The Third Amendment says simply: “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 is one of the least litigated passages in the whole Constitution, because the government abuse that it specifically prohibits has never been one in which the United States government has indulged. Our nation has always provided barracks for its troops, instead of “billeting” them in private homes. In the late colonial era, however, billeting was a widespread problem. The British government wished to maintain its power over the colonies by means of troops but lacked either the resources or the will — perhaps both — to build garrisons capable of housing them. They, therefore, billeted them with sometimes unwilling homeowners, thereby engendering among the populace a strong distaste for the practice — a practice commonplace in Europe in the early 19th century.

One of the very few times the Third Amendment has been cited in a Supreme Court decision was in Griswold v. Connecticut, the 1965 case that announced a constitutional right of married people to use contraceptives. Whatever one may think of that holding, the use of the Third Amendment was not as absurd as first appears. The theory of the Griswold opinion was that the Third Amendment (along with the Fourth, Ninth, and Fourteenth) implied “constitutional right to privacy.”

Many legal scholars, most notably Judge Robert Bork, have disputed whether there is a separate, free-standing “right to privacy” in the Constitution. The Constitution, after all, never uses the word privacy. It is, however, generally agreed that some constitutional clauses have the protection of privacy as their underlying rationale — especially the privacy of the family home. Clearly, the Third Amendment is one of these. So is the Fourth, as we will see in the next issue.

The right against unwanted billeting is not absolute. The Framers were not trying here to create an indefeasible right valid against the entire community. They were only ruling out arbitrariness in billeting. In wartime, the community, through legislative procedures in which all citizens are fairly represented, may decide that billeting is necessary for the common good.