What the Third Amendment Tells Us About this Moment
True story: twenty years ago, I wrote my (never published) law review comment about the Third Amendment. The Third Amendment to the United States Constitution, for those who haven’t given it much thought — which includes just about everyone — 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.”
I decided to write about the Third Amendment because I found it fascinating, having taken a course about the Bill of Rights from Akhil Amar. But I may have been especially keen on the topic because I could complete my literature review in an afternoon. Over its almost 230 years of existence, the Third Amendment has been invoked in few court decisions, and has captured the imagination of few legal academics.
To be sure, the protections of the Third Amendment were considered extremely important when the Bill of Rights was enacted. Fresh in the drafters’ memories was the oppression of the people by British soldiers quartered in their houses and towns. But in the years that followed, the Third Amendment has become viewed as an unnecessary appendage — once valuable, but no longer serving any discernible function. One court explained: “As our society has evolved and the character of the country has changed, the Third Amendment prohibiting the quartering of soldiers in private homes has faced into relative inconsequentiality.”
Until now. Last week, in the wake of nationwide protests seeking justice for George Floyd and wide-ranging police reform, President Trump dispatched the National Guard and other federal law enforcement and military to Washington, DC. These federal forces participated in the June 2 assault on peaceful protesters with smoke canisters, pepper balls, and flash-bang devices. On June 4, District of Columbia Mayor Muriel Bowser called on the President to withdraw the troops and other federal law enforcement from the city.
Many have asked whether the Third Amendment can be invoked in this moment, but not all are convinced of its applicability — some contend that the Third Amendment is grounds enough to eject military from the hotels where they were housed, while others believe that the Third Amendment protects private homes, not hotel rooms.
But the debate about whether or not the Third Amendment applies to hotel rooms or only to private homes does not appreciate the spirit of the analogy. Having looked again at my long-ago research paper about the Third Amendment, I am reminded that the Amendment was not only intended to keep military outside the physical boundaries of private homes, but was also a response to the violence inflicted by British troops when they occupied American cities.
Colonists were unquestionably opposed to quartering soldiers in their homes. But colonists also objected to the British occupation because it meant being subjected to violence by soldiers on the street. Journals kept during the military occupation of Boston in 1768–69 suggest that soldiers regularly challenged and assaulted: one man who did not respond to an officer while walking down the street was reportedly “threatened with having his brains immediately blown out unless he stopped” and others were “confined in the guard-house for a considerable time.” One physician reported receiving “a stroke with a pistol, which so wounded him as to endanger his life,” and another man “had a thrust in the breast with a bayonet from a soldier; another person passing the street was struck with a musket.” The Third Amendment was not simply a response to violation of privacy that came from opening one’s home to a British soldier; it was also a response to the fact that people were being assaulted by soldiers while going about their business.
When I wrote my Third Amendment paper twenty years ago, when we did not have the National Guard patrolling the streets of Washington DC and attacking protesters, it was more difficult to imagine how the Third Amendment’s protections might be understood to apply to contemporary life. In my paper, I tried to think broadly about the Third Amendment’s power by invoking Justice Douglas’s assertion in Griswold v. Connecticut that the protections of the Third Amendment, among other Amendments, were not limited to their language but also incorporated the rights’ “penumbras, formed by emanations from those guarantees that help give them life and substance.” I won’t subject you to what I came up. Trust me, it was a stretch.
Unfortunately, there’s no need to stretch anymore. It takes little effort to see the applicability of the Third Amendment to the events of this week in Washington, DC, particularly when one views the Third Amendment not only as a protection against the actual quartering of troops but also as a protection from the violence that comes with military occupation.
