The Forgotten Third Amendment Could Give Pandemic-Struck America a Way ForwardRoundup
tags: Bill of Rights, Constitution, public health, COVID-19, Third Amendment
ALEXANDER ZHANG is a J.D./Ph.D. student in law and history at Yale University.
Ever since state governors began implementing stay-at-home orders to contain the coronavirus pandemic, protesters have resisted such safety measures under the belief that they violate constitutionally guaranteed liberties. Proposals to mandate mask wearing have collided with allegations of First Amendment violations. Orders to close gun stores have clashed with concerns about Second Amendment freedoms. But a profound historical counter-vision to these ideas about “individual liberty” can be found in one of the most neglected and underappreciated corners of the Bill of Rights: the Third Amendment.
“No soldier,” the amendment reads, “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.” Federal courts have rarely invoked it, and in 2015 even rejected a Third Amendment claim against police officers’ occupation of a house. Now the subject of memes, the amendment, in the words of the legal historian Morton Horwitz, is an “interesting study in constitutional obsolescence.”
But surrendering to this senescence is a mistake. The Third Amendment might actually breathe new, constitutional life into what Ibram X. Kendi has labeled “freedom from infection.”
The Third Amendment is a remix of ideas dating back to the 11th and 12th centuries. As the lawyers William S. Fields and David T. Hardy wrote in the American Journal of Legal History, centuries of criticism against quartering had accrued in Britain before gaining traction in the empire’s colonies. After conflicts in North America, including King Philip’s War in the 1670s, New York in 1683 became the first of the colonies to provide legal protections against quartering. In the next century, colonists opposed to quartering would come to feel a desire to separate civilian life from military intrusion, a growing sense that the home was a protected private place, a hatred of standing armies, and a commitment to individual rights.
But another complaint also surfaced during the French and Indian War, which lasted from 1754 to 1763: Colonists worried that quartered soldiers might infect them with smallpox, a disease British soldiers deliberately transmitted to Native Americans.
The eventual Framers of the Constitution understood this fear. George Washington had battled smallpox himself in Barbados in 1751. The mother of Charles Cotesworth Pinckney, another signer of the Constitution, wrote of her community in 1760 that a “violent kind of smallpox rages in Charles Town that almost puts a stop to all business.” James Madison never contracted the disease, but as suggested by the Madison biographer Ralph Ketcham, a number of his extended family members likely died from smallpox in the early 1760s, when he was just a boy.
No wonder colonists fretted about the arrival of British troops. When residents of Albany, New York, learned in 1756 that some of the soldiers were carrying smallpox, they grew hostile to quartering. Soldiers arrived in Philadelphia to similar fears. In the words of one Pennsylvanian, “The small Pox was encreasing among the Soldiers to such a Degree that the whole Town would soon become a Hospital.” The governor ordered private homes to be used as quarters, and after resistance from shocked residents and the Pennsylvania Assembly, the British threatened to send soldiers to seize shelter. In response, an assembly committee that included Benjamin Franklin offered hospital space to house sick soldiers, sparing Philadelphians from the disease. Others weren’t so lucky. In 1758, Jane Webb Syer from Perth Amboy, New Jersey, was making a living by renting her house to a family, but British soldiers with smallpox transformed the house into a hospital. They ripped up her floors and doors for firewood; her tenants ran away.