by Radley Balko
Otis invoked natural rights, the Magna Carta, and the Castle Doctrine.
Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.
As expected, Otis lost in court. But his speech likely changed the course of history. One member of the courtroom audience that afternoon was John Adams, a twenty-five-year-old lawyer who would become the second president of the United States of America. Later in his life, Adams recalled the impact that Otis’s speech had on him. He praised Otis’s grasp of history and fiery defense of the rights of man and pointed out that, quite ahead of his time, Otis even declared that black men should be afforded the same rights as white men, including the right to own property. Adams credited Otis and his diatribe against British warrant abuses as the first knocks of the American Revolution. “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote. “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born.”9
Writs of assistance and the customs bureaus that carried them out would be among the specific complaints that the signers of the Declaration of Independence laid out against King George III on July 4, 1776: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” In 1791 the Castle Doctrine was enshrined in the US Constitution when the Fourth Amendment was ratified with the rest of the Bill of Rights. The Fourth Amendment prohibits general warrants at the federal level (the prohibition would later be extended to the states through the Fourteenth Amendment) by requiring that warrants not be issued without reason and probable cause, that they be sworn with an oath and affirmation, and that they include particular information about the place to be searched and the person and items to be seized.
But the Fourth Amendment was just one part of a larger, ongoing debate about how to police and defend the security of a free society. The country was young, untested, and unstable, and it faced hostile threats, both internal and external. Those threats would test early America’s devotion to individual rights and the Enlightenment principles that had animated the fight for independence.
CHAPTER 2
SOLDIERS IN THE STREETS
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.1 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.2
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.3 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.4
Protest erupted throughout the colonies, both in the streets and in the legislatures.5 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 pu
t 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.6
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.7 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.8 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.9
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.10
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.11
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.12 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.13