The Quartering Test

A few days ago, I wondered about whether our military activities in Asia were “war” or something else.  Then at about four in the morning I awoke after a flash of the kind of thinking that only comes with sleep,* a test occured to me.  You’re in your house, minding your own business, when *knock!* *knock!* *knock!* on your door are two corporals in the United States Army, with gear kits and weapons.  One of them reads awkwardly from a piece of paper:

Good morning sir or madam we are from the Army.  Due to the war effort extra military personnel such as ourselves are being stationed at the bases nearby and there are insufficient housing facilities on base.  Therefore civilians such as yourself have been ordered to quarter two troops each and the President has authorized the local base commanders to select homes to provide room and board for these personnel.  Your home has been selected and you will be compensated at the rate established by law.  Here are the authorization orders for you to inspect in which my commander has selected your home as a supplemental military housing facility.

The young corporal, obviously embarrassed, presents you with a document signed by a one-star general, containing a reference to some recent Executive Order.  It all has an official look to it.  So your choices are to:

  1. Let the soldiers in to your house, show them where the extra towels are, and make a large batch of tomato soup for them for dinner, or
  2. Tell them to go away, because this is your house, damnit, and finding room and board for soldiers awaiting deployment is the military’s burden and not yours.

Of course, the soldiers tell you you have no choice, and you sue the government to keep the soldiers out of your home.  Do you win?  The Third Amendment to the U.S. Constitution reads as follows:

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.

If we’re at war, you’re stuck with option 1 and presenting the base commander with a bill for the rent after the fact.  So — if this happened to you, on December 9, 2009, would you have to admit the soldiers?  My sense of the matter is no.  Even if we assume prior Congressional and Presidential authorization for this sort of thing (which does not exist in the real world) the “state of war” in which our nation is in is not of such a nature that this sort of thing is a reasonable exercise of governmental power.  An on-base housing shortage cannot legally be addressed this way.  Ergo, we are not in a “time of war” for Third Amendment purposes.

I don’t have any legal authority for that.  I don’t know that any exists.  To my knowledge, Congress has never, in the two and a quarter centuries since the Revolutionary War came to an end, even entertained the idea of quartering troops in private residences and no President would be foolish enough to issue such a politically unpopular order absent truly awful circumstances like Red Dawn, where enemy troops actually in possession of territory within the lower 48 states — in which case the question whether we were “at war” or not would be too obvious to bother addressing.

So are we in a state of war or not?  Absent a formal declaration of war by Congress, one way we can tell is if it seems reasonable to quarter soldiers in private residences. It would obviously be unreasonable in today’s circumstances, so that suggests we are not in a state of war as that term is defined by the Constitution.

* It’s true, I actually do dream about this stuff.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. This is brilliant. A few years ago I encountered a couple marines in a Long Island hotel bar. They were talking about how we are 'at war' and my reaction was to say 'we are??', and they thought I was a bit of a jerk for saying it that way. I don't know where the line between 'war' and 'foreign military operations' lie, but your Quartering Test theory is a good place to start.

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