The Third Amendment
By Scott Sumner
You don’t hear people discuss the 3rd Amendment to the US Constitution as often as some of the other amendments:
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.
Obviously, the intent was to prevent the government from requiring property owners to house people that they don’t wish to provide shelter to. In those days, no one could have envisioned governments forcing people to house ordinary citizens; the problem was the forcible quartering of soldiers. (BTW, the British government didn’t typically force their soldiers to be housed in occupied homes; rather they forced property owners to house soldiers in commercial property, barns, inns, etc.)
The Supreme Court recently invalidated an eviction moratorium that effectively forced homeowners to provide housing to people that were not paying rent. (Some of those people were presumably soldiers.)
Jacob Sullum at Reason points out that the reasoning behind the CDC’s regulation would have allowed for an almost unlimited control over our lives:
If the CDC’s understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for “essential” purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium. And it could do any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.
Where does the CDC think it gets this limitless discretion? The Public Health Service Act, which Congress approved in 1944, says “the Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
This is one reason why the Constitution is so important. Congress is not authorized to pass regulations that violate the Constitution. Of course it’s not enough to have a constitution, you also need to be willing to enforce the protections it provides. New Zealand’s Bill of Rights (they don’t have a formal constitution like ours) provides for freedom of assembly, but the government recently suspended that right:
New Zealand police said officers were on Queen Street on Friday after hearing a protest was being planned, but only one person arrived with the intention of protesting, Newshub reported.
“Police have been in the area and have spoken to one person who arrived intending to attend the protest. Police spoke to the individual who was encouraged to comply with alert level four restrictions and chose to leave,” a spokesman said.