A Protection Against Viruses Hides in an Overlooked Corner of the Constitution

A Protection Against Viruses Hides in an Overlooked Corner of the Constitution

Shutterstock / The Atlantic 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. […]

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