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The Most Underappreciated and Misunderstood Of All The Constitutional Amendments

The Third Amendment to the US Constitution reads:

“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 fact that it was included as the third right under the Bill of Rights means that the framers of the Constitution deemed it important, but there is very little explanation as to why.  The Amendment has only been mentioned in a handful of cases, and in only one case, Engblom v. Carey, was it brought into direct consideration by a Federal court.  It had been incidental in a few prior cases, but no rulings had been made directly on its basis.

A historical artifact

Like other Amendments, the historical context of this amendment is obscure to many modern readers.  Ostensibly in response to the British actions that required private citizens to house and feed troops in times of conflict, and especially in response to the Quartering Act in 1765, it was included during discussions  around whether the US should have a standing army.  If it had an army, how should those troops be housed?  This was in a time before military bases, so it was a real question to be considered.

On its surface, the amendment seems clear enough.  People can’t be required to house and feed troops unless they have agreed to do so.  During the Revolutionary war, those troops were British, and were consequently enemy troops.  This is an important point we will return to soon.  But the Amendment was made after we won our revolution, and applied to any troops, including our own.

A larger context

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Aside from the economic aspect of having to feed and house troops in one’s own home, what else was at issue?  To answer that, we need to look at the rest of the Bill of Rights to see what might have been the intent of this amendment.

First – Acknowledges the right of the people to speak freely on any matter, to worship and practice their religion or not as their conscience dictates, to have a free press able to communicate broadly through the land, to be able to assemble peacefully for any purpose, and to be able to request of their government such actions as seem proper.

Second – Acknowledges the right of the people to have the means to defend themselves against threat regardless of source.

Fourth – Acknowledges the right of the people to require the government to show proper cause before searching their property, and to have proper justification for seizure of property.

Fifth – Acknowledges the right of the people to be free from state compulsion to testify against themselves, and to be free from repeated attempts to prosecute for the same crime.

Sixth – Acknowledges the right of the people to have speedy trial when charged with a crime, to know the charges against them, to confront their accusers, to compel testimony of favorable witnesses, and to have counsel.

Seventh – Acknowledges the right of the people to a trial by jury.

Eighth – Acknowledges the right of the people to be free of excessive punishment not fitting of the crime.

Ninth – Acknowledges that the rights of the people extend beyond those enumerated in the Constitution.

Tenth – Acknowledges that the People and their States have all powers not specifically excluded by the Constitution.

I have modified the language of the Amendments somewhat to make them clearer to modern readers, while attempting to preserve the original intent.

The Bill of Rights limits the power of government

In reading through the descriptions above, one thing becomes clear – the Bill of Rights specifically describes protections to be afforded to individual citizens.  In the context of the Constitution, a right is a particular area of concern that is to be respected by the government without limitation or condition.  In other words, it draws a boundary around the people and says to the government “this is a line you are not permitted to cross”.

The Left has attempted to alter the meaning of the term “right” to be that of a permission.  In effect, they seek to interpret the bill of rights as a set of permissions granted by the government, saying “here is a set of activities we will permit you to engage in, so long as you behave as we wish or as serves our interests.” .  Clearly this is a fundamental reinterpretation of what it means to have a “right”.  In thinking about the Bill of Rights, we need to remain clear about what the term means, and what it was intended by the framers to mean.

In this context, the Third Amendment takes on the form of an acknowledged right to something, consistent with the other acknowledged rights.  What might that right be; what were the drafters of the Constitution seeking to accomplish with this Third Amendment?

A new interpretation

Consider for a moment, what it would mean to have government agents resident under your roof.  Remember, that in the times in question nearly every government agent was military.  It would mean that every act you engaged in could be observed and monitored.  Any activity you engaged in could be reported to an authority.  Any conversation could be monitored either directly or through eavesdropping.  Any meetings with friends or others could be monitored, the participants noted and reported.  Any written communication could be intercepted, read and inspected.  Consider, too, in the context of the Revolutionary War, that British troops were the enemy, so by being required to house them, citizens were required to take enemy spies into their homes.  Would we have been able to plan and coordinate our Revolution if the British had been able to quarter sufficient troops in every home?

It is likely that the framers felt that these activities were too obvious to mention.  They might have felt that even if the troops were our own, that their presence would have a chilling effect on the exercise of any other liberty.  Would the framers not have been concerned about being secure in their homes with such “uninvited visitors” present?  Remember, that the modern cameras, listening devices, and recorders were still almost two hundred years in the future, so privacy violations and spying relied directly on human abilities.

Original intent

It seems reasonable that the intent of the Third Amendment was not limited to providing troops with room and board, but also included a right to be free in their own homes from spying and government surveillance.  If they would have foreknowledge of modern “bugging” capabilities, as well as the continuous centralized listening of Alexa, Siri, Android phones, Nest thermostats, internet connected cameras, and numerous other modern monitoring devices, they might have written the Third Amendment somewhat differently.

So there it is.  The Third Amendment in our Bill of Rights protects us against intrusive surveillance.  While not as clearly worded as the other amendments, probably because it seemed too obvious to the framers of the Constitution, it nonetheless recognizes a fundamental protection of individual liberty.

Perhaps a restatement of the Third Amendment in this context might be:

Third – Acknowledges the right of the people to be secure in their homes and they shall not be required to bring into their homes any intrusive surveillance agents or mechanisms.

What if we were to interpret the Third in this light?  What if we were to return to the original interpretation of all ten of the Bill of Rights?  What if we really were free?

By David Robb

David Robb is a regular contributor to The Blue State Conservative and a practicing scientist who has been working in industry for over 50 years. One of his specialties is asking awkward questions. A large part of his work over the years has involved making complex scientific issues clear and understandable to non-specialists. Sometimes he even succeeds.

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The views and opinions expressed in this article are solely those of the author and do not necessarily represent those of The Blue State Conservative. The BSC is not responsible for, and does not verify the accuracy of, any information presented.

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