Friday Frivolity: Is the Third Amendment Happening?

I like to write at the intersection of contracts law and constitutional law. I’ve posted on that intersection a lot on this blog, mostly about cases where contractual rights and interests intersect with First Amendment rights of freedom of expression or free exercise. I’ve posted on this topic recently here and a year ago here. For the past few years, I’ve branched out, writing on mandatory arbitration and the Seventh Amendment right to a jury trial.

So, I am quite stoked about the possibility that actual Third Amendment claims might arise in the context of the quartering of federal agents in private hotels. Gretchen Wieners couldn’t make “fetch” happen, but maybe recent attempts to send National Guard personnel from red states into blue states can make The Third Amendment happen. The Third Amendment connection requires a bit of creative lawyering, but I don’t think it’s more of a stretch than, I don’t know, claiming that the United States has been invaded by Tren de Aragua or that the United States can justify killing people on boats in the Caribbean or the Pacific Ocean based on self defense.

Here’s the set-up: the Third Amendment provides, in relevant part, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner.” Recently, a Hilton Hotel in St. Paul shut down, citing public safety concerns. It notified its guests, including ICE agents, that refunds and assistance were available, but they would have to seek accommodations elsewhere. Earlier a Hampton Inn denied rooms to personnel from the Department of Homeland Security. Hilton responded by “remov[ing] the franchise from [its] systems,” whatever that means. The franchisee quickly caved. Now, I know, ICE agents probably aren’t soldiers. One could make arguments, but let’s simplify the hypo.

Let’s assume that the people seeking quarter are members of the national guard of a different state whom the President has federalized. They could also be regular members of the military if the President invokes the Insurrection Act, but I don’t think we need to go that far. Members of the National Guard ought to qualify as soldiers.

Let’s further assume that after a hotel refuses to provide rooms for members of the National Guard, the government seeks to force the hotel to do so. That might take the form of a court order; the Guard might just occupy the hotel by force. Either way does this implicate the Third Amendment?

I think the trickiest part here would be the word “house.” Textualists and originalists will likely claim that “house” means a private home, not a hotel owned by a corporation. But what was the Third Amendment really about? No doubt, soldiers would have stayed in hotels if hotels existed in the eighteenth century. They didn’t. There were inns, but those likely doubled as the residences of the owners, and so arguably, the Third Amendment prohibited quartering soldiers against the will of the eighteenth-century equivalent of a hotel as much as it did the quartering of soldiers in private homes.

The Supreme Court has been very willing (too willing in my view) to accord to corporate persons the same rights, including constitutional rights as natural persons. If the Third Amendment is about protecting the property rights or ordinary persons against government encroachments, then any property owner, be they a private citizen or a privately-owned business-entity, ought to be forced to house solders without their consent.