The Third Amendment’s Consent Clause: A Conceptual Framework for Analysis and Application

by Mark A. Fulks & Ronald S. Range, III

The Third Amendment to the United States Constitution provides 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 prescribed by law.” This amendment was adopted, before the days of the standing army, in response to centuries of abusive quartering of troops that not only invaded the sanctity of the home but also invariably fueled incursions against the family and its personal property. In modern times, many commentators have discarded the Third Amendment as a useless relic of antiquity. Practical reality supports this belief but only to the extent that the Third Amendment is applied in the traditional sense in which it arose. However, recent events suggest that, while the Third Amendment may have been dormant for some time, it still has an important role to play.

In response to civil unrest in Ferguson, Missouri, the National Guard was activated and deployed among the people to maintain the peace. This incursion gave rise to questions concerning the long-term stationing of military forces among the American people and the rights of the citizenry. Moreover, as police forces across the country grow more and more militarized, with tanks and machine guns galore, the once clear line between police officer and soldier grows murky. This article argues that the Third Amendment still has a role to play, and that that role grows with each incident of unrest and each police acquisition of military technology.

 

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