The Least Litigated Amendment

By: Thomas Walsh

The Third Amendment to the Constitution has never been the basis of a Supreme Court decision, and it has only been cited a few times throughout U.S. legal history. It 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.”[1] The American founders wrote this amendment while they tried to create a nation that improved upon the issues they saw in colonial rule. However, it has seldom been applicable in its literal formulation to American society.[2] As such, the Third Amendment is largely overlooked in the legal field but has been cited in a few landmark cases throughout history and may have implications for sociopolitical issues within the United States today.

The amendment, which has aroused little controversy for centuries, may seem rather pointed when compared to the language used in other parts of the document. The Third Amendment has a deep foundation in Colonial American and British history.[3] In 1689, the British Parliament passed the Mutiny Act, which banned the quartering of soldiers in private homes on the mainland but not in any colonies. This ban would lead to little conflict as government-funded barracks were plentiful enough in England such that there were no logistical issues with a lack of temporary housing in private homes for soldiers. In the colonies, however, there was no framework for housing soldiers in massive barracks; General John Campbell petitioned for the Mutiny Act to apply to the American colonies. However, Parliament refused and delayed addressing troop logistics.[4] Much to the dismay of colonists, the burden of these logistics would fall upon them; the Quartering Act of 1765 prohibited British soldiers from being quartered in private homes, but it did shift the burden of creating troop housing to colonial legislatures. In many situations, New York and other colonies refused to comply with the act, defying it is a means of protest against what they thought to be an undue economic burden. As tensions grew, other colonies refused to follow British orders, including the Quartering Act. Following escalating tensions, culminating in the events of the Boston Tea Party, Parliament passed four acts officially known as the Coercive Acts. Americans would later call them the “Intolerable Acts.” One of which, the Quartering Act of 1774, gave royal governors authority to find housing for British soldiers in all American colonies, taking away power from the colonial governments and handing it to Britain. These Intolerable Acts would quickly lead to the American Revolutionary War; the effects of the Quartering Act were specifically listed in Thomas Jefferson’s Declaration of Independence.[5] “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures,” Jefferson wrote, invoking a desire for the separation of military and civil spaces that would be evident in the Bill of Rights.[6]

The Third Amendment was changed very little from Madison’s initial draft and passed unanimously. Since its inception, there have been few armed conflicts on American soil which might have required the implementation of the Third Amendment. During the War of 1812 and the American Civil War, troop quartering practices may have violated the amendment, but this was never argued in court during either conflict. Following these conflicts, the government compensated citizens for damaged property, allowing them to avoid a suit involving the Third Amendment.[7]

Rather than being applied for its literal purpose, protecting private citizens from intrusive troop quartering within their homes, the Third Amendment has been cited more often in civil cases regarding privacy. Griswold v. Connecticut cited the Third Amendment as a partial basis for the protection of marital privacy from intrusion by the government in a case that would rule that a Connecticut law banning contraception use was unconstitutional.[8] “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy,” argued Justice William O. Douglas in his deliverance of the Supreme Court’s opinion on the case.

In other applications, the amendment has been applied in such a way that would raise a question as to what defines a “soldier.” Engblom v. Carey was a case decided in 1982 regarding a prison correction workers’ strike in New York. National Guardsmen were activated and sent to work in the prisons, where some would take up residency in the state-provided employee housing of striking workers, evicting the workers who were former tenets. Two prison workers, named Marianne Engblom and Charles Palmer would file suit against the state of New York and Governor Hugh Carey. The petitioners would assert that their Third Amendment rights were violated. After the District Court dismissed their case, they appealed the decision. A 2-1 decision in the petitioners’ favor remanded their case to the District Court.[9] The District Court judge ruled in the defendants’ favor, determining that the state-directed Guardsmen were covered by qualified immunity in their actions. Due to a lack of Third Amendment legal precedence, one could not assume that the defendants knowingly violated the rights of the workers they evicted.[10]

The case would establish a precedent for future decisions in which the Third Amendment might be applicable. The ruling by the United States Court of Appeals for the Second Circuit created criteria by which they could examine future cases. These include the application of the term “owner” in the amendment applying to tenants (not exclusively property owners), the consideration of National Guard forces as ‘soldiers,’ and the fact that the Third Amendment was incorporated. This means that the amendment, as it is worded in the Bill of Rights, can be applied to all levels of government.[11] In future rulings, such precedents could prove vital to determining the constitutional legality of other governmental actions. Contemporary concerns regarding the Third Amendment often call into question the militaristic characteristics of police forces and the presence of other military-adjacent organizations within United States territory. In 2015, the United States District Court for the District of Nevada ruled that intrusions into private property by police officers did not violate an individual’s rights. The case, Mitchell v. City of Henderson, determined that the rights guaranteed by the Third Amendment are not applicable in such a case because municipal law enforcement officers are not soldiers.[12]

In future cases, how the Third Amendment applies to the quartering of and intrusion into private property by state officials will likely be decided on a case-by-case basis. The wording of the amendment does not assert where the boundaries of legality ought to be drawn in cases of utilizing citizens’ property for state purposes. The rights granted by the amendment are limited by specific wording which refers only to “soldiers.” During the writing of the Bill of Rights, Immigration and Customs Enforcement (ICE) and the National Security Agency (NSA) did not exist. Agencies and organizations which use military techniques to carry out the will of the state while acting outside the realm of traditional military operations were not a concept accounted for in the writing of the Constitution or the accompanying Bill of Rights.[13] Future litigators, judges, and legislators will likely be forced to determine more definite characteristics of a ‘soldier’ as intended by the Third Amendment. Government agents patrolling protected areas of cyberspace may not qualify as soldiers like more traditional members of the Armed Forces might, just as police forces armed with military technology and operative techniques were not in Mitchell v. City of Henderson. The Third Amendment has had little relevance for much of US legal history thus far, but it may have a crucial role in determining the future of constitutional rights.

[1] U.S. CONST. amend. III.

[2] Andrew Cohen, What Is the Third Amendment, and Will the Supreme Court Ever Examine It Again?, BRENNAN CTR. FOR JUST. (Aug. 31, 2022),

[3] Gordon S. Wood, The Third Amendment: Common Interpretation, NAT’L CONST. CTR., (last visited Nov. 16, 2022).

[4] Brandon Schwager, Pounds, Police, and Patriots: How Colonial Reactions to British Quartering Transformed from 1756-1774, 18 FAIRMOUNT FOLIO: J. HISTORY 1, 2 (May 16, 2018).

[5] The Quartering Act: Igniting the Powder Keg of War, AM. BATTLE TR. (2021), (last visited Nov. 16, 2022).

[6] Declaration of Independence: A Transcription, NAT’L ARCHIVES, (last visited Nov 16, 2022).

[7] Craig B. Hollander, “The Citizen Complains”: Federal Compensation for Property Lost in the War of 1812, 38 L. AND HISTORY REV. 659 (Oct. 21 2019),

[8] Estelle T. Griswold et al. Appellants, v. STATE OF CONNECTICUT., LEGAL INFO. INST., (last visited Nov. 16, 2022).

[9] Engblom v. Carey, UNIV. MISSOURI-KANSAS CITY, (last visited Nov. 20, 2022).

[10] John Gamble, The Third Artefact: Beyond Fear of Standing Armies and Military Occupation, Does the Third Amendment Have Relevance in Modern American Law?, 6 ALA. CIV. RTS. & CIV. LIBERTIES L. REV. 205, 213 (2015),

[11] CORNELL L. SCH., Incorporation doctrine, LEGAL INFO. INST., (last visited Nov. 20, 2022).

[12] *mitchell v. Henderson, 529 F.2d 1030 (5th Cir. 1976), JUSTIA, (last visited Nov. 20, 2022).

[13] Jeff Adachi, Police Militarization and the War on Citizens, A.B.A.: HUM. RTS. MAG., (last visited Nov. 20, 2022).