Third Amendment Penumbras: Some Preliminary Observations

by Glenn Harlan Reynolds

The Bill of Rights may be facing its Frederick Jackson Turner moment, the day when its last frontier is being settled and cultivated. Previously neglected parts of the Bill of Rights—the Ninth Amendment, the Tenth Amendment, even the Second Amendment—are no longer uncharted. And now, with this Symposium, the last neglected amendment, the Third Amendment, already lightly explored, is seeing the first small settlements spring up.

The questions raised elsewhere in this issue are worthy, and their answers important, but my own contribution, such as it is, is inspired by the famous words of Leon Lipson, as reported by Arthur Allen Leff: “Anything you can do, I can do meta.” So while others address the metes and bounds of the Third Amendment itself, I intend to address a different question: Does the Third Amendment cast penumbras? And, if so, what terrain do they shadow? And do those shadows shed any light (mixed metaphor though that might be) on other constitutional questions?

 

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