Quartering Soldiers in Times of War

Taking a Closer Look at the Third Amendment

When one goes about trying to understand the Constitution of the United States, it is a good idea to actually read the Constitution of the United States.

I go a step further. I copied it out because that way I knew I was not just skimming the document. I actually was reading every single word. You notice details when you have to read them and then write them down. Which is how I found myself questioning the Third Amendment.

For the most part, when we think about the Third Amendment of the Constitution, we are really focused on the basic premise of it. The part that was instilled by our history at the time of the War for American Independence. 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.”

Great! No forced quartering of soldiers!

That’s probably about as far as anyone gets in a high school history class.

And that is probably why when I got this far in reading the Constitution, I had to stop and read it again. And then again. And then asked: “But what is the manner prescribed by law? Can forced quartering occur? You all wrote yourselves a loophole, but what exactly is it?” And then searching and searching found very little initially to help close that gap. Almost everything I found focused on the textbook simplification of “No forced quartering! Yay!”

So I was pleased when I finally stumbled across a couple of resources that noted that there are very few Supreme Court cases that even mention the Third Amendment. The biggest one is Engblom v. Carey. This case “concerned whether the State of New York violated correction officers’ Third Amendment rights when it used their state-owned residences without their consent to house members of the New York National Guard. The Second Circuit recognized the Third Amendment as ‘designed to assure a fundamental right of privacy.’ The court further held that the Fourteenth Amendment incorporated the Third Amendment and made it enforceable against the states. However, the Second Circuit did not reach the issue of whether the State of New York violated the plaintiffs’ Third Amendment rights because it decided the case on procedural grounds.”¹

Not only does this not answer my question, it was still looking at the idea of the Third Amendment in times of peace - which is not really what I was looking for anyway. While Engblom v. Carey does not help answer my initial question, I was able to dig a little bit further. I finally found a paper, well cited, that had a comprehensive review of the history surrounding the Third Amendment, going all the way back into British history surrounding forced quartering. This paper, The Third Amendment: Forgotten but Not Gone by Tom W. Bell was published in 1993 in the William and Mary Bill of Rights Journal.

What Bell is examining in this paper is the full history of the Third Amendment and its impacts. Included is whether the Third Amendment was violated during the War of 1812 and the Civil War. That forced billeting occurred is clearly apparent. What is less clear is whether or not it was even legal, considering that very few laws seem to have been made. Clearly the Constitution leaves space for those laws to have been written. Bell argues that the loophole was left in place for an executive to use when needed.

Bell points out that the “Committee for War-Claims estimated that $500,000 in claims for rent and damage came from loyal states following the Civil War ($2,500,000 in like claims came from rebel states).”² What this makes clear is that while one might excuse forced quartering in the rebelling states during the Civil War as they seceded from the Union, there was still forced quartering happening within the Union itself.

And that’s where the question of method and that loophole comes back in. Bell’s article is a fascinating read if you have the time available. (It is a little long due to the extensive background worked into the paper.)

So - no. A full answer to my questions does not really seem to exist. And beyond that, the Third Amendment seems to get thrown around, just because. Bell points out in his paper that, “the court in Marquette Cement Mining Co. v. Oglesby Coal Co. cited it as supporting the right to a civil jury trial, presumably intending to refer to the Seventh Amendment”³. More often, when not being mistakenly identified, it’s being used to argue for the right to privacy. But the Third Amendment was one that was very important, privacy related or not, to the American Colonists.

1. Constitution Annotated: Analysis and Interpretation of the U.S. Constitution, (constitution.congress.gov) Accessed: 19 Oct 2023)

2. Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117 (1993), http://scholarship.law.wm.edu/wmborj/vol2/iss1/4

3. Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill Rts. J. 117 (1993), http://scholarship.law.wm.edu/wmborj/vol2/iss1/4