Probably the least referred to section in the Bill of Rights is the Third Amendment. Though it has been cited by the U.S. Supreme Court, there has never been an opinion based on it. This might suggest that it has little to no relevance today. But some scholars argue that in fact the spirit of the amendment is rooted in the right to privacy.
The Third Amendment states the following:
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.
Unlike much of the Bill of Rights, it’s difficult for the average American today to understand why the founders included this protection. However, at the time it was written, it addressed an issue that caused profound apprehension. Prior to the War of Independence, British troops were stationed in Boston; under a law known as the Quartering Act, ordinary citizens were required to house soldiers in their homes.
Enduring a hostile occupying force in your community is detestable enough, but to be forced to provide its troops with food and lodging added insult to injury and was a profound intrusion into the private lives of regular Americans. The issue was so troubling for the colonists that Thomas Jefferson included it among the grievances leveled against the British Crown in the Declaration of Independence — “quartering large bodies of armed troops among us.”
Long before the Bill of Rights was drafted, many state constitutions included prohibitions on standing armies and quartering troops. It is for this reason that History Professor Gordon S. Wood at Brown University writes that “there was nothing new about the Third Amendment; it simply declared what had become conventional American wisdom.”
While there have been numerous SCOTUS opinions on other amendments such as the right to free speech or the right to keep and bear arms, the Third Amendment has never received legal scrutiny. Wood writes that despite this, “the amendment has some modern implications. It suggests the individual’s right of domestic privacy—that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war—rights that emphasize the importance of civilian control over the armed forces.”
In that sense, the Third Amendment bears similarities with the Fourth Amendment, which reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Incidentally, a 1993 paper by Tom W. Bell published in the William & Mary Bill of Rights Journal argues that the Third Amendment’s origins “arguably run deeper than those of any other protection in the Bill of Rights,” calling it a “uniquely British invention, well rooted in Anglo-Saxon law.”
The first known quartering restriction was in London’s charter given by King Henry I in 1131. Bell notes that billeting wasn’t as much of an issue in Anglo-Saxon times because there was no standing army, with military defenses conduct via militia similar to that of Colonial America. It was only with the centralization of political power under William the Conqueror’s reign following the Norman conquest of England that billeting became an issue.
“English law has traditionally held the rights of homeowners in high regard,” Bell writes.
The quartering of troops in private homes was not a minor controversy; Bell credits its with triggering the Glorious Revolution that ousted King James II.
Fears of a standing army and the accompanying involuntary billeting of troops were also used by anti-federalists during debates over the U.S. Constitution. At the Maryland Ratifying Convention, Samuel Chase warned that the new federal government have the authority to house troops in private homes; this complemented other discussions at the time over whether the new federal government would lead to a permanent standing army.
“Although the Anti-Federalists did not ultimately prevail, they gave voice to a widespread concern,” Bell writes. “Eight of the state ratifying conventions sent proposals for a bill of rights to Congress. Five of these proposals contained protections against quartering.”
At the root of the Third Amendment is the principle of separation between private citizens and their property from the government via its armies. It wasn’t just that the soldiers were occupying their space and consuming their resources. Their presence gave them unfettered, unrestricted access to people’s activities, their going abouts, their day-to-day routines. It gave rise to the inability of ordinary people to set boundaries or control what government was privy to.
The whole concept of privacy is to maintain personal boundaries — the ability to keep things to ourselves. Quartering violates this principle. Though it specifically addresses soldiers, the Third Amendment’s essence encompasses more than just the military: government should not have the power to violate people’s hearth and home by placing strangers inside it. In our modern sense, that includes spying and surveillance that tracks Americans everywhere they go, including their homes.
This view is held by other legal minds, including trial attorney Quintus Curtis. In a review of the film Snowden, he remarked that “at least implicit in the Third Amendment is the idea that U..S citizens have a fundamental right to be free of unwanted violations of their privacy and personal spaces. If so, the NSA’s surveillance programs cut to the heart of what the Constitution is supposed to stand for.”
Federal government surveillance of private citizens not only lacks constitutional authority, it betrays the spirit of the Third Amendment. In principle, there is no difference between a group of soldiers sitting in your living room and the federal government listening in on a variety of devices that allow them to track where you go, what you say, and what you do.
The tragedy is that the Third Amendment’s relevance has dwindled since the Bill of Rights was first ratified. The silver lining is that the lack of prior SCOTUS opinions means there’s no prior legal jurisprudence warping its meaning to grant greater federal power. There’s also an opportunity for its meaning to be rediscovered.