Legal Features

The Forgotten Freedom

By Andrew P. Morriss
From The Freelance Star

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 prescribed by law."

Today the amendment appears to be a forgotten artifact of the Founding Era, for it forbids a practice that no longer troubles Americans - the quartering of soldiers in private homes.

Despite its current obscurity, reflection on the Third Amendment's history offers some important lessons for today. The British quartering of troops in private homes, imposed in response to unrest in Massachusetts, was part of what the Colonists termed "the Intolerable Acts," and the practice helped motivate the Colonists to seek independence. The new nation's ban on the practice of quartering, through both the Third Amendment and comparable provisions in six of the 13 state constitutions, forced the United States to find an alternative means of providing food and shelter for troops. The lessons of the Third Amendment thus go beyond its specific ban on quartering soldiers.

QUARTERING IN THE COLONIES

In 18th-century England and Wales, troops lived in permanent camps and in public houses and inns. The American colonies, however, lacked both the camps and a network of inns capable of accommodating the troops.

The problem of quartering British soldiers in the American colonies became acute during the 1750s in the campaigns against the French and Indians. Some British units encountered no problems, for the simple reason that they paid Colonists for their troops' food and lodging. Other British officers, however, demanded that Colonists feed and shelter their troops without compensation, producing considerable unrest.

A Pennsylvania assembly delegation, for example, met an attempted requisition of private homes by the governor with "heat, passion, and rudeness," according to a contemporary account. John Dickinson, a prominent Colonial leader, spoke for many in America when he wrote that if Parliament had legal authority to compel Americans to quarter the troops, then it also had the same right "to lay any burthens they please upon us. What is this but taxing us at a certain sum and leaving us only the manner of raising it?"

Quartering became a more serious issue in 1774. In response to the Boston Tea Party, Parliament amended the Quartering Act in June 1774 explicitly to allow the quartering of troops in private homes as a punishment for Bostonians' behavior. This measure seemed to go out of its way to provoke the city's inhabitants and caused the First Continental Congress to denounce the practice in its "Declarations and Resolves" of October 1774. The detested practice also prompted the drafters of the Declaration of Independence to include it among the list of grievances against the King.

QUARTERING IN THE CONSTITUTION

Opposition to quartering was so widespread in the newly independent states that the Third Amendment provoked little controversy during the drafting of the Bill of Rights. What little debate occurred concerned whether to strengthen the ban by removing the provision allowing quartering in wartime entirely, or to require approval of a magistrate before quartering troops.

No debate occurred over the need to prevent peacetime quartering, however. As Judge Thomas Cooley, one of the pre-eminent 19th-century commentators on the Constitution, later wrote, "It is difficult to imagine a more terrible engine of oppression than the power in an executive to fill the house of an obnoxious person with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will; who is sent as an instrument of punishment, and with whom insult and outrage may appear quite in the line of duty."

QUARTERING TODAY

The quartering of troops is no longer an issue in American life, thanks to the unambiguous text of the Third Amendment. Court opinions and legal texts rarely cite the Third, for its straightforward text requires little elaboration or interpretation.

Nonetheless, it is worthwhile to reflect on the consequences of the amendment's solution to the quartering issue, for that solution offers some valuable lessons for other areas of public life.

Because the military pays for its supplies and shelter today, providing domestic quarters for the troops is now a popular activity among municipalities. Indeed, the problem facing the U.S. military today is not one of unwilling hosts, but the fact that it is virtually impossible to close a military base without provoking a political battle to save the base for its economic benefits to the local community. The simple act of paying for quarters turned a liability into an asset.

This lesson applies to a wide range of government activities. The Endangered Species Act, for example, "quarters" species on private land, thereby reducing the scope of permissible land uses where such species live. The presence of an endangered species thus costs a landowner money, much as the presence of British troops in Colonists' homes did in the 1770s.

Not surprisingly, many landowners have begun managing their property to prevent endangered species from finding a suitable habitat on their land. Private conservation groups, from Ducks Unlimited to the Defenders of Wildlife, on the other hand, have had great success with programs providing modest payments to landowners who provide critical habitat.

Just as the practice of paying for military quarters turned an economic liability into a highly desired tenant, so, too, payments for habitat offer a chance to reward property owners' efforts to save endangered species rather than punishing them, through diminished land values, for doing so.

We may not need to call upon courts to enforce the Third Amendment as often as we do other provisions of the Bill of Rights, for the federal government has learned the lesson of the Third in its military-quartering policy. However, governments still impose uncompensated costs upon property owners - suggesting that the more general policy lessons of the Third Amendment have yet to be fully understood.

Morriss is Galen J. Roush professor of business law and regulation at Case Western Reserve University School of Law in Cleveland. He is also the author of the entry on the Third Amendment in the "Heritage Guide to the Constitution" (Regnery 2005).