Malcolm Rivera
The Third Amendment to the US Constitution states that the federal government cannot house soldiers in a person's home without their consent. The amendment was added to the Constitution as part of the Bill of Rights on December 15, 1791, to protect private homeowners from having the military take over their homes to house soldiers. The amendment has been interpreted as a safeguard for an individual's right to domestic privacy and civilian control over the armed forces.
| Characteristics | Values |
|---|---|
| Part of the Constitution | Third Amendment |
| Date added to the Constitution | December 15, 1791 |
| Purpose | To protect private homeowners from having the military take over their homes to house soldiers |
| Other names | Amendment III |
| Basis for Supreme Court decision | No |
| Basis for Court of Appeals decision | Yes |
| Basis for District Court decision | Yes |
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What You'll Learn
The Third Amendment
Before and during the Revolutionary War, the British Parliament passed laws known as the Quartering Acts, which allowed their soldiers to take over the homes of American colonists. The first Quartering Act was enacted in 1765, requiring the Thirteen Colonies to provide food and lodging for British Army troops in public buildings such as alehouses and inns. If these were insufficient, troops could be quartered in uninhabited houses, barns, and other buildings. The colonists were also required to furnish provisions such as firewood, bedding, and beer.
The Quartering Act of 1774, enacted after the Boston Tea Party, authorized British troops to be housed wherever necessary, though no troops were ever placed in inhabited homes. This act was one of the "Intolerable Acts" that pushed the colonies toward revolution, and the quartering of troops was cited as a grievance in the United States Declaration of Independence. During the war, British soldiers continued to take over the homes of colonists, contributing to the colonists' resentment of British authority.
After the war, the Founding Fathers included the Third Amendment in the Constitution to ensure that the new government could not force citizens to house soldiers in their homes. The amendment states, "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 has rarely been litigated, and the Supreme Court has never decided a case based exclusively on it. However, it has been used to demonstrate a citizen's right to privacy and the importance of civilian control over the military.
In modern times, the Third Amendment has been interpreted to mean that the government cannot enter private property without the owner's consent, even for military purposes during peacetime. For example, in Custer, several parties sued the Federal Aviation Administration (FAA) over military aircraft flying above their properties, arguing that the flyovers violated their Third Amendment rights by "appropriating [their] property interests and invading [their] privacy." The court ruled that the FAA's actions were constitutional and that the Third Amendment did not apply to the regulated, lawful use of airspace above private property.
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The right to privacy
The Fourth Amendment, known as the "Right to Privacy" amendment, focuses on unlawful searches and seizures, requiring judicial authorisation and "probable cause" for such actions. This amendment has been invoked in modern times to address mass surveillance programs, with critics arguing that they are too invasive and violate the right to privacy.
The Supreme Court has also played a significant role in interpreting the right to privacy. In Eisenstadt v. Baird (1971), the Court extended the right to purchase contraceptives to unmarried couples, recognising that the right to privacy "inheres in the individual, not the marital couple." The Court further extended this right in Lawrence v. Texas (2003), applying it to same-sex couples engaging in sexual conduct.
Additionally, the Court's decision in Roe v. Wade extended the right to privacy to encompass a woman's right to abortion, deriving this right from the Fourteenth Amendment's concept of personal liberty. However, this decision was recently overturned in Dobbs v. Jackson Women's Health Organization (2022).
While the Third Amendment's relevance today may be limited, it underscores the importance of privacy rights in the Constitution's historical context, particularly regarding military intrusion into civilian homes.
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The relationship between the rights of individuals and the military
The Third Amendment to the US Constitution is the only part of the Constitution that directly addresses the relationship between the rights of individuals and the military. It states that no soldier shall be quartered in any home without the owner's consent, even in times of war. This amendment highlights the importance of civilian control over the military and the right to privacy in one's home, protecting individuals from government intrusion.
Historically, the quartering of troops in private homes was a significant issue for Americans and Englishmen. While the English protested against quartering troops in their homes, they also feared standing armies separated from the civilian population, believing that soldiers should be scattered among the populace. This fear of standing armies and the desire to maintain control over the military carried over into the American colonies, where the quartering of British troops contributed to tensions and the push for revolution.
The Third Amendment has rarely been litigated, but it has been invoked in cases such as Engblom v. Carey (1982), where prison officials on strike were evicted and replaced by National Guard members. The Court of Appeals ruled that tenants were considered owners under the amendment. Another case, Mitchell v. City of Henderson (2015), clarified that the amendment does not apply to intrusions by municipal police officers as they are not soldiers.
Beyond the Third Amendment, the relationship between individual rights and the military is complex. When the U.S. military is a party to cases involving First Amendment rights, the Supreme Court often defers to the government's interest, allowing the military to restrict the rights of service personnel more than civilians. The military's unique nature as a separate society with its own criminal code, the Uniform Code of Military Justice (UCMJ), influences this deference.
The Court has shown a willingness to protect freedom of conscience regarding conscientious objectors, eventually recognizing any deeply held belief as a valid basis. However, once an individual joins the military, their rights to free speech and religious expression are more restricted. The Court considers the military's need for a cohesive, homogeneous community, and its decisions reflect a belief that military necessity" often outweighs individual rights.
Public opinion also plays a role in the relationship between individual rights and military intervention. Some studies suggest that support for military sanctions to protect individual rights is lower than for economic sanctions, particularly among those with post-materialist values and higher education levels. This "suppression effect" indicates a preference for non-military means to uphold human rights.
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The role of Congress in authorizing the quartering of soldiers
The Third Amendment of the United States Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791, 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 is a response to the Quartering Acts enacted by the British government in 1765 and 1774, which required the Thirteen Colonies to provide food and lodging for British Army troops, including in private homes if necessary.
Congress's role in the quartering of soldiers has been further defined through court cases. In Engblom v. Carey (1982), the United States Court of Appeals for the Second Circuit ruled that the term "owner" in the Third Amendment includes tenants. This expanded the amendment's protection to renters, ensuring their homes could not be seized for military housing without their consent.
Additionally, Congress has considered the distinction between peacetime and wartime and the authority of the executive branch versus the legislature in authorizing quartering. While the amendment prohibits quartering soldiers in private homes during peacetime without the owner's consent, it allows for quartering in wartime but only in a manner prescribed by law. This distinction gives Congress the power to regulate and authorize the quartering of soldiers during times of war.
The Third Amendment also addresses the concerns of the colonists and state constitutions drafted in 1776-1777 about the dangers of standing armies in peacetime and the quartering of soldiers without the consent of the legislature. By including this amendment in the Constitution, Congress affirmed the rights of individuals and the power of legislative bodies in deciding how and when to quarter soldiers.
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The application of the Third Amendment to modern issues such as military aircraft flyovers
The Third Amendment to the US Constitution 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.
The Third Amendment was written in the eighteenth century to address the issue of quartering troops in private homes, which was considered a significant concern by Americans and Englishmen at the time. The amendment clarifies that during peacetime, the government cannot force civilians to house soldiers without their consent, and during wartime, Congress has the authority to make laws regarding the quartering of soldiers in private residences.
While the Third Amendment is one of the least controversial parts of the Constitution and is rarely litigated, it has been invoked in modern times in relation to issues such as military aircraft flyovers. In the case of Custer v. Federal Aviation Administration (FAA), several parties sued the FAA over military aircraft flying above their properties. The plaintiffs argued that the flyovers violated their Third Amendment rights by "appropriating [their] property interests and invading [their] privacy for military purposes during peacetime without their consent." The 10th Circuit Court of Appeals ruled against the plaintiffs, stating that their property rights did not extend to "navigable space over their lands." The court interpreted the Third Amendment as not intending to prevent the military from using airspace above private property without the owner's consent, as long as it was regulated and lawful.
The Third Amendment has also been discussed in relation to other modern issues, such as the heavy presence of the National Guard in states and the nation's capital during civil unrest. While legal experts are skeptical that the amendment will become a significant issue in these cases, it highlights the ongoing relevance of the Third Amendment in protecting individuals' rights to privacy and control over their homes, even in the context of modern military operations and responses to domestic incidents.
In summary, while the Third Amendment was written in a different historical context, its principles of protecting civilian control over their homes and privacy rights remain applicable to modern issues. The interpretation and application of the amendment continue to evolve as new situations arise, demonstrating its enduring significance in the relationship between individuals and the military.
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Frequently asked questions
The Third Amendment is a part of the United States Constitution that protects private homeowners from having the military take over their homes to house soldiers.
The Third Amendment 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".
The Third Amendment was introduced to the House of Representatives by James Madison of Virginia and was ratified in 1791 as part of the Bill of Rights. The amendment was included in the Constitution to avoid future problems with quartering soldiers.
The Third Amendment is rarely litigated and has never been the primary basis of a Supreme Court decision. However, it suggests an individual's right to domestic privacy and emphasizes civilian control over the armed forces.
