When King Charles I of England signed the Petition of Right in 1628, he acknowledged a series of abuses committed under his reign, some of which were the customary rights of Englishmen dating back to Magna Carta. Charles proved that even governments long established and supposedly restrained by custom and law still needed reminding of their place in the cosmos.
Under Charles I, the English government had violated habeas corpus, trial procedures, and due process rights. Taxes had been extracted without consulting Parliament and the quartering of troops in private homes was forced upon the people of England. Charles incited civil war, lost the fight, and was beheaded in 1649.
Students of American history should recognize the abuses cited in the Petition of Right. Thomas Jefferson reiterated many of them in the Declaration of Independence because the crown had ignored history and the common law. All would be codified in the Constitution or the Bill of Rights.
Under Article I, the authority over the purse is granted to Congress. The authority to suspend the privilege of the writ of habeas corpus, exclusive to Congress, is conditional. The right to a fair and public trial is guaranteed by the Sixth Amendment. Due process is protected by the Fifth and Fourteenth Amendments. Restriction on the quartering of troops is established by the Third Amendment.
The Third Amendment 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 to be prescribed by law." Like much in the Bill of Rights, the Third Amendment's inclusion is grounded in the experiences of the American colonists.
A provision in the Intolerable Acts of 1774 required that British troops be billeted in occupied dwellings. Prior quartering acts required unoccupied dwellings and abandoned buildings be used as soldiers' housing. Sometimes the colonists would have to construct barracks. Understandably, quartering of troops became a prime catalyst for the American Revolution.
The only time in American history that the Third Amendment has been directly violated by government was the period 1861–77. Abraham Lincoln sent hordes of conscripts and foreign mercenaries into the Confederates States of America to burn, pillage, plunder, and, in the timeless words of Jefferson, to "compleat the Works of Death, Desolation, and Tyranny." The Reconstruction period in the South would have more resembled the oppressive conditions prevalent in England under Charles I, than the environment of prosperity and freedom created by the Founders.
Big Government historians and Lincoln sycophants, the vast majority of the historical profession, characterize the numerous Constitutional abuses of this period as necessary given the circumstances. As Lincoln apologist and statist historian James G. Randall said in Constitutional Problems Under Lincoln, if "the government under Lincoln erred in these respects, it erred under great provocation with the best of motives; and its policy may not be justly criticized without a full understanding of the alarming situation which confronted the nation."
It would appear, then, that the Third Amendment would be even more an eighteenth-century anachronism than the oft-cited Second Amendment. Ignoring the abuses committed during the War of Northern Aggression, there would be no time in American history when the Third Amendment's protections became a matter of concern for the American people. Although one might be quick to write off the Third Amendment as obsolete, its importance as a safeguard of freedom stands astride that of the Second Amendment.
The Third Amendment recognizes the English custom that "a man's home is his castle." Quartering of troops was especially heinous to the colonists because it effectively put property owners under house arrest. Soldiers placed in the homes of colonists essentially became the "eyes and ears" of the English government. Once permitted to roam among the people at will and to enter homes on a whim, soldiers silence dissent and opposition to government.
As written, the Third Amendment guarantees that soldiers would never be quartered in any man's home. A citizenry jealous of threats to liberty would not be foolish enough to permit the forces of government to partake of its hearth and home in peacetime, nor would it permit the legislature, even in time of war, to proscribe laws requiring the opening of homes to troops.
No level of scare tactics by elected officials would have succeeded at initiating such a legislative coup. Those attempting such a subversion of the people's liberty would have rightfully ended their days on earth on the receiving end of a musket ball or at the end of a noose.
But that was a different era. Contemporary Americans, more concerned with feeling secure than being free, overwhelmingly welcome the types of abuses the Third Amendment is supposed to protect against. To them, it is more important that government possesses an arsenal of unconstitutional powers that violate the rights of all individuals so that the proportionate few in a population of millions who commit crimes might be caught. Under these conditions, the Third Amendment can no longer be considered obscure.
The Posse Comitatus Act of 1878 forbids the use of the military in domestic law enforcement. Yet the military is often sent "among the people" to provide surveillance and reconnaissance in the search for fugitives and other elusive criminal elements, such as the DC-area snipers of a few years ago. Soldiers regularly engage in covert drug interdiction along the border with Mexico. They have once again become the "eyes and ears" of the government.
It is doubtful most Americans see it this way. After all, bad guys are bad and so are drugs, so whatever government does to stop both is okay. This ignorance is only to become bloated in an exaggerated age of terrorism. Rather than give in to demands to expand the law-enforcement capabilities of government, we should consider broadening what is defined as a "soldier" to restore the letter of the Third Amendment to its Constitutional intent.
According to one entry in the American Heritage Dictionary, a "soldier" is defined as "an active, loyal, and militant follower." Therein describes nearly all employees of every agency of the executive branch of our government. As argued on Ray’s Realm, "Quartering of soldiers (or other government enforcement), should include extensions of their senses, secretly intruding their presence. Wiretaps, bugs, audio lasers and the like are all extensions of the senses . . . thus thwarting the spirit of the intent while seemingly not violating the letter of the law." Therefore, local police, State police, FBI, CIA, BATF, FCC, SEC, all should be considered soldiers in the sense of the Third Amendment.
The protections guaranteed by the Third Amendment and the rest of the Bill of Rights were never intended to be abridged by government judges so that government agents (cops, soldiers, tax collectors, regulators) could do their jobs easier. In "conflicts" between the rights of the individual and the supposed needs of government to enforce the law, the individual should win – always. Otherwise, the Petition of Right, Constitution, and Bill of Rights, are nothing more than worthless parchment.
March 2, 2004
