The Historical Context of the Third Amendment

The Third 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 never been considered controversial and, in fact, has never been litigated in front of the Supreme Court. ¹ The clarity of this amendment is a good reason why it has not been litigated, as there is nothing in this amendment that is easily misunderstood. The clear and uncontroversial nature of this amendment means that few Americans today have ever considered the quartering of soldiers to be much of a threat to them or their liberty. The Founding Fathers, on the other hand, had first-​hand experience, gleaned under of the Quartering Acts of 1765 and 1774, and the story of how those two quartering acts came to be lends much insight into the reasoning behind a highly significant right that often goes unnoticed.

The two quartering acts have their foundations directly in the French and Indian War, although it is safe to say that the French had very little idea about what kind of event would be unleashed on North America when they chose to start building forts in the Ohio River region that was claimed by the English in 1754. Most immediately, they touched off a war that would rage on two continents between the French and the English over who would ultimately have control over the greatest empire. After nine years of fighting, the English came out the winners, taking control of millions of acres of French territory in the new world. Surely there must have been a lot of optimism among both the British and the inhabitants of their American colonies in 1763 with their victory.

Within months of the signing of the Treaty of Paris, problems began to arise in America which would severely alter British management of the American colonies. In the summer of 1763, a band of Ottowa under their chief Pontiac began to attack forts and settlements in modern day Michigan. By the time the British defeated Pontiac, he had taken several forts and wreaked much havoc on settlers. Pontiac also exemplified a problem the British government would have to deal with. Specifically, all the new territory they now governed also included many new groups of native peoples, many of whom were less than welcoming toward the British and Americans. The British realized that they would have to do more to secure the territory. ²

The ministry in London had created several regiments for the war with France, and they decided to send these regiments to America to secure the frontier. The ministry realized that something would need to be done to provide both permanent housing for these soldiers and to arrange for them to move from place to place as needed. To this end, they passed the Quartering Act of 1765.

In this act, Parliament recognized that a standing army was necessary for protecting the King’s dominions in America and expressed concern that there was not enough housing for troops. To provide for that housing the act authorized colonial authorities to take certain actions. First, the colonies were to provide barracks for the soldiers and officers that were to be stationed there. In many cases these barracks would be used primarily to house troops as they moved to more permanent stations along the frontier. Second, when the provided barracks were insufficient for all the soldiers, they would be housed in public houses such as inns and alehouses. Third, if there was still insufficient housing, colonial authorities could hire, or rent, uninhabited houses, outbuildings, and barns, that were owned privately, as temporary housing for the soldiers. As a part of all this, the act required that these soldiers be provided with bedding, candles, utensils, and small amounts of beer or cider.

The Quartering Act also designated that the colonies would collect money to pay for the barracks themselves. The money collected for this could be also be used to pay property owners for the use of their land and buildings and for the provisions that went along with it. ³

As far as the acts of Parliament in 1765 go, the Quartering Act was hardly the most burdensome or least well received. That year the ministry passed several taxes that were designed to raise money from the colonies to help Britain pay for its massive war debt. These taxes were very unpopular and, as in the case of the Stamp Act, resulted in increasing agitation in the colonies against Parliamentary taxation. It was one thing for Parliament to require that the colonists provide housing for the soldiers that were there to help protect them from the natives, although there was much confidence in the colonies that they could take care of themselves; Parliamentary taxation was another thing entirely.

Over the next decade that agitation would increase exponentially. In England the King would cycle through multiple first ministers as they passed taxes and repealed them, each time failing to find the magic formula that would satisfy the colonists. The colonists, on the other hand, were becoming increasingly unwilling to accept Parliamentary taxation, or even any legislation from Parliament. By 1774 attitudes in the colonies had changed dramatically and the government in London was more determined than ever to enforce its authority in the colonies.

Of all the taxes and acts passed and repealed by Parliament from 1764 through 1774, the Tea Act of 1773 may have been the one to push things past the tipping point. The Tea Act effectively created a monopoly for the East India Company in the colonial market. When the first shipments of tea under the new law arrived in the colonies, there was trouble. Many ships were sent back to England without being allowed to unload their cargo. In Boston, however, the colonial governor would not allow the ships to turn back. A group of colonists boarded the ship in the harbor and dumped the tea overboard. Parliament’s response was a series of acts known in America as the Intolerable or Coercive Acts, which were designed to punish Boston and scare the rest of the colonies into submission. One of these acts was a new quartering act, one that built on the Quartering Act of 1765. ⁴

The Quartering Act of 1774 expressed concern about troops that were only housed in areas where they had barracks. Specifically, the concern was that these troops might not be in locations where their presence was required. This act authorized colonial authorities to billet soldiers in public houses or unoccupied buildings on private property in any location where the authorities felt the soldiers’ presence was necessary. ⁵

Years later, a convention met in Philadelphia to fix the problems with the Articles of Confederation. To those men the Quartering Acts were not history-​-​they were memories, and when they debated Congressional power to create a standing army, it was not a matter they undertook lightly. Elbridge Gerry, a delegate to the convention from Massachusetts, who voted against the new constitution, expressed his concern over standing armies. He argued that he could accept that three-​fifths of the slave population in the south counted for representation, that the vice president served as president of the senate, or that there was power to grant monopolies, among others powers of which he did not approve, if the rights of the people were protected. Among the threats to those rights he listed the power to raise an army. ⁶

Another delegate, George Mason, also cited his concern about standing armies during the debates. Mason was concerned that the Constitution gave Congress too much latitude for expanding its powers, and that the state legislature, and the people themselves, had nothing to prevent them from losing those powers and rights reserved to them by the Constitution. Mason was concerned that there were no provisions limiting the power to keep a standing army during times of peace. ⁷

These men were not speaking idly. The delegates remembered the Coercive Acts as an example of how arbitrary government could victimize the people if left unrestrained. ⁸ This arbitrary government was enforced, as far as these men were concerned, by “The MONSTER of a standing army,” which sprang from “a PLAN…systematically laid, and pursued by the British ministry, near twelve years, for enslaving America.” ⁹ It was easy to see things this way as the English newspapers of that time were filled with comments urging the ministry to send more troops to America to teach the colonists their place. ¹⁰

Even Thomas Jefferson had written in his Summary View of the Rights of British North America “In order to force the arbitrary measures before complained of, his majesty has from time to time sent among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws.” ¹¹ With these pre-​war arguments in mind, and remembering the tragedy of the Boston Massacre, which occurred only three years before the Boston Tea Party, it is easy to understand why many of the founding fathers feared that a standing army could be used to terrify a populace into complying with the will of a tyrant. ¹²

After the convention ratified the new constitution, the minority published their dissent in the Pennsylvania Packet on 18 December 1787, explaining their objections to the document. This minority expressed a major concern that first, there was no bill of rights, guaranteeing such things as freedom of press and speech and religious expression, and, equally important, protecting the people from a standing army. They suggested that this army could be used to enforce the law, and could be used to enforce either good or bad laws, or to enforce the collection of oppressive taxes or to suppress rights. As the debate over ratification moved to the states, New York in particular, the anti-​Federalists would continue to build on this message.

In a series of essays printed in the New York Journal between October 1787 to April 1788, “Brutus,” who was probably New York judge Robert Yates, explained many of the objections to the new constitution. In the essay of 24 Jan, 1788, Brutus worried that a ruler might use a standing army to support a usurpation of power, or that the army itself could subvert the form of government and install a new one. He suggested that Julius Caesar used a standing army to change the Roman republic (I set aside the question of whether or not that republic should be upheld as an example of representative democracy). Oliver Cromwell, according to Brutus, used an army to defeat Charles I and vindicate the liberties of the people, but then used that same army to take those same liberties away from the people.

“A Federal Farmer,” thought to be Melancton Smith, or possibly Richard Henry Lee, wrote two letters which appeared in the Poughkeepsie Country Journal on 8-9 Oct, 1878, in which he expressed the concern that the federal government was so far removed from the citizens of the various states that its power might seem diminished or illusory. He worried that the national government would be concerned that the citizens would forget about it, “unless a multitude of officers and military force be continually kept in view, and employed to enforce the execution of the laws, and to make government feared and respected.” ¹³

For their part the Federalists, or supporters of the new constitution, acknowledged that the concern about standing armies was well justified. In Federalist No. 10, Alexander Hamilton pointed out that this apprehension comes from examples in English history, such as when James II increased his army from five thousand to thirty thousand until Parliament forced him off the throne in 1688. In placing William of Orange on the throne in that revolution, Parliament required that he agree that standing armies without the consent of Parliament would be illegal. The Constitution anticipates this same concern by obligating Congress to review and approve of all appropriations for the army so it could not subvert Congress. While acknowledging this concern, the Federalists argued that the potential of unforeseen threats made it necessary to allow for the provisioning of land and naval forces under the control of Congress. ¹⁴

In 1789, James Madison introduced a series of amendments to the Constitution. He had once been opposed to the idea of a Bill of Rights, but these amendments were his recognition that it was, in fact, necessary. Madison was concerned that Congress could take a broad interpretation of its powers and infringe the rights of the people. ¹⁵ The Constitution already contained limits on the power of the standing army by making it dependent on recurring grants of funding from the legislative branch, and now the Third Amendment placed limits on the interpretation of that power by Congress itself.

Understanding the Quartering Acts in the context of the events of the decade in which they came about helps us to understand the Third Amendment better. The threat to liberty that the British regulars posed as their presence was imposed on the colonists came primarily from the attempt to use them to scare the colonists into compliance. The Third Amendment, then, is about more than the simple quartering of soldiers. It is a protection of private property from the intrusion of government. It is a guarantee, to the American people, that their government would not take the army that has been formed to protect the nation from an external threat and turn it against the people and used to oppress them.