Do We Really Need the Third Amendment? Or What Can and Should We Do About Constitutional Vestiges


I don’t expect that anything referencing the Third Amendment of the Constitution in the title is going to command a wide readership. After all, who remembers what the Third Amendment says or why it is part of the Bill of Rights?

But thinking about the Third Amendment offers a jumping-off point for considering how we should regard, and what we should do about, the Constitution when some of its provisions no longer serve the needs of the era in which we live.

During America’s contemporary crisis of democracy, this question has taken on great importance.

But before considering the possibilities of constitutional revision in responding to that crisis, let me say a word about the Third Amendment.

As a quick reminder, the amendment says: “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.”

At the time the Constitution and the Bill of Rights were written, having troops living among the civilian population was top of mind.

During the French and Indian War (1754-1763), the British Army commandeered and used private homes for their soldiers. Those soldiers, many of whom were sent directly from jails to the frontlines of battle, were often unruly and cruel to the people in whose homes they lived.

In 1765 and 1774, the British King and Parliament doubled down on this very unpopular practice and passed Quartering Acts “to punish the colonies for the Boston Tea Party and other acts of colonial disloyalty.”

Not surprisingly, one of the grievances listed in the Declaration of Independence referenced “quartering large Bodies of Armed Troops among us.”

When the Bill of Rights was added to the Constitution, this grievance provided the impetus for including what would become the Third Amendment. Together with the Second Amendment, it afforded protection against a possibly tyrannical central government.

Since then, while the Second Amendment has flourished by being wrenched from its original purpose, the Third Amendment has not aged well.

Today, as the Brennen Center for Justice at New York University notes, “there simply aren’t any litigants asserting the rights and privileges of the Third Amendment.”

University of Michigan Professor Leonard Niehoff agrees. “I’m not aware,” he says, “of any current cases that raise a major Third Amendment claim, and I can’t say with confidence when a federal case last referred to it.”

He names Mitchell v. City of Henderson, a 2015 case from the federal district court in Nevada as one of the few where litigants tried to use it.

In that case, Niehoff says, “The plaintiffs alleged that police officers brutally forced them to leave their home so they could occupy it to gain a tactical advantage in handling a domestic violence incident happening next door. The plaintiffs claimed that this conduct violated the Third Amendment, among other things. The court concluded that it didn’t because (a) police officers aren’t soldiers and (b) occupying the premises for less than 24 hours didn’t amount to quartering.”

In the few other cases where Third Amendment claims have been raised, courts have been asked to rule that the amendment prohibited the National Guard from evicting prison guards from their on-site residences, that it should prevent the city of Los Angeles from ending rent control, and that it justified army reservists in refusing to march in a parade.

Looking to the future, the Brenan Center predicts that the Third Amendment isn’t likely to be revived “anytime soon.” And according to the historian Gordon Wood, “The Supreme Court has never decided a case on the basis of it.”

However, to give the Third Amendment its due, we need to acknowledge that it did appear in the list of amendments that former Supreme Court Justice William Douglas used in Griswold v. Connecticut to recognize a constitutional right of privacy.

Still, I think the Brennan Center gets it right when it says that the Third Amendment exists in a kind of “dead zone” in the Constitution.

Another “dead zone,” much more consequential than the Third Amendment, is the Constitution’s Article V which defines procedures for amending the Constitution.

On its face, Article V seems less dead than the Third Amendment. After all, the Constitution has been amended twenty-seven times, the last one coming three decades ago in 1992.

A look at American history reveals, what the National Constitution Center labels, four distinct periods of Article V activity and also long periods of time in which no changes have been made to the Constitutional text.

The periods of amendment activity identified by the National Constitution Center were (1) The Founding Period from 1791 to 1804 which brought us the first twelve amendments; (2) Reconstruction, the five years from 1865 to 1970 during which the 13th, 14th, and 15th amendments were added to the Constitution; (3) the Progressive Era, from 1913 to 1920, when the 16th through the 19th amendments were ratified; and (4) what the Constitution Center labels the “Modern Period,” running from 1933 to 1992. During that time the Constitution was amended eight times.

In between those periods, for a total of 119 years, the constitutional text was unchanged.

Despite those long stretches of inaction, scholars sometimes engage in flights of fancy and propose amendments that would modernize our political system or make it more democratic.

But notwithstanding those academic exercises, Article V still seems pretty moribund.

Now, no matter how great the need, the combination of Article V’s supermajority requirements, America’s deepening political polarization, and our red state/blue state divide make it almost inconceivable that the amendment process will be used again soon.

America seems stuck with what former Supreme Justice Antonin Scalia called in 2008 our “dead” Constitution, including the Third Amendment.

Today, it is only the decisions and pronouncements of the Supreme Court that can adapt the Constitution and make it work. But the death grip of originalism on today’s Supreme Court majority threatens even that adaptive capacity.

I am not the first to note either this development or the nearly-dead Article V.

Last August, Jedediah Britton-Purdy called for a renewal of the constitutional amendment process. Two months later, in the October 22, 2022 issue of the New Yorker, Jill Lepore said that notwithstanding the inclusion of Article V, the Constitution is in fact “unamendable.”

She noted that this fact of our constitutional history is a betrayal of the hopes of those who authored the Constitution.

“The idea for an amendment clause, a constitutional fail-safe,” Lepore wrote, “came from the states, where people demanded that their constitutions be revisable, ‘to rectify the errors that will creep in through lapse of time, or alteration of situation,’ as one town meeting put it. No single article of the Constitution is more important, the Framers believed, because, if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.”

In the end, I can’t imagine that the vestigial quality of the Third Amendment will ever stir revolutionary fervor. And I don’t know how to get around the formidable barriers that now make it almost impossible to change the Constitution through the amendment process.

Maybe in the future, lawyers as imaginative as Justice Douglas will figure out ways to put the Third Amendment to good use. But if conditions ever get to the point where our government decides to quarter troops in our homes, I don’t think the Third Amendment will save us.

For now, I guess I’ll just ignore it and hope that we never need it.

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