The Third Amendment is one of the most overlooked amendments to the Constitution. Unlike the previous series of articles concerning the Second Amendment, the technical wording of the Third Amendment does not seem on its face to be being actively violated by any governmental institution in our day. Most people would think, perhaps rightly so, that the Third Amendment is irrelevant and superfluous to the Constitutional order because it has not been violated since its ratification except in minor incidences which have been quickly redressed by the courts. Though it is true that the Third Amendment speaks properly to the physical quartering of troops in privately owned buildings, the purpose of the Third Amendment and what kinds of governmental excesses it was designed to avoid are more interesting to its actual application in the 21st century.
The Third Amendment reads: “No Soldier shall, in time of peace be quartered in any house, nor in time of war, but in a manner to be prescribed by law.”
On its face, the amendment is meant to prevent the government, acting through its agents in the military, from establishing troops in houses of any kind in times of peace without the explicit consent of the owner for the government to do so. In times of war, troops may be placed into houses (houses of worship, public houses, private homes, etc.,) without the consent of the owner, but it must only be done so in a manner consistent with the restrictions placed upon such activity by Congress. The limits are narrow. In order for a soldier to be placed into a house of any kind, there must first be a declaration of war made by Congress, and then there may be a pretext for the government to quarter troops in a house for any number of purposes; be they simply to shelter from the elements, to guard certain valuable persons or assets, or to keep a watchful eye upon and discourage revolutionaries and the like.
The Framers included this amendment in the Bill of Rights because the Bill of Rights acts as a sort of photographic negative to the abuses suffered by the colonists to the Rights of Englishmen by the King and Parliament. Anywhere there is a prohibition placed on the government through one of the original 10 amendments, there is a historical precedent of at that time English governmental abuse. The founders wished to head off those and many other possible abuses that a tyrannical government could be counted on to impose.
In the case of the third amendment, the precedent is commonly said to be the fact that British soldiers were quartered in American homes throughout the revolutionary war. This is true enough, particularly in the case of occupied Boston. But the interesting thing about this practice is why an occupying force might want to place its soldiers among a hostile population in the first place if it was simply to provide for their shelter? Wouldn’t there be safer boarding options for the troopers than living amongst angry cutthroats their king sent them to suppress?
The answer to that question is simply that the practice of quartering troops in private homes was not to keep those poor under paid soldiers out of the wind and rain. Nor was it because the government in those days practiced good economy. No, the whole reason soldiers were placed by the government into private homes was for the simple reason that the owners of said homes were being kept an eye on: being policed in the modern sense of the word.
In his article written for the American Conservative, John Payne points out how the residents of occupied colonial Boston chaffed under the previously unknown tyranny of law enforcement officers running about enforcing the “law,” which was actually a series of bureaucratic edicts issued by a foreign government attempting to prop up their failing East India Company (Parliament’s personal monopoly on colonial trade).
“Journalist Radley Balko has been documenting this phenomenon for nearly a decade, and in Rise of the Warrior Cop he explains how America has been transformed into a country where police conduct something on the order of 50,000 SWAT raids a year.
Balko starts with the provocative proposition that police as we know them in modern America are unconstitutional. “The Founders and their contemporaries would probably have seen even the early-nineteenth-century police forces as a standing army, and a particularly odious one at that,” Balko writes. “Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was the England’s decision to use the troops for everyday law enforcement.”
Balko links that decision to the oft forgotten Third Amendment, which forbids the quartering of troops in Americans’ homes against their will during peacetime. The Third Amendment is rarely litigated, and the Supreme Court has never heard a case primarily concerning it, but Balko argues that it was included in the Bill of Rights out of a larger concern that a standing army could be used for the purposes of enforcing the law. “The actual quartering of British troops in the private homes of colonists was rare…It was the predictable fallout from positioning soldiers trained for warfare on city streets, among the civilian populace, and using them to enforce law and maintain order that enraged colonists.”
The idea that the founding fathers would have been against traffic stops for people riding their horse recklessly or that they would have wanted dozens of armed government officers to be waiting at a surprise checkpoint on the post road outside of the village tavern on a Friday night may not cross most legal scholars minds as a viable objection to the current system of law enforcement. However, when one takes into account that the founders were totally opposed to large bodies of armed government employees, regardless of what they called themselves (police, agents, or soldiers), being an institution at all, one is faced with the seemingly obvious issue of how the laws of the land were to be enforced?
Unfortunately, the jurisprudence does not exist at the level of the Supreme Court due to the fact that what we understand as the basis of modern law enforcement, the supposedly inherent “police powers of the state,” is actually a very recent construct and did not exist during the time of the founding. Nor had it ever existed before the time of the founding in either the American colonies or the mother country of England. In a common law jurisdiction, that is an incredibly important fact the understand.
The question then that logically follows this revelations is, what exactly is this police power that we hear invoked so frequently as if it were a self-evident truth of the very fabric of our nation?
The Cornell Law website states that “Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power. Berman v. Parker, a 1954 U.S. Supreme Court case, stated that “[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power”; while recognizing that “[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.”
This indeed is a broad definition and if veracious would imply a limitless power granted to the government by a supposedly free people. This definition is problematic though if not for its lack of any real determinate limits placed on the power of the state to coerce the citizenry in general, but for the similar obligations assumed by a people who purport to govern themselves. Aside from the fact that if indeed public safety, health, morality, peace and quiet, law and order are some of the areas that the citizenry requires general coercion in, then one has very little room left for any semblance of real self-governing. However, one need only look at the inverse of each of the listed goods of governmental coercion in practice today to see how bad an idea it is to give that responsibility to the government at all.
It would also seem out of character for a new nation, founded on the basis of individual responsibility before God, to also grant the state unlimited power in the areas of public morality. Admittedly, the Constitution of the United States is just the Constitution for the general government and not for the states themselves; they each having a constitution for the powers not delegated to the federated government. The question is though, if the purported police power referred to is found in the Constitution or the superstructure of inherent rights and obligations which provided the at-the-time foundation of liberty, then where exactly does it appear?
The same article goes on to say: “The division of police power in the United States is delineated in the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is, in the United States, the federal government does not hold a general police power but may only act where the Constitution enumerates a power. It is the states, then, who hold the general police power. This is a central tenet to the system of federalism, which the U.S. Constitution embodies.”
Leaving aside the post Civil War doctrine of incorporation (that is, the Bill of Rights applies to the States and Federal governments simultaneously) if individuals have a Third Amendment right, how could that square with the institution of a standing body of professional troops tasked with enforcing the law?
If the institution of a police force is unconstitutional, it would be a clever end run around the Constitution to say that because the Tenth Amendment, a high and noble annunciation of the inherent rights of states, precludes the federated government from assuming undelegated powers, thus the states are unlimited in their ability to coerce their citizenry in whatever way they define as the public good. It would serve as a sinister double entendre to then justify the use of armed troopers to enforce this public good at the expense of liberty all for the sake of respecting federalism. Surely the founders and framers couldn’t have been so blind to the potential for misplaced power that they would at once severely restrict the general government while at once acknowledging the unlimited power of the states in which they lived. That wouldn’t make sense.
Yet, as is evidenced by the writings of the founders themselves, they did indeed have a solution to this potential quagmire of a federal system which at once acknowledged a severely limited central government while recognizing a series of tyrannical state governments existing under the color of freedom. That solution was found, as it is to this day, in the very same rights which the revolution was fought to secure: the rights of Englishmen.
William Blackstone, aside from being the foremost scholar of the English common law at the time of the founding, was an ardent proponent and proud inheritor of all the rights of Englishmen which he enjoyed as his political alimony in the “land of liberty.” His Commentaries on the Laws of England are routinely used as a source of constitutional interpretation in American jurisprudence as well as being cited as precedential legal commentary from the founding to this day. According to Blackstone, the solution to a tyrannical government having the kind of “police power” described above was to be found in the office of an elected magistrate responsible for apprehending felons, murderers and the like. That magistrate was called a sheriff.
“The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the bailiff or officer of the shire. He is called in Latin vice-comes, as being the deputy of the earl or comes; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. But the earls in the process of time, by reason of their high employments and attendance on the king’s person, not being able to transact the the business of the county, were delivered of that burden; reserving to themselves the honour, but the labour was laid on the sheriff. So that now the sheriff does all the king’s business in the county; and though he still be called vice-comes, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing custodium comitatus (the custody of the county) to him and him alone.”1
Blackstone goes on to say:
“Sheriffs were formerly chosen by the inhabitants of the several counties the confirmation of which it was ordained by statute 28 Edw.I. c. 8. that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. . . The reason of these popular elections is assigned in the same statute. c, 13. “that the commons might chuse such as would not be a burthen to them.” And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates.”2
Finally, Blackstone goes on to detail the actual power of the sheriff and his function in a free society, saying:
“As the keeper of the king’s peace, both by common law and special commission, he is the first man in the county, superior in rank to any nobleman therein, during his office. he may apprehend, and commit to prison, all persons who break the peace, or attempt to break it; and my bind any one in a recognizance to keep the king’s peace. he may, and is bound ex officio (by virtue of his office) to, pursue and take all traitors, murders, felons, and misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king’s enemies when they come into the land; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprisonment.”3
The sheriff was allowed to commission a single deputy called “under sheriff” for the expediency of the performance of his duties. But even this officer was only allowed to serve a single year term. This allowed for a frequent rotation of the individuals in the community who assisted in this great power while preventing the establishment of a gang mentality by the deputies. Thus according to the foremost contemporary scholar of the very law that the founding fathers were fighting in defense of for themselves and their posterity, the sheriff was the highest officer of the law responsible for keeping the peace and when necessary for apprehending criminals or organizing the public defense by invoking the power of the county. Critically. Blackstone notes that the consent of those under the authority of the sheriff is not only necessary for him to attain such authority, but that it is a mark of the “democratical” nature of the English, and by extension the American, people.
The English system of law being planted in North America, becoming the dominant legal system within the federal union of states, the sheriff was and still is an integral component of freedom. He by virtue of his office, unlike the contemporary idea of a police force, is free from the apparatus of the bureaucratic state. His institutional freedom was intentionally designed to preserve the freedom of the people and to also ensure that those who were tasked with keeping the peace came from the people themselves and would not prove to be a burden to them.
The interesting thing is, that all the police powers of the state referred to so confidently by the Supreme Court are found not in any philosophical extrapolation of the purpose of state authority, but are placed squarely with the people of the county and their elected magistrate, the sheriff. One will search in vain for any articulation of this power in the writings of the founders or of their English co-jurists across the Atlantic for an explanation of the apparent “police powers of the state.” Neither will one find in the former’s writings any justification for large groups of armed men apart from the common man being tasked with , traffic stops, and SWAT raids.
The fact is, there is no precedent for our contemporary police forces in the common law tradition or literature. All of the literature from the founding era points to one extremely important reality for our own time: the common law does not permit or grant the state the power to establish a police force. The law requires every able-bodied male citizen over the age of fifteen to act as his own police officer in governing himself and when necessary, to assist the sheriff in the exercise of his law enforcement duties.
There is ample evidence outside of Blackstone to back this claim up. One of the most interesting pieces of this evidence is found in the legal dictionary of Giles Jacob (1686-1744). His dictionary, which happened to be the most widely used legal dictionary at the time of the founding in America, defines the legal term posse comitatus as such:
“The Power of the County. According to Lombard, contains the Aid and Attendance of all Knights, Gentlemen, Yeomen, Labourers, Servants, Apprentices, and other young Men above the Age of Fifteen, within the County; because all of that Age are bound to have Harness, by the Statute of Winchester . . . Persons able to travel being required to be assistant in this Service; which is used where a Riot is committed, a Possession is kept upon a Forcible Entry, or any Force or Rescue contrary to the Commandment of the King’s Writ, or in Opposition to the Execution of Justice (a fugitive apprehension).
If there is any ambiguity about the application of the posse comitatus, Giles goes on to describe the legal justification and rights of those so bound, writing:
“Sheriffs of Counties are to be assisting Justices of the Peace in suppressing of Riots, & c. and raise the Posse Comitatus, by charging any Number of Men to attend for that Purpose, who may take with them such Weapons as shall be necessary to enable them to do it; and they may justify the Beating, Wounding, and even Killing of such Rioters as shall resist, or refuse to surrender themselves; and persons refusing.”
This definition of posse comitatus being the one in common use at the time of the founding, there is no room for misunderstanding the intent of the founders or the framers of the constitution. The oft cited police power of the state is to be found exclusively in the exercise of the posse comitatus under the authority of the people’s elected sheriff, and no other entity.
That this was the understanding of the founding fathers (a more honest generation than our own) is evidenced by historical fact. This author has not been able to locate even the definition of the word “police” in any of the common legal dictionaries of that time. In fact, the only use of the word during the federal convention, in James Madison’s notes, is to refer to the smooth exercise of the delegated responsibilities of the government; not to run useless community outreach programs, initiate deadly traffic stops, or kick down the doors of people the bureaucratic state doesn’t like. Moreover, the fact that all the societal functions now attributed to the police were entirely performed by the posse comitatus in every state and city in the Union until 1845 (the year NYPD was established) should be evidence enough that the founding generation would not have recognized the modern usurpation of our freedom.
The Second and Third Amendments in the Bill of Rights, when taken together, provide a statutory firewall against the ability of the Federal Government to establish either a standing army in times of peace or what is commonly called law enforcement agencies. Neither of these institutions are American because neither of them are part of our English inheritance of the common law and they both are institutions inimical to freedom. Free people are people who govern themselves. They do not wait for the edicts of the bureaucratic state and its many armed agents to tell them how to live their lives.
Free people are free because of the great number of responsibilities they carry on their shoulders. And the American people will not be free again until they shoulder the responsibility of governing themselves in their moral lives, protecting their neighbors, and participating in their own governments as an act of service; not for power, remunerative gain, or grift. The Third Amendment is just one more piece of our heritage waiting for us to reclaim for ourselves and our posterity.
- William Blackstone, Commentaries on the Laws of England: Book 1, Of the Rights of Persons. Oxford University Press: Oxford, United Kingdom, 2016. pp 217-18.
- Ibid. 218
- Ibid. 220
In Defense of Man 