The Textualist Third Amendment

by Michael A. Cottone

The Third Amendment must mean something. Seriously. If recent decisions teach anything, it is that the Constitution, and especially the Bill of Rights, contains very few dead letters. Reexamination of constitutional text, whether through a different interpretive scheme or in the context of new and unanticipated factual scenarios, can breathe new life into seemingly outdated or irrelevant provisions. The sea change in Second Amendment jurisprudence provides the prime example of this phenomenon. What to many looked like a protection of “state‑organized militias” a decade ago now has been reborn as a relatively strong guarantee of individual liberty.

What precisely the Third Amendment means is a more elusive question, but the answer lies in its text. Its language is clearer than most constitutional provisions, eschewing abstract terms in favor of comparatively definite language:

No Soldier 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.

For the remainder of the piece, I will focus on this text. Specifically, I will discuss how judges and other decision-makers may be expected to interact with the language of the amendment. The relative value of text and precedent has been a long-running debate in constitutional law. When it comes to the Third Amendment, though, the problem of precedent is minimal; quartering questions rarely arise. Very few decisions have interpreted the amendment, and when courts rely on it, they typically do so to support an overarching principle related to privacy or the home. The upshot of this relative lack of precedent is that the amendment can illustrate what work constitutional text, acting alone, can accomplish. Even if quartering questions never become more significant, examining the limits of what the text itself can achieve is important because it may shed light on the limits of the text of other provisions.

To this end, I attempt to describe the questions that the amendment’s language provides clear answers for. In doing so, I apply two “flavors” of textualism. In Part I, I use what has sometimes been called “strict textualism.” That is, I examine which Third Amendment questions we can answer before engaging in a sophisticated interpretive process. In Part II, I take a contextual or “intratextual” approach that looks to the text of different constitutional provisions to resolve ambiguities. In both, I focus especially on the ability of the constitutional text, acting alone, to constrain judicial choice. Other interpretive theories—such as originalism, framework originalism, and purposivism—are not discussed. This is not a comment on these theories’ merits, but rather a recognition that they address questions the text itself resolve. I conclude in Part III by looking back to see what the Third Amendment can show us about the limits of text in constitutional interpretation.

 

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