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One of [America’s] greatest strengths is that the military is responsive to civilian authority, and that we do not allow the Army, Navy, and the Marines and the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result.

– MARINE LT. GEN. STEPHEN OLMSTEAD, IN HIS 1987 TESTIMONY BEFORE THE US CONGRESS

The Third Amendment reads, in full:

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.

You might call it the runt piglet of the Bill of Rights amendments – short, overlooked, sometimes the butt of jokes. The satirical news site The Onion once mocked it with an article about a Third Amendment advocacy group and its record 191-year fight to keep the amendment intact. The group’s motto: “Keep the fat hands of soldiers out of America’s larders!”

The Supreme Court has yet to hear a case that turns on the Third Amendment, and only one such case has reached a federal appeals court.[16] There have been a few periods in American history when the government probably violated the amendment, and on a large scale, but those incursions into quartering didn’t produce any significant court challenges. In the War of 1812, for example, federal troops were quartered in private homes by the thousands, and quartering was also widespread during the Civil War. On both occasions, the quartering was neither authorized nor prescribed by Congress. During World War II, US military forces stationed themselves in the homes of Aleutian Islanders in preparation for an anticipated attack by Japan. Though it is likely that the government overstepped its authority in all of these instances, they failed to produce any work for the Supreme Court to hash out the amendment’s protections and exceptions. Not surprisingly, then, Third Amendment scholarship is a thin field, comprising just a handful of law review articles, most of which either look at the amendment’s history or pontificate on its obsolescence.[17]

Given the apparent irrelevance of the amendment today, we might ask why the Framers found it so important in the first place. After all, citizens were made to sacrifice for national defense in ways far more intrusive. The Constitution allows for conscription, for example, and the Continental Army openly seized property like livestock and food from colonists.[18] Why, then, was quartering so despised?

One answer returns to the Castle Doctrine. If you revere the principle that a man’s home is his castle, it hardly seems just to force him to share a portion of it with soldiers – particularly when the country isn’t even at war. But the historical context behind the Third Amendment shows that the Framers were worried about something more profound than fat soldier hands stripping the country’s larders. The amendment was a placeholder for the broader aversion to an internal standing army.

At the time the Third Amendment was ratified, the images and memories of British troops in Boston and other cities were still fresh, and the clashes with colonists that drew the country into war still evoked strong emotions. What we might call the “Symbolic Third Amendment” wasn’t just a prohibition on peacetime quartering, but a more robust expression of the threat that standing armies pose to free societies. It represented a long-standing, deeply ingrained resistance to armies patrolling American streets and policing American communities.

And in that sense, the spirit of the Third Amendment is anything but anachronistic.

AS WITH THE CASTLE DOCTRINE, COLONIAL AMERICA INHERITED its aversion to quartering from England. British opposition to the practice dates back to the decade after the Norman Conquest, when King William first stationed a permanent army in England for national defense. To raise soldiers for an army, subsequent kings would often pardon killers and thieves, conscript them into military service, then billet them in towns and cities. As you might imagine, giving criminals weapons and the authority of soldiers, then billeting them among the population, brought some problems.

Opposition to quartering persisted for centuries, culminating with a ban on the practice in the English Bill of Rights signed by William and Mary in 1689.

Appreciation of the problems associated with putting soldiers among the citizenry ultimately carried over to the New World, just as the Castle Doctrine did. And as with the Castle Doctrine, England wasn’t nearly as respectful of the principle in the colonies as it was at home. The first significant escalation of the issue came in the 1750s, when the British sent over thousands of troops to fight the Seven Years’ War (known in the United States as the French and Indian War). In the face of increasing complaints from the colonies about the soldiers stationed in their towns, Parliament responded with more provocation. The Quartering Act of 1765 required the colonists to house, feed, and supply British soldiers (albeit in public facilities). Parliament also helpfully provided a funding mechanism with the hated Stamp Act.[19]

Protest erupted throughout the colonies, both in the streets and in the legislatures.[20] Some protests spilled over into violence, most notably the Boston Massacre in 1770. England only further angered the colonists by responding with even more restrictions on trade and imports (the laws that customs officials used general warrants to enforce). Parliament then passed a second Quartering Act, in 1774, this time specifically authorizing British generals to put soldiers in colonists’ homes. There were no wars going on at the time. The law was aimed squarely at correcting the colonies’ insubordination. England then sent troops to emphasize the point.[21]

It was the deployment of British soldiers to colonial cities strictly for the purpose of enforcing the law that set long-smoldering hostilities aflame. Using general warrants, British soldiers were allowed to enter private homes, confiscate what they found, and often keep the bounty for themselves. The policy was reminiscent of today’s civil asset forfeiture laws, which allow police to seize and keep for their departments cash, cars, luxury goods, and even homes, often under only the thinnest allegation of criminality.

Quartering itself – the specific burden of giving up a bed to a soldier, feeding him, and clothing him – was not what edged cities like Boston to the brink of war. The actual quartering of British troops in the private homes of colonists was rare, at least up until the start of the American Revolution.[22] It was the predictable fallout from positioning soldiers trained for warfare on city streets, among the civilian populace, and using them to enforce laws and maintain order that enraged colonists. Contemporary newspaper accounts documented frequent and increasingly bitter altercations between soldiers and citizens.[23] Bostonians were British subjects, but they were being treated like enemies of the state. They began to interpret the stationing of troops in their city as an act of war.

AFTER THE AMERICAN REVOLUTION, THE LEADERS OF THE new American republic had some difficult decisions to make. They debated whether the abuses that British soldiers had visited upon colonial America were attributable to quartering alone or to the general aura of militarism that came with maintaining standing armies in peacetime – and whether restricting, prohibiting, or providing checks on either practice would prevent the abuses they feared.

Antifederalists like George Mason, Patrick Henry, Sam Adams, and Elbridge Gerry opposed any sort of national army. They believed that voluntary, civilian militias should handle issues of national security. To a degree, the federalists were sympathetic to this idea. John Adams, Thomas Jefferson, and James Madison had all written on the threat to liberty posed by a permanent army. Even Alexander Hamilton, the most federalist of the federalists, presciently warned about the temptation to sacrifice liberty at home for security from outside threats:

The violent destruction of life and property incident to war – the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security, to institutions, which have a tendency to destroy their civil and political rights. To be more safe they, at length, become willing to run the risk of being less free.[24]

But the federalists still believed that the federal government needed the power to raise an army. Those same liberties faced a greater threat from outside forces, and were likely to be obliterated entirely if the young nation was conquered by a foreign power. In the end, the federalists won the argument. There would be a standing army. But protection from its potential threats would come in an amendment contained in the Bill of Rights that created an individual right against quartering in peacetime. Even during wartime, quartering would need to be approved by the legislature, the branch more answerable to the people than the executive.

Taken together, the Third, Second, and Tenth Amendments indicate the Founders’ desire for the power to enforce laws and maintain order to be primarily left with the states. As a whole, the Constitution embodies the rough consensus at the time that there would be occasions when federal force might be necessary to carry out federal law and dispel violence or disorder that threatened the stability of the republic, but that such endeavors were to be undertaken cautiously, and only as a last resort. More importantly, the often volatile debate between the federalists and the antifederalists shows that the Third Amendment itself represented much more than the sum of its words. The amendment was in some ways a compromise, but it reflects the broader sentiment, shared by both sides, about militarism in a free society. Ultimately, the Founders decided that a standing army was a necessary evil, but that the role of soldiers would be only to dispel foreign threats, not to enforce laws against American citizens.[25]

BEFORE THE BILL OF RIGHTS COULD EVEN BE RATIFIED, however, a rebellion led by a bitter veteran tested those principles. Daniel Shays was part of the Massachusetts militia during the Revolutionary War. He fought courageously at Bunker Hill, Lexington, and Saratoga. He was wounded in action and received a decorative sword from the French general Lafayette in recognition of his service. After the war ended, Shays returned to his farm in Massachusetts. It wasn’t long before he began receiving court summonses to account for the debts he had accumulated while he was off fighting the British. Shays went broke. He even sold the sword from Lafayette to help pay his debts.

Other veterans were going through the same thing – they were broke, often wounded from battle, and getting little help from the country they’d just fought to create. The debt collectors weren’t exactly villains either. Businesses too had taken on debt to support the war. They set about collecting those debts to avoid going under. Shays and other veterans attempted to get relief from the state legislature in the form of debtor protection laws or the printing of more money, but the legislature balked.

In the fall of 1786, Shays assembled a group of eight hundred veterans and supporters to march on Boston. They planned not only to close down the courthouses to prevent them from foreclosing on the veterans’ farms but also to forcibly free debtors from prison. The movement subsequently succeeded in shutting down some courtrooms, and some began to fear that it threatened to erupt into a full-scale rebellion.

In January 1787, Massachusetts governor James Bowdoin asked the Continental Congress to raise troops to help put down the rebels, but under the Articles of Confederation the federal government didn’t have the power to provide that sort of assistance to the states. So Bowdoin instead assembled a small army of mercenaries paid for by the same creditors who were hounding men like Shays. After a series of skirmishes, the rebellion had been broken by the following summer.

Shays’ Rebellion was never a serious threat to overthrow the Massachusetts government, much less that of the United States, and it was put down relatively quickly, without the use of federal troops, and with little loss of life beyond the rebels themselves. But its success in temporarily shutting down courthouses in Boston convinced many political leaders in early America that the country needed a stronger federal government. Inadvertently, Shays spurred momentum for what became the 1787 Constitutional Convention in Philadelphia.

The impact of Shays’ Rebellion didn’t end, however, at Philadelphia. Memories of the rebellion and fears that something like it could destabilize the new republic blunted memories of the abuses suffered at the hands of British troops and made many in the new government more comfortable with the use of federal force to put down domestic uprisings.[26]

In 1792, just five years after the ratification of the Bill of Rights, Congress passed the Calling Forth Act. The new law gave the president the authority to unilaterally call up and command state militias to repel insurrections, fend off attacks from hostile American Indian tribes, and address other threats that presented themselves while Congress wasn’t in session. In addition to the concerns raised by Shays’ Rebellion, growing discontent over one of the country’s first federal taxes – a tax on whiskey – was also making the law’s supporters anxious. The Calling Forth Act allowed the president to federalize and deploy the militia “whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.” Two years later, in 1794, President George Washington used the act to call up a militia to put down the Whiskey Rebellion in 1794 in western Pennsylvania.

The Calling Forth Act did expand the power of the executive, and Washington’s willingness to invoke it showed that the new government wouldn’t hesitate to use an armed force on its own citizens when faced with a violent uprising. But the law still authorized the president to call up such a force only in dire situations, and then only long enough to dispel the threat. That power would be further regulated, in 1807, with the Insurrection Act, which clarified that the president could call up the military to put down a rebellion only if so requested by a state; he could send in the military in spite of a state’s wishes only if he determined that the situation was so dire that federal law could no longer be enforced, or if the basic rights of the state’s citizens were being violated and the state couldn’t or wouldn’t do anything about it. The Insurrection Act, which stipulated that the military was to be used only as an absolute last resort, would be used in subsequent decades to put down slave rebellions and prison riots.

So ideas about law and order were already evolving. The young republic had gone from a country of rebels lashing out at the British troops in their midst to a country with a government unafraid to use its troops to put down rebellions. But American presidents had still generally adhered to the Symbolic Third Amendment. For the first half-century or so after ratification of the Constitution, military troops were rarely if ever used for routine law enforcement.

But that would soon change.

ON APRIL 8, 1851, CHARLES LORING STOOD UP IN A BOSTON courtroom to deliver his closing argument. He’d represented his client for only a few days, but the man’s freedom hung in the balance. Outside the courtroom, federal marshals, militia, and Boston constables and watchmen stood guard. Iron chains blocked all entrances to the building. Four days earlier, Thomas Sims, a seventeen-year-old escaped slave, had been arrested in the free state of Massachusetts.[27] Sims had escaped the Savannah plantation of John Potter, one of the city’s wealthiest farmers. Sims then stowed away on a freight ship, which brought him to Boston.[28]

Sims had been arrested under the Fugitive Slave Act, passed the year before as part of the Compromise of 1850, a package of bills aimed at ameliorating the growing tensions between free and slave states. An earlier Fugitive Slave Act, passed in 1793, already prohibited citizens from aiding the escape of slaves and mandated their return to their masters. But as slavery fell out of favor in the North, many cities and towns became places of refuge for freed slaves. State legislatures in the North began passing laws that made it easier for escaped slaves to win their freedom. The 1850 law was passed to plug the holes that had subsequently been poked in the law passed a half-century earlier.

Even for its time, it was an outrageous piece of legislation.[29] Any black person in a free state could be claimed as an escaped slave on little more than the word of a Southerner claiming to own him. The accused would then be arrested and given a hearing (not a jury trial) in front of an appointed federal commissioner (not a judge). Denied habeas corpus, the alleged slave was neither permitted to testify on his own behalf nor allowed to personally challenge the word of the man who claimed him as his property. The commissioner’s decision could not be appealed. Anyone aiding a slave’s escape – even by merely offering him food or water – was guilty of a federal offense, punishable by a $1,000 fine and six months in prison. Not only were federal marshals paid bounties for capturing escaped slaves, they could be fined $1,000 if they refused to arrest a black person whom any white person claimed was a slave. As if all that weren’t enough, the appointed commissioners who decided the fates of the accused were paid $10 if they ruled in favor of the slave owner, but just $5 if they ruled in favor of the alleged slave. The law was so skewed toward slave owners that even blacks who had been free all their lives were at risk of being consigned to slavery by false accusations.

The Sims case attracted national attention among opponents of slavery. When Sims was ordered back to the plantation, prominent abolitionists like Frederick Douglass, Ralph Waldo Emerson, William Lloyd Garrison, and Henry David Thoreau wrote enraged polemics condemning the farcical proceedings, but most of Boston was complacent. The prospect of a civil war was daunting. For the time being, many in the North were willing to tolerate slave-catching as the price for avoiding bloodshed – at least blood shed by people other than slaves.

Three years later, the mood had changed, and Boston was again the site of a fugitive slave hearing. Nineteen-year-old Anthony Burns had escaped to Boston from an estate in Richmond, Virginia.[30] He was working for a clothier when he was apprehended on May 24, 1854, by slave catcher Asa O. Butman, who arrested him under the pretext of a jewelry store robbery.[31] On the morning of Burns’s hearing, armed abolitionists calling themselves the Vigilance Committee forced their way into the courtroom with a battering ram. In the ensuing melee, a federal marshal was killed. The rescue was unsuccessful, and the rescuers were arrested, but the event captured Boston’s attention – and the country’s.

When Burns’s hearing resumed the next day, thousands of people came out to protest. Boston mayor J.V.C. Smith called up two companies of the Massachusetts militia to keep order for the remainder of the hearing. Finding those forces inadequate, he then contacted President Franklin Pierce directly to request that two US Army battalions and fifty Marines be sent to Boston.[32]

During his 1852 campaign, Pierce had vowed more robust enforcement of the Fugitive Slave Act. So when Smith asked for troops, Pierce consented. He also put hundreds more troops on standby just in case Smith needed them.[33] By the end of the week, the hearing still wasn’t over. Because Burns would have to be kept in Boston over the weekend, the troops had to stay there too. The protests grew, as did tensions between the troops and the protesters.

On June 2, 1854, slave commissioner Edward G. Loring – a double cousin of the man who had defended Thomas Sims – ordered Anthony Burns returned to Virginia. Some fifty thousand Bostonians poured into the streets and took to rooftops in protest.[34] Some flew American flags upside down, and others shouted “Kidnappers!” at the police and soldiers. One group hoisted a coffin under a banner that read, THE FUNERAL OF LIBERTY.[35] The city was angry, as much at the law as at the amount of force their own state officials had brought to bear to enforce it.

The moment Loring issued his decision, Boston went into lock-down. The troops fired cannons in the air as a warning to the protesters. The mayor declared martial law (probably illegally).[36] Over the next several hours, US soldiers and state militiamen cleared the streets of Boston. On several occasions, the militiamen fired into the crowd. When the troops mistook a crowd surge for an assault, they charged the protesters with bayonets. There were numerous injuries, a few of them serious, but somewhat miraculously, there were no fatalities.[37] Once the streets were cleared, another group of troops marched the prisoner from the courthouse to the steamship waiting for him at the docks. From Boston Harbor, the site of the Boston Tea Party, the ship and the federal troops aboard it took Anthony Burns back to Virginia – from a city nicknamed “the Cradle of Liberty” to the shackles awaiting him in Richmond.

It hadn’t yet been one hundred years since the Boston Massacre, in which British soldiers fired first into the air, then directly into a mob of angry protesters, effectively sparking the American Revolution. Yet, on the morning of June 2, 1854, it was US soldiers who lined Boston’s streets, who fired shots from a cannon positioned in the town square as a warning to fellow Americans, and who used the threat of military force to silence the speech of American citizens. The reason for the protests – that a man who had escaped the yoke and found refuge in the arms of a free state was being sent back into bondage – only compounded the poignancy of the scene.

The heavy-handed response and the arresting imagery of federal troops imposing martial law on an American city was bad enough. But the Anthony Burns affair also brought about a new and significant breach of the Symbolic Third Amendment. Like Franklin Pierce, who had appointed him, US Attorney General Caleb Cushing was a doughface, a Northerner with Southern sympathies. He had been looking for an occasion to strengthen enforcement of the Fugitive Slave Act, as his boss had promised in the campaign. In response to the vigilantism and public backlash in Boston, he issued what became known as the Cushing Doctrine.[38] The policy allowed US marshals to call up the military to help them enforce federal law, without explicit authorization from either the president or the Congress.

Prior to the Cushing Doctrine, when a US marshal needed a posse, he typically drew it from men in his jurisdiction. If he needed backing from the military, he had to get authorization from the president. The difficulty of obtaining that authorization made such requests rare. The Cushing Doctrine made it easier. Calling on federal troops to use force against American citizens had been reserved for insurrection or rebellion, but now there was a new criterion: a single marshal could call up troops merely if he felt that people were preventing him from performing his duties. The opinion would be used to hunt down fugitive slaves in northern states where the fugitive slave law was unpopular, to put down John Brown’s antislavery revolt at Harper’s Ferry, West Virginia, and to enforce federal law on the relatively lawless western frontier.

A major barrier had come down: the federal military could now be routinely used to enforce federal law. And it happened not by way of a constitutional amendment, or a vote from an elected Congress, or even a Supreme Court decision, but after an opinion issued by a US attorney general.

THE NEXT CHALLENGE TO THE SYMBOLIC THIRD AMENDMENT came after the Civil War, during Reconstruction. The federal government stationed US troops throughout the southern states to protect ex-slaves from retribution and to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments and the Reconstruction Acts. By most any definition, the troops were an occupying force, performing or closely overseeing nearly all government functions in the former Confederacy.

The mass deployment of troops in the South was made possible by a series of laws called the Force Acts. The first law, passed by Congress in 1870, made it a federal crime to use threats, force, intimidation, or bribery to keep someone from voting based on race or prior status as a slave. It was basically the enforcement mechanism for the Thirteenth Amendment. The second law, passed in 1871, allowed for federal oversight of elections if two or more citizens in any town of more than twenty thousand people requested it. The third law, also passed in 1871, is sometimes called the Ku Klux Klan Act. It gave the federal government sweeping authorization to use the military against any groups suspected of conspiring against federal law. The law also made the terror and intimidation tactics used by white supremacist groups a federal offense and authorized the president to suspend habeas corpus if, in his judgment, other efforts to suppress race-related terror and violence weren’t working.

As long as the troops were in place, Reconstruction worked. The federal presence prevented state and local officials in the former Confederate states from denying blacks the right to vote, barring them from holding public office, or consigning ex-slaves to indentured servitude. The troops also helped prevent mob violence and lynching, although both still happened.

But the disputed presidential election of 1876 put an end to all of that. No candidate won a majority of electoral votes, so the election was decided by a backroom deal between Republican and Democratic leaders. Republican Rutherford B. Hayes emerged as the president-elect in a deal that required him to pull federal troops out of the South, effectively ending Reconstruction. The Compromise of 1877 brought in a new era of mob violence, systematic discrimination, segregation, and general second-class status for blacks that endured for the next eighty years – essentially until the civil rights movement started accumulating victories in the midtwentieth century.

A little over a year after Hayes took office, Kentucky representative J. Proctor Knott introduced an amendment to an Army appropriations bill to bar the enlistment of federal troops for law enforcement purposes without authorization from Congress or the president. Knott’s aim was modest: he simply wanted to repeal the Cushing Doctrine. The amendment to the law, which became known as the Posse Comitatus Act, reads:

From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.

The law’s main effect was exactly what Knott intended. It nullified the Cushing Doctrine. US marshals could no longer call up US troops to help them enforce federal law unless they obtained authorization from the president. Some historians and scholars have claimed that the Posse Comitatus Act was fallout from the Compromise of 1877 and that the true aim of its supporters was to repeal Reconstruction. The suggestion is that the law is tainted by racism and sympathy for the Confederacy. There’s some truth to that. The law certainly made it more difficult to enforce Reconstruction.

But Reconstruction was already on the way out. It had lost support in the North. Hayes – a Republican – had even promised to end it during his campaign. And the law actually ended a policy that had been created to catch fugitive slaves. (It’s an unfortunate commentary on the plight of freed blacks at the time that they could be made worse off by a new policy, then made worse off still by its repeal.)

Reconstruction was a necessary policy, and it was probably necessary to use troops to enforce it. But it was a once-in-American-history sort of crisis. The deployments were authorized by acts of Congress. The Fourteenth Amendment required the federal government to protect the rights of black Americans in the South, and it seems clear that a few hundred federal marshals weren’t sufficient for the job. Reconstruction set a new bar for military involvement in domestic affairs, but there’s been nothing like it since. After federal troops were pulled out of the South, the domestic deployment of US troops mostly reverted back to limited situations like large-scale riots and violent insurrections.[39]

The term posse comitatus traditionally referred to the population of able-bodied men from which a posse could be drawn. Today both the term and the law have come to represent much more than the text in Knott’s amendment indicates. The law itself is now commonly misunderstood to bar the president or Congress from using the military to enforce federal or state law. That isn’t quite correct. The law only prevents domestic law enforcement officials from using the military to enforce the law without authority from the president or Congress. It puts no restrictions on the Congress or the president. But more broadly, the term posse comitatus has become a signal for the principles behind the Symbolic Third Amendment. It’s often used today to indicate our traditional aversion to putting soldiers in the streets. Regardless of the origins of the term, the sentiment behind it has persisted – often in spite of the best efforts of elected officials. More comforting, one institution that has held the principle in especially high regard is the military itself, although here too there have been a few exceptions.

In the nineteenth century, as America was sorting out when and how and under what conditions the military could be deployed domestically, the country was also growing. By the 1830s, US cities were swelling and becoming more diverse. Predatory crime was increasingly a problem. The country needed new ideas and new institutions for maintaining day–to–day order – institutions that could be scaled to accommodate growing urbanization. Once again the country would look to England for inspiration.


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