Quartering of Troops (III)

The Third Amendment to the Constitution bans the quartering of troops in the homes of American citizens without the owner’s consent during times of peace, but it allows the legislature to prescribe quartering by law in times of war. At the time of independence, Americans complained that the British had imposed the presence of troops into colonial homes and had kept a standing army in the colonies without the consent of the legislatures of the colonies. This grievance was listed in the Declaration of Independence, decrying the practice as ‘‘rendering the Military independent of and superior to the Civil power’’ by quartering large numbers of troops in the American colonies, with the only check on their military power ‘‘mock Trial.’’ British troops in colonial homes were effectively above the law. The effect of the quartering of troops in the colonies ranged from mere inconvenience to murders that went unpunished. Because the quartering of troops was one of the principal objections to British rule that led to the revolution, it is not surprising that it was contained in the Bill of Rights.

The troop quartering amendment can be viewed as a compromise between competing values. On one hand, the framers had come to value privacy in the home, the often quoted notion that ‘‘a man’s home is his castle.’’ The excesses of the British made it clear that this right had to be protected within the Constitution. On the other hand, there was a realistic notion prevalent that marching troops, in times of peace or war, had to have a place to stay, a position advocated by pragmatic founding father Roger Sherman of Connecticut. The Framers recognized that the demands of war would raise the need for army presence in the country among the citizenry.

Therefore, the Third Amendment balances between the goal of privacy and military exigencies of the future by banning the quartering of troops during peace outright, while leaving wartime quartering to legislators, who could weigh the need for quartering and provide safeguards where necessary. This reflects the fact that, when individual rights are balanced against a wartime need to station troops, the governmental interest in the military trumps. Such balancing goes on often in constitutional law, where the nature of the constitutional right is weighed against the seriousness of the governmental interest. The Third Amendment effectively means that American citizens will not have to provide for troops, unless war-based demands outweigh that fundamental right of privacy.

As for the contemporary legacy of the Third Amendment, it is notable that the Third Amendment was one of the constitutional clauses cited by Justice William O. Douglas in the landmark privacy case Griswold v. Connecticut, 381 U.S. 479 (1965), which held that there was a fundamental right to privacy that banned governmental regulation of the use of contraceptives in the bedroom. The Griswold case later was the precedent upon which was built Roe v. Wade, which found that a woman’s right to choose whether to have an abortion was within the fundamental right to privacy. Under Roe and its progeny, the Court has struggled to weigh the interest in privacy against the government’s interest in protecting life. Although the privacy right has expanded to encompass things never imagined by the founders, legislatures and courts continue to weigh the fundamental right against governmental interest in protection of society. The history of the Third Amendment suggests that such balancing has always been necessary when it comes to privacy.

JAMES F. Van ORDEN

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