For the past couple of weeks, the philosophy of judicial originalism has gotten a lot of attention in the press thanks to Judge Amy Coney Barrett, though most of her critics have been intentionally obtuse about what that philosophy actually entails. Senator Dick Durbin, for example, seems to believe that under an originalist point of view, the Second Amendment only protects your right to own a musket, as opposed to modern day arms.
Durbin and other Democrats aren’t only misrepresenting originalism, but they’re embracing a view that the Constitution “lives and breathes” and changes based on our own interpretations, even if the text stays the same. In their view, the Second Amendment is now a dead letter that doesn’t actually protect against government infringement on the right to keep and bear arms at all.
This idea of an ever-changing Constitution has been taken to absurd lengths with a new column by Yale University doctoral student Alexander Zhang, who writes at The Atlantic that the Third Amendment is no longer about prohibiting the government from quartering troops in private homes, but could instead be used as a pretext to establish the right to be free from disease.
“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.”
Zhang bases his argument on the idea that the Founders weren’t just concerned about the invasion of privacy and loss of property rights that would come with troops being quartered in private homes, but also the spread of smallpox. He doesn’t actually have much evidence that infection was a primary or even tertiary driver of the ratification of the Third Amendment, but ultimately that doesn’t matter. We should simply interpret the amendment to mean something completely different than what it actually says.
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.
This is an utterly absurd view of the Constitution, and it renders the original meaning of virtually every one of our Constitutional rights null and void, or at least subject to the whims of a legislative majority. A judicial philosophy that finds room for mask mandates in the Third Amendment while placing the most commonly sold rifle in America outside the scope of the Second Amendment isn’t a philosophy based on the law at all. It’s simply a power grab at the expense of our individual rights, and it has no place in our nation’s courts.