After the American Revolution, the constitutional framers debated whether the United States should even have a standing army. The federalists won that debate, but James Madison wrote the Third Amendment for the Bill of Rights to guarantee that the federal government couldn’t force local governments, businesses and citizens to house U.S. soldiers.
“Ultimately, the founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens,” writes journalist Radley Balko for the American Bar Association Journal. Balko adds, “For the first 50 years or so after ratification of the Constitution, military troops were rarely, if ever, used for routine law enforcement. But, over time, that would change.”
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Since the Third Amendment’s ratification in 1791, the U.S. Supreme Court has only mentioned it a couple of times. One instance is the 1952 case of Youngstown Sheet & Tube Company v. Sawyer. In order to sabotage a national steel strike during the Korean War, President Harry Truman had issued an executive order to seize and operate the country’s steel mills.
The court ruled the president didn’t have the authority to seize private property without an act of Congress. In the majority opinion, Justice Robert H. Jackson used the Third Amendment, which prohibited forcible quartering during wartime without congressional approval, to illustrate the court’s decision: “even in war time, his seizure of needed military housing must be authorized by Congress.”
In the 1965 case of Griswold v. Connecticut, the court argued that the First, Third, Fourth and Ninth Amendments suggested a right to privacy, and that this gave married couples the right to use contraception.
“The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy,” wrote Justice William O. Douglas in the majority opinion.
Although the U.S. Supreme Court has never weighed in on who counts as a “soldier” under the Third Amendment, a couple of lower courts have, creating precedents that the Supreme Court could cite in future cases.
In the 1982 case of Engblom v. Carey, the U.S. Court of Appeals for the Second Circuit ruled that the governor of New York didn’t violate the rights of striking correctional officers at New York’s Mid-Orange Correctional Facility when he evicted them from their prison residences and reassigned those residences and their jobs to National Guard troops.
However, the court did rule that National Guard members are “soldiers” under the Third Amendment, and that “the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.”
In 2015, the U.S. District Court for the District of Nevada cited this ruling while considering whether police officers violated a plaintiff’s Third Amendment right when they forcibly occupied his house in Mitchell v. City of Henderson, Nevada. That court sided with the police, ruling that they aren’t “soldiers” under the Third Amendment.
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