The Forgotten Third Amendment Could Give Pandemic-Struck America a Way Forward

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.

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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.

Britain soon enacted two quartering laws. The Quartering Act of 1765 required colonists to pay the costs of housing soldiers, a measure that peeved Franklin. England, he argued, should “first try the effects of quartering soldiers on butchers, bakers, or other private houses [in England], and then transport the measure to America.” Britain then passed the Quartering Act of 1774, allowing officers to take “uninhabited houses, out-houses, barns, or other buildings.” The Declaration of Independence soon denounced British legislation “quartering large bodies of armed troops among us,” and places such as Maryland, Massachusetts, and New Hampshire transformed this complaint into law within the next decade.

The Revolutionary War brewed in the background, but smallpox was still a peril to soldiers. As the University of Colorado at Boulder historian Elizabeth Fenn has written, “Contagion was the defining and determining event of the era for many residents,” and with “the exception of the war itself, epidemic smallpox was the greatest upheaval to afflict the continent in these years.” Smallpox could freeze a regiment in its tracks. “Our army at Ticonderoga,” wrote the Continental Congress delegate, future Supreme Court justice, and quartering critic Samuel Chase, “consists of six thousand men, of which three thousand are in the hospital, from the small-pox and other camp disorders.” Would-be soldiers hesitated to join the army, and Virginia Governor Patrick Henry explained to Washington that the dread of smallpox was one of the obstacles. Washington understood, responding that smallpox was “more destructive to an army in the natural way, than the enemy’s sword.”

The quartering of sick troops forced civilians to come into intimate contact with disease. Soldiers sometimes paid to stay in private homes instead of hospitals, but they weren’t always welcome. One man complained that soldiers had whipped his children, killed his animals, and deprived “his wife of her Bed by plasing in one of their party whome they said was sick.” In 1777, catastrophe struck when Washington billeted soldiers in the private homes of Morristown, New Jersey. Some homeowners originally volunteered their houses, but an outbreak of smallpox among the soldiers threw the town into a flurry. Washington had to order not only his soldiers but also civilians to receive inoculations. Churches transformed into hospitals, and private homes became inoculation sites, further endangering residents. That year, a bell in the steeple of Morristown’s Presbyterian church rang dozens of times to mark the many residents’ lives lost to smallpox.

A decade later, the nation’s Founders spoke only broadly about the Third Amendment’s necessity, but they had been entangled in this history of disease and likely understood its relevance. Franklin and Washington would go on to sign the Constitution, and during the ratification process, Anti-Federalists would invoke the possibility of quartering to oppose a strong centralized government. One of these people was Chase, who had described smallpox among soldiers in Ticonderoga and now fretted that “Congress will have a right to quarter soldiers in our private houses not only in time of war, but also in time of peace.” This power, criticized former Governor Patrick Henry at the Virginia Ratifying Convention, in 1788, would be akin to Britain’s quartering of a standing army “to tyrannize, oppress, and crush us.” Madison soon proposed a Bill of Rights that included a provision against quartering, and Congress approved a version that became the Third Amendment.

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The final text does not mention disease, but the text of the amendment has not been an impediment to expansive (albeit controversial) interpretations in other regards. In 1965, the Court, in Griswold v. Connecticut, cited the amendment to find an implied constitutional right to privacy, and similar reasoning could be used again. Yet if the Third Amendment may have something to do with a right to be free from infection, what exactly is that right? Construed most narrowly, the amendment might merely imply a right to be free from having a specific category of people who might carry diseases forcibly pushed into one’s house without consent. But broader interpretations are possible. The amendment could be interpreted to include other governmental actors, and house could be understood expansively. The broadest interpretation might recognize a general right to be free from being forced to come into close contact with diseases. Since the Founders’ world looked tremendously different from our world today, the question is where to draw the line: how much to limit the amendment to a narrow interpretation of its text and how much to prioritize the broader rationales at its foundation.

A broad interpretation presents substantial dangers and limitations. The Supreme Court hasn’t yet decided whether the amendment applies to state and local governments. Recognition of a fundamental right to be free from forced close contact with disease vectors might shift discretion on important public-health issues from the hands of lawmakers and administrators to judges, who may be less democratically accountable or qualified to make these decisions. Perhaps too murky and open-ended to put into practice, such a right might also create a slippery slope for recognizing other “rights.” And whereas the Court in Griswold relied on multiple constitutional provisions to find an implied right to privacy, the Third Amendment on its own may not be enough to establish a right to be free from infection.

Still, even if no such right exists in an immediately useful form, the amendment’s history offers vital lessons. It reveals that disease prevention was actually built into the Constitution, furnishing judges and lawmakers today with a constitutional anchor to weigh when balancing competing societal interests. It reframes debates over shelter-in-place measures away from a battle between “individual” versus “community” freedom, illustrating how protection from disease was once understood to also secure individual liberty. Most of all, it challenges us to explore how public-health goals might have been hidden in other possible crannies of the Constitution, an urgent task in this particular, bleak year.