by Eric Rassbach

The Third Amendment serves as something of an ideological Rorschach test. In most areas of constitutional law—long notorious as an “inexact science”—scholarly and judicial interpreters are still constrained by precedent and those scholars’ and judges’ interests in pushing those precedents in the direction of desired outcomes. For example, in treating a Fourth Amendment question, a scholar cannot ignore the idea of “reasonable expectation of privacy,” even if she were convinced that it is not something that rightfully makes up a part of Fourth Amendment jurisprudence. Indeed, to maintain credibility within the terms of the debate, an untenured scholar might decide not to voice her disagreement with the “reasonable expectation of privacy” at all. Similarly, no judge or scholar dealing with the Establishment Clause today can ignore Lemon v. Kurtzman, even if they think it terribly wrong-headed; Lemon sets part of the terms of the debate. Put another way, a scholar or judge interpreting most provisions of the Bill of Rights does not write on a blank slate.

But the Third Amendment is a blank slate, at least when it comes to precedent. Because the Amendment sees so little use in the courts, and there is thus almost no precedent to interpret, the Third Amendment is more likely than the other amendments to disclose the interpreter’s starting ideological assumptions, conscious or unconscious. One might, therefore, expect a libertarian who is generally concerned about government or military intrusion into individuals’ private space to give the Third Amendment a broad interpretation—applying “Soldier” to many different kinds of government agents, interpreting “time of peace” to include all situations short of an officially-declared war, and the like. By contrast, a scholar with a strong interest in protecting national security might read those words much more narrowly.

If this is true, then no one will be surprised that when the Rorschach test is applied to me—a lawyer who advocates on behalf of religious organizations and people—I conclude that yes, houses of worship are “house[s]” under the Third Amendment. Churches, synagogues, and mosques will all have an interest in sharing Third Amendment rights against government officials (to the extent that those rights are actionable), rather than seeing them restricted to “houses” owned by individual citizens.

Yet I would ask the reader to subtract any argumentum ad hominem lurking in the reader’s subconscious and consider why such an interpretation is not only on balance correct, but compelling. The answer lies, I would suggest, in the history of quartering in houses of worship prior to adoption of the Third Amendment and in the history of the use of the word “house” at the time the Third Amendment was adopted. As I set forth below, there was a long history of quartering soldiers in houses of worship and specifically as a method of resolving religious disputes. In addition, the meaning of the word “house” at the time the Bill of Rights was adopted presumptively included houses of worship. With no contrary evidence showing that the Founders believed that the term “houses” did not comprehend all kinds of “houses,” the best conclusion is that the owners of houses of worship should be able to make out claims under the Third Amendment on the same terms as the owners of residential “houses.”

 

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