Government Intrusion and Third Amendment

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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.

The Third Amendment has rarely been the subject of litigation.1 The Supreme Court has never directly construed it, and only two lower federal courts—the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit—have examined the Third Amendment in depth.2 This lack of judicial interpretation may be due to the Amendment’s straightforward phrasing. As Justice Joseph Story stated in his Commentaries on the Constitution of the United States, the “provision speaks for itself” as “secur[ing] the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.” 3

The few Supreme Court cases that mention the Third Amendment support this view. In Griswold v. Connecticut, a case involving the constitutional right to contraception, the Court included the Third Amendment as one of several constitutional guarantees with “penumbras” that “create zones of privacy.” 4 Likewise, in Katz v. Connecticut, concerning the meaning of a “search” or “seizure” under the Fourth Amendment, the Court noted the Third Amendment as “another aspect of privacy from governmental intrusion.” 5 Finally, in Laird v. Tatum, involving a challenge to an army surveillance program directed at civilians, the Supreme Court cited the Third Amendment as an example of “a traditional and strong resistance of Americans to any military intrusion into civilian affairs.” 6

Engblom v. Carey, the only federal appeals court case to examine the Third Amendment in depth, concerned whether the State of New York violated correction officers’ Third Amendment rights when it used their state-owned residences without their consent to house members of the New York National Guard.7 The Second Circuit recognized the Third Amendment as “designed to assure a fundamental right of privacy.” 8 The court further held that the Fourteenth Amendment incorporated the Third Amendment and made it enforceable against the states.9 However, the Second Circuit did not reach the issue of whether the State of New York violated the plaintiffs’ Third Amendment rights because it decided the case on procedural grounds.

1: Although the United States quartered troops during both the War of 1812 and the Civil War, see Tom W. Bell, Note, The Third Amendment: Forgotten but Not Gone, 2 Wm. & Mary Bill of Rts. J. 117, 136–39 (1993), there do not appear to have been any cases alleging Third Amendment violations based on this quartering. Congress did, however, authorize compensation for damage caused by quartering during the War of 1812. See, e.g., Act of Apr. 17, 1822, ch. 22, 6 Stat. 264 (authorizing payment “for the loss of a house by fire . . . while, without the consent of the owner, it was occupied by the troops of the United States” ).
2: Engblom v. Carey, 522 F. Supp. 57 (S.D.N.Y. 1981), aff’d in part and rev’d in part, 677 F.2d 957 (2d Cir. 1982).
3: 3 Joseph Story, Commentaries on the Constitution of the United States § 1893 (1833); accord Warren E. Burger, Introduction, in Burnham Holmes, The American Heritage History of the Bill of Rights: The Third Amendment 6 (1991) ( “[T]he Third Amendment still embodies the same basic principles: that the military must be subject to civilian control, and that the government cannot intrude into private homes without good reason.” ); see also Samuel F. Miller, Lectures on the Constitution of the United States (1891) (reflecting Justice Miller’s view that the Third Amendment “seems to have been thought necessary” and “is so thoroughly in accord with all our ideas, that further comment is unnecessary” ).
4: Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
5: Katz v. United States, 389 U.S. 347, 350 n.5 (1967). For more information about Katz, see Amdt4.3.3 Katz and Reasonable Expectation of Privacy Test.
6: Laird v. Tatum, 408 U.S. 1, 15 (1972).
7: Engblom v. Carey, 677 F.2d 957, 958–59 (2d Cir. 1982).
8: Id. at 962 (citing Griswold, 381 U.S. at 484).
9: Id. at 961 ( “[W]e agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.” ); see Engblom v. Carey, 552 F. Supp. 57, 65 (S.D.N.Y. 1981) ( “Here, it should not be necessary to wander too far into the thicket of incorporation jurisprudence. Under any of the theories extant . . . the right not to have troops quartered in one’s home must be considered so incorporated.” (internal citations omitted)). For more information on the Fourteenth Amendment’s incorporation of the Bill of Rights, see Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.