My House, My Rules: A Brief History of the Third Amendment
Brian L. Frye
For better or worse, Donald Trump has directed our collective attention to constitutional questions never before contemplated outside of law school classrooms. From the Natural-born-citizen Clause and the Logan Act to the Emoluments Clause and nationwide injunctions, Trump is a gift to constitutional law professors that keeps on giving. He even inspired the excellent podcast, “What Trump Can Teach Us About Con Law,” hosted by Roman Mars and Elizabeth Joh.
So it was probably inevitable that Trump would eventually implicate the only constitutional provision lampooned by The Onion for its irrelevance. Yes, the Third Amendment is finally in the news, and its stans couldn’t be happier or more confused.
In early June 2020, President Trump sent the National Guard to Washington, D.C., in order to quell protests in the area. Obviously, many people objected that Trump’s decision was excessive, unnecessary, and anti-democratic. Mayor Muriel Bowser asked Trump to withdraw the soldiers from Washington D.C., and ultimately expelled them. Some people observed that Bowser appeared to be invoking the Third Amendment, because Trump was housing the soldiers in empty hotels.
For those who aren’t in the know, the Third Amendment is part of the Bill of Rights, and was ratified on December 15, 1791, only two years after the Constitution. It provides, “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 was a response to the Quartering Act of 1774, which authorized colonial authorities to seize unoccupied buildings and use them to house British soldiers. The Quartering Act was one of the Coercive or Intolerable Acts that led to the American Revolution, and it was explicitly condemned in the Declaration of Independence, which criticized the King, “For quartering large bodies of armed troops among us.”
Of all the constitutional provisions and amendments, the Third Amendment is probably the most successful. No court has ever found a violation of the Third Amendment, and its expectations are so widely accepted that most people have forgotten it even exists. Indeed, the Third Amendment is the Chauncey Gardiner of constitutional law: “As long as the roots are not severed, all is well. And all will be well in the garden.” So long as you like to watch.
In any case, the Third Amendment has lain fallow for two centuries, with precious few exceptions. The only time a federal court has ever applied the Third Amendment was in Engblom v. Carey (2d Cir. 1982), when New York State correction officers went on strike, and objected when the United States housed the National Guard in their barracks. The Second Circuit held that the government’s action was illegal, because the Third Amendment applies to the National Guard, is incorporated under the 14th Amendment, and extends to anyone with a reasonable expectation of privacy in their home. But the district court held that qualified immunity protected the government from liability, because it couldn’t have known that the Third Amendment prohibited its actions. Go figure.
And yet, the Supreme Court has occasionally relied on the Third Amendment to justify its decisions on related questions. In his celebrated opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Jackson observed that the Third Amendment expresses the limits of executive power. And in Griswold v. Connecticut (1965), the Court held that the Third Amendment implies a limit on the government’s ability to invade a person’s home. Essentially, the Court has treated the Third Amendment as a version of the Fourth Amendment, focused on the home. That’s nice, as far as it goes, but probably irrelevant to the original purpose of the Third Amendment.
Unsurprisingly, scholarship on the Third Amendment is … limited. The bulk of it appears in a 2015 symposium published by the Tennessee Law Review. According to Scott Gerber, as of September 2014, only three children’s books, six book chapters, and seventeen law review articles addressed the Third Amendment. As he observes, more is written about the First Amendment on any given day than has ever been written about the Third Amendment.
Fast-forward to 2020, when a subset of the Twitterati have argued that President Trump’s plan to house the National Guard in Washington D.C. hotels would violate the Third Amendment. They may have a point! After all, the Third Amendment was a reaction to the Quartering Act, which authorized the use of unoccupied buildings, and what is a hotel (right now), but an unoccupied building?
But there are problems with this argument. As attorney and legal scholar Michael Smith observes, the government of Washington D.C. probably lacks standing to object to Trump’s plan under the Third Amendment. After all, it doesn’t own the hotels. And the hotels themselves are unlikely to object, because they are just renting rooms to the federal government at the market rate. Indeed, many of those rooms might otherwise remain unoccupied, a fate considerably more distressing to a hotel than any Third Amendment violation.
In any case, Mayor Bowser didn’t invoke the Third Amendment at all. She just said that Washington D.C. wouldn’t pay to house soldiers it didn’t want or need. But if the hotels didn’t want to rent rooms to soldiers, the government probably couldn’t force their hand. And if the government commandeered a vacant hotel, it probably would be a Third Amendment violation, unless it were compelled by the exigencies of war.
Ultimately, the current D.C. kerfuffle is unlikely to result in Third Amendment litigation. The constitutional amendment that don’t get no respect will probably continue to slumber in benign neglect, a curious reminder that the concerns of the founding generation were quite different from our own.
