Edit to add with apologies for forgetting! This post was sent to us by Stephen L. Hall. Thank you muchly, Mr. Hall!
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As many readers of this site are well aware of my distaste and disdain for the Seventeenth Amendment, but I would like to take this opportunity to discuss one of my favorite amendments. Though, it is obvious from the title which amendment I wish to discuss. it is not one people would typically consider an important amendment.
Most people quickly dismiss the Third Amendment as a bizarre outdated anomaly which may have been important to the founding fathers but could have no meaning and relevance in a more modern world. Being so ignored, perhaps we should first take a closer look at the language and history of the amendment itself.
“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.” Third Amendment, United States Constitution.
On the one hand, this amendment can be viewed from a very literal perspective pertaining to the quartering of soldiers; on the other hand we could view it as a “living, breathing” provision opening the door for government “ownership” of housing; or on the other hand . . . oh, wait, humans, right . . . nevertheless . . . it can also be viewed as a specific application of some important abstract concepts applied to relevant concerns of day in which it was written.
To understand this provision one needs a little historical context, though that does not bode well for showing how this amendment is not outdated and antiquated. In the early colonial days, when we were part of another nation, the budgets pertaining to governance were somewhat different than we are used to in the modern era.
From the feudal days through the Napoleonic era, the major expense of government was overwhelmingly fielding and supporting an army. While national defense takes up about a fifth to a quarter of a modern nation’s budget, it was about eighty to ninety percent of the budgets of more ancient nations. Unlike modern armies with our tanks, plane, ships, missiles, satellites, and computers, the major cost of traditional armies was the personnel costs, that is to say to provide food, clothing, and shelter.
By having their soldiers commandeer room and board from citizens living in the colonies the crown was able to defer the costs of maintaining the army in the field, in this case in the frontier colonies. This practice was also the basis for at least two other provision of the Constitution requiring that taxes be apportioned among the states, upon which basis the first attempt at a national income tax was ruled unconstitutional, and the takings clause which forbade the government from just taking property without compensation.
Basically, at the time of the drafting of the Constitution, the quartering of soldiers was the primary way that the crown could create what we in modern times call an “unfunded mandate”. It was a way for the national government to order the colonies to pay for the costs of the national government.
Viewed in a proper abstract light, the Third Amendment is really a prohibition upon the federal government from throwing off the costs of executing their duties through unfunded mandates or dictates to the states or the people.
If the government is going to require that a person, a city, or a state do something, regardless of what it is, they government may only do so under and emergency condition such as a state of war, and even then that government must pay for the services rendered and the goods consumed or taken.
The government may not single out private citizens or families and tax them through the bearing of the government’s costs while their neighbors get off without such costs. Likewise, border states cannot be made to bear the cost of maintaining the nation’s defenses from invasion or illegal aliens burdening their public systems.
For example, in the modern law, however unconstitutional it may be, the states administer public welfare programs and are reimbursed by the federal government; but when massive numbers of foreigners come across an unprotected border, that state must bear the burden upon their public resources.
There is little difference in the federal government failing to secure the border from invasion than in housing their soldiers in houses along those borders at the expense of the citizens of those border states, except to whom the costs are being paid. The taxes are now paid to the invaders rather than the soldiers, but the federal government saves itself the expense of paying for their soldiers.
Had the founding fathers conceived of the phrase “unfunded mandate”, it seems certain that the Third Amendment would have been written with this broader, more abstract language to convey their meaning more clearly.
It would also have been rather difficult for the founding fathers to have conceived that the people would ever have allowed themselves to be forced into paying for the dictates of a federal government at a time when the biggest problem the nation was facing was having too weak of a central government.
At a time when the federal government was largely dependent upon the states to enforce and carry out federal laws because the federal government did not have the independent tax resources or personnel to carry out the enforcement of federal laws. With concepts in the states such as state nullification, federal overreach could easily be thwarted by the states simply not enforcing federal laws through the state’s resources.
This is pretty much the same situation we run into with states legalizing marijuana by not having their state and local police enforce federal laws within their jurisdiction or sanctuary cities refusing to spend their resources to enforce federal immigration laws.
So while the Third Amendment, with its specific language, does not actually prohibit the “unfunded mandates”, it does, more clearly than anything else in the Constitution, stand for the principle that unfunded mandates ought to be prohibited.
However the abstraction of the unfunded mandate is not the only lesson we can extract from the Third Amendment. It also illustrates the principle that all taxes must be paid by the current citizenry. Those taxes borne by the citizens whose homes were occupied by soldiers was a tax on just a segment of society.
Even borrowing money to pay for current government giveaways and entitlements is not really deferring the cost of those current government expenses, it is leveraging the wealth of those citizens. Spending down the wealth of the nation is not much different than stationing soldiers in your home to eat your food, drink your beer, and sleep in your guest room.
One could, in an abstract way, imagine that the prohibition against quartering soldiers in the houses of the citizenry, is really a prohibition against deficit spending by the government. The principles are there, if one but thinks abstractly.
