The Volokh Conspiracy

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A symposium on the oft-neglected Third Amendment


The Third Amendment, which forbids the "quartering" of troops in private homes during peacetime without the owner's consent and in wartime without specific congressional authorization, is arguably the most neglected part of the Bill of Rights. When it is remembered at all, it is often as the butt of jokes. Recently, the Tennessee Law Review published a symposium on the Amendment that will hopefully help give it some of the attention it deserves. Glenn Reynolds has a list of the contributions here. Scott Gerber's article in the symposium is particularly noteworthy for providing a helpful overview of the history of the Amendment, and scholarship on it.

Despite all the jokes about it, it is long past time that we began to take the Third Amendment more seriously. Contrary to popular mythology, which holds that the rights protected by the Amendment have never been seriously threatened, there have in fact been some egregious violations in the past. A federal district court rejected a plausible Third Amendment claim just a few months ago, while also ruling that the Amendment should be applied against state governments (it is one of the few parts of the Bill of Rights that the Supreme Court has not yet "incorporated" against the states). As I noted in my post on that case, the Amendment is of far more than antiquarian interest in an age where police forces have become increasingly militarized. In his contribution to the symposium, Glenn Reynolds argues that the Third Amendment has some important "pennumbral" implications for the way courts should interpret other constitutional rights. Other contributors to the symposium note additional ways in which the Amendment may be relevant to modern controversies.

The Third Amendment may never be one of the most important and celebrated parts of the Constitution. It's unlikely to ever get as much love as the First, Second, Fourth, and Fifth. But it nonetheless deserves to be elevated from its current obscurity.