authority we consented to give our elected representatives. Hence, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”[12] is a mechanism that allows us to defend our individual natural right of consent. If we value our right of consent, we must engage, not only on election day, but every available opportunity.

Conclusion

The right to consent is fundamental to the relationship between individual and collective citizens and their government. After all, government derives its “just power from the consent of the governed.” Without consent, the government cannot exist. The Third Amendment was created based on the natural right to consent to our form of government.

The amendment may seem unnecessary today because we have little trouble with the quartering of troops. But perhaps the reason why we have little trouble is because the Third Amendment exists. It created a parchment barrier that has protected citizens from the scourge of quartering troops. It also provides a preface to the Fourth Amendment, which is a more detailed protection of our property through the power of consent. The Third Amendment protects our homes in general, and the Fourth protects every word on every paper, down to the paperclip that binds them together.

Read more from Behind the Bill of Rights: Timeless Principles that Make it Tick to learn more about your fundamental rights protected in the first ten amendments to the Constitution.

[1] The Virginia Declaration of Rights, 1776

[2] George Washington, “Sentiments on a Peace Establishment,” 1 May 1783

[3] United States Constitution, Article 1, Section 8, Clause 12, 1787

[4] Petition of Right, 1628

[5] Quartering Act, 24 March 1765

[6] Declaration of Independence, 4 July 1776

[7] Delaware Declaration of Rights, 1776

[8] Letter from Thomas Jefferson to Isaac H. Tiffany, 4 April 1819

[9] Samuel Adams, Boston Gazette, 17 Oct. 1768, emphasis from original quote.

[10] United States Constitution, Article 1, Section 1, Clause 1, 1787

[11] The president and executive department heads file regulations in the Federal Registry. If Congress does not object within a certain amount of time, it becomes law. Although this process is not provided as a legitimate method of law-making in the Constitution, the courts have upheld the practice.

[12] United States Constitution, Amendment 1, 1789