Are the Rights Guaranteed by the Third Amendment Sufficiently Deep Rooted and Fundamental To Be Incorporated Into the Fourteenth?

by E. Duncan Getchell, Jr., Matthew D. Fender, & Michael H. Brady

Given the deep and elaborate doctrines associated with the rest of the first eight amendments to the United States Constitution, the Third Amendment is startling in its obscurity. It is a constitutional enigma, shrouded in eighteenth-century obscurity, and on its face appears to be a quaint historical artifact with little application to the twenty-first century. In this article, we will explore the limited Third Amendment jurisprudence that is available and consider what, if any, application the Third Amendment has in the United States today. The key questions to be considered are four. First, who is a soldier? Second, what constitutes quartering? Third, what is a house? And finally, are the Third Amendment’s protections incorporated against the States by the Fourteenth Amendment? In this article we consider the incorporation question with a focus on the grounding of the right in English and colonial history under the doctrinal test for incorporation as it now stands.

 

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