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THE THIRD AMENDMENT IN THE
TWENTY-FIRST CENTURY:
MILITARY RECRUITING ON PRIVATE
CAMPUSES
GEOFFREY M. WYATT∗
INTRODUCTION
Civil-military relations define one of the familiar faultlines in
American politics. Throughout history, from the Boston Massacre1 that
helped to galvanize the Colonies into revolt to the debates and protests that
raged over the Vietnam War, the question of how to situate military
authority within a democratic society has lingered without a definitive
answer. The latest chapter in this history has unfolded in a controversy
spanning more than a decade over sexual orientation and eligibility for
military service.2 That struggle has witnessed a number of battlegrounds,
most recently the halls of the nation’s universities and high schools. Nearly
all of these institutions are compelled to accept at least the occasional
presence of military recruiters if they wish to continue to receive certain
∗
1.
2.
Law clerk to the Honorable Gerald B. Tjoflat, United States Court of Appeals for the
Eleventh Circuit; J.D., 2004, Harvard Law School; B.A., 1999, Michigan State
University.
For a classic contemporaneous account of the Boston Massacre from the American
perspective, see An Account of a Late Military Massacre at Boston, or the
Consequences of Quartering Troops in a Populous Well-Regulated Town, BOSTON
GAZETTE, Mar. 12, 1770. The report was published anonymously but authorship has
been attributed to Paul Revere. The problem of defining the precise contours of the
military’s relationship to the civil power in the Anglo tradition has been a matter of
periodic legislative debate at least since the Petition of Right, authored by the British
Parliament in 1628. See generally Paul Christianson, Arguments on Billeting and
Martial Law in the Parliament of 1628, 37 HIST. J. 539 (1994).
For another modern example of civil-military tensions, see Cathy Frye, Civilian
Dragged into Randolph Court Martial, SAN ANTONIO EXPRESS-NEWS, June 19, 2005,
at 1A.
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types of federal funding. The vehicle of that compulsion is a statutory
provision known as the Solomon Amendment,3 named after its sponsor,
Gerald Solomon, a former Congressman from New York.4
Whatever receptivity these schools might show toward such an
arrangement under other circumstances, the military’s official policy of
excluding homosexuals from service5 runs afoul of a number of
antidiscrimination policies, some of which originate in the schools or their
subdivisions, others of which are supplied by state antidiscrimination and
public accommodation laws. It is this latter source that prompted
Representative Solomon to introduce his amendment to the National
Defense Authorization Act for 1995,6 whereas many of the schools that
have spoken out against the Solomon Amendment in the last year or so
have cited their own antidiscrimination policies as the basis for their
resistance to the law.7
3.
4.
5.
6.
7.
The Solomon Amendment is codified at 10 U.S.C.A. § 983(b)(1) (West 1998 & Supp.
2005). The Solomon Amendment has undergone a variety of revisions since its
adoption in 1994; many of these revisions have simply added sources of federal
funding to the list of those conditioned upon cooperation by recipient schools. See,
e.g., Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005,
Pub. L. No. 108-375, 118 Stat. 1811 (2004); Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2314 (2002); National Defense Authorization Act for Fiscal
Year 2000, Pub. L. No. 106-65, 113 Stat. 512 (1999); Omnibus Consolidated
Appropriations Act, Pub. L. No. 104-208, 110 Stat. 3009 (1997); National Defense
Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 2663 (1994).
The amount of leveraged funding is now substantial; at Harvard University, for
example, over $400 million is conditioned upon Solomon compliance. Daniel J.
Hemel, Solomon Case May Face Appeal, HARV. CRIMSON (Harvard
Univ., Cambridge, Mass.), Jan. 21, 2005, available at http://www.thecrimson.com/
article.aspx?ref=505394. The armed forces received an additional recruiting tool in
2002 with the passage of the No Child Left Behind Act. The law contains a provision
that requires high schools receiving federal funds to provide recruiters with contact
information for every student enrolled at the school. The policy does permit parents to
opt out of the program, but until recently the policy had received very little press and
as a result was not widely known. See, e.g., Stacy A. Teicher, No-fly Zones for
Military Recruiters, CHRISTIAN SCI. MONITOR, Aug. 18, 2005, at 11.
See generally 103 CONG. REC. H3860-65 (daily ed. May 23, 1994).
10 U.S.C. § 654(b) (2000). The policy is popularly known as “Don’t Ask, Don’t
Tell.” For a general background on the history of gays in the military, see RANDY
SHILTS, CONDUCT UNBECOMING: GAYS AND LESBIANS IN THE U.S. MILITARY (revised
ed., 1993).
See Doe v. Rosa, 606 N.Y.S.2d 522 (N.Y. Sup. Ct. 1993) (holding that a state
executive order proscribing discrimination on the basis of sexual orientation was
applicable to the military).
See, e.g., Statement by Elena Kagan, Dean, Harv. Law School (Nov. 30, 2004),
available at http://www.law.harvard.edu/news/2004/11/30_solomon.php (indicating
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Many schools have begun fighting the Solomon Amendment in the
courts. The present litigation strategy for these schools draws chiefly on the
doctrine of expressive association rights elaborated upon most recently in
Boy Scouts of America v. Dale.8 This stage of the dispute has thus been
fought in First Amendment terms rather than in terms of civil-military
relations expressly. The schools argue that recruiting activities by an
employer whose hiring practices violate campus antidiscrimination policies
undermine the message of inclusiveness that the schools convey to their
students through these policies.9 Just as forcing the Boy Scouts to tolerate a
gay scoutmaster in its ranks would degrade the coherency of its
institutional message about morality,10 the schools argue, so too would a
school’s antidiscrimination message be garbled by the seemingly
paradoxical presence of an employer on campus that, as a matter of policy,
discriminates against a class of individuals based on their sexuality.11
8.
9.
10.
11.
that, after a favorable ruling in a Third Circuit case, Harvard Law School resumed a
policy of excluding military recruiters that it had suspended under the threat of
withdrawn federal funding). In particular, law schools have been at the center of the
current controversy over the Solomon Amendment, pursuant to a requirement of the
American Association of Law Schools not to accommodate recruiters that
discriminate on any number of bases, including sexual orientation. See Justin Pope,
Ruling May Hinder Military Recruiting, Dec. 4, 2004, http://abcnews.go.com/
Politics/wireStory?id=302825.
530 U.S. 640 (2000). In Dale, the Supreme Court held that the Boy Scouts’s right of
expressive association was violated by enforcement of New Jersey’s public
accommodation law, which prohibited discrimination on the basis of sexual
orientation. Id. at 644. The Court held that New Jersey’s law infringed the Boy
Scouts’s expressive interest in teaching “that homosexual conduct is not morally
straight.” Id. at 651 (quoting Brief for Petitioners at 39, Dale, 530 U.S. 640 (No. 99699) (internal quotation marks omitted)). For an example of a Dale argument made in
the Solomon Amendment context, see Brief for Appellants at 20-25, Forum for
Academic and Inst. Rights, Inc. v. Rumsfeld, 390 F.3d 219 (3d Cir.)
(No. 03-4433) (Jan. 5, 2004), available at http://www.law.georgetown.edu/
solomon/Documents/CA3Brief.pdf.
See, e.g., Brief for Appellants, supra note 8, at 24 (“[L]aw schools feel they must
refuse to assist military recruiters in order to teach —by example —that abetting
discrimination is immoral.”).
See Dale, 530 U.S. at 654 (“Here, we have found that the Boy Scouts believes that
homosexual conduct is inconsistent with the values it seeks to instill in its youth
members; it will not ‘promote homosexual conduct as a legitimate form of
behavior.’ . . . [T]he presence of Dale as an assistant scoutmaster would . . . surely
interfere with the Boy Scouts’ choice not to propound a point of view contrary to its
beliefs.” (citation omitted)).
See, e.g., Brief for Appellants, supra note 8, at 24 (“Worse yet, the military’s
unwritten policy, in contrast to the statutory language, compels law schools to
disseminate the opposite message, by posting the military’s recruiting literature, by
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The schools have found hope for their cause in the first federal
appeals decision on the matter, issued in Forum for Academic and
Institutional Rights v. Rumsfeld (“FAIR”).12 In that case, the Third Circuit
agreed in a 2–1 decision that the Solomon Amendment violates Dale,13
noting that “the Solomon Amendment’s forcible inclusion of and assistance
to military recruiters undermines [the schools’] efforts to disseminate their
chosen message of nondiscrimination”14 and holding that the Solomon
Amendment is not narrowly tailored to any government interest that might
warrant infringing the schools’ expressive association rights.15
Supreme Court scrutiny looms, however, and those applauding the
outcome in FAIR have reason to be nervous. Commentators of every
political stripe have expressed near-uniform skepticism that the Third
Circuit’s decision will survive review.16 Most problematic of the
12.
13.
14.
15.
16.
distributing email notices to students, by coordinating meetings between military
recruiters and JAG applicants, and by providing the military with a forum.”). Some
dicta from the Supreme Court’s recent decision in Johanns v. Livestock Marketing
Ass’n, 125 S. Ct. 2055 (2005), lend support to the slight variant on this argument that
the recruiters’ message would be mistaken as the schools’ own. See, e.g., id. at 2065
(“On some set of facts, this [attribution] theory might . . . form the basis for an asapplied challenge —if it were established, that is, that individual beef advertisements
were attributed to respondents.”) .
390 F.3d 219 (3d Cir. 2004). The Forum for Academic and Institutional Rights
(“FAIR”) “is an association of 37 law schools and law faculties whose mission is to
promote academic freedom and to support educational institutions is
[sic] opposing discrimination.” Forum for Academic and Inst. Rights,
http://www.law.georgetown.edu/solomon/JoinFair.html (last visited Nov. 8, 2005).
Some of FAIR’s members have insisted on anonymity, but a list comprising a
majority of the membership is available online. See FAIR Participating Law Schools,
http://www.law.georgetown.edu/solomon/participating_schools.html (last visited
Nov. 8, 2005).
FAIR was not actually a decision on the merits because of its procedural posture.
What the court actually held was that “FAIR has a reasonable likelihood of success on
the merits of its expressive association claim against the Solomon Amendment.”
Forum for Academic & Inst. Rights, 390 F.3d at 235.
Id. at 233.
Id. at 234-35. (“[T]he Solomon Amendment could barely be tailored more broadly.”).
Id. at 234. The court alternatively held that FAIR would likely prevail on either
compelled speech or expressive conduct analyses. See id. at 235-42 (applying the
compelled speech doctrine); id. at 243-46 (applying the expressive conduct doctrine
under United States v. O’Brien, 391 U.S. 367 (1968)).
See, e.g., Michael C. Dorf, A Federal Appeals Court Rules that Universities Can Bar
Military Recruiters Without Losing Federal Grant Money: A Welcome Result Based
on Flawed Reasoning, FINDLAW’S WRIT, Dec. 8, 2004, http://writ.news.findlaw.com/
dorf/20041208.html;
Orin
Kerr,
Does
Dale
Forbid
the
Solomon
Amendment?, VOLOKH CONSPIRACY, Dec. 2, 2004, available at http://volokh.com/
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frequently-cited problems with the Third Circuit’s decision is the fact that
the court glossed over the conditional nature of the Solomon Amendment’s
requirements. Although not every government funding condition on speech
has passed constitutional muster,17 experience teaches that the Supreme
Court is unlikely to find that the government “discriminate[s] invidiously in
its subsidies in such a way as to ai[m] at the suppression of dangerous
ideas”18 under a conditional funding regulation than under a law that
regulates speech directly.19 Not surprisingly, the government relied heavily
on this argument in its petition for certiorari in FAIR.20
Furthermore, a number of commentators have questioned Dale’s
applicability to the Solomon Amendment,21 as did both the dissent and the
district court ruling in FAIR.22 One significant difference between the
17.
18.
19.
20.
21.
22.
archives/archive_2004_12_00.shtml#1102001213.
See FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984) (rejecting the
government’s argument that, pursuant to the spending power, Congress can condition
funding to a radio station on its agreement not to editorialize); Speiser v. Randall, 357
U.S. 513, 518 (1958) (holding that “a discriminatory denial of a tax exemption for
engaging in speech is a limitation on free speech”).
Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (1983) (second
alteration in original) (internal quotations and citation omitted).
See Rust v. Sullivan, 500 U.S. 173, 196 (1991) (rejecting the argument that a family
planning clinic receiving Title X funding under a program that forbade recipients
from engaging in abortion counseling was subject to an unconstitutional condition
because “the Government [was] not denying a benefit to anyone, but [was] instead
simply insisting that public funds be spent for the purposes for which they were
authorized”); Taxation with Representation of Wash., 461 U.S. at 548 (rejecting the
argument that a law preventing groups organized under section 501(c)(3) of the
Internal Revenue Code from engaging in lobbying activities was an unconstitutional
condition on speech in part because “veterans’ organizations that qualify under
section 501(c)(19) are entitled to receive tax-deductible contributions regardless of
the content of any speech they may use, including lobbying”). Of course, the art of
predicting the outcome of a so-called “unconstitutional conditions” case presents “a
minefield to be traversed gingerly.” Kathleen M. Sullivan, Unconstitutional
Conditions, 102 HARV. L. REV. 1413, 1416 (1989). But, because “current
constitutional law treats most governmental benefits as ‘gratuities,’” id. at 1424, the
possibility that the Supreme Court may take issue with the Third Circuit’s oversight is
not insignificant.
See Petition for a Writ of Certiorari at 20-24, Rumsfeld v. Forum for Academic and
Inst. Rights, No. 04-1152 (U.S. Feb. 28, 2005).
See, e.g., Dorf, supra note 16 (arguing that, because schools are not required to accept
military recruiters as actual members of the organization claiming an expressive
interest, “there’s no ‘forced acceptance’ argument —and hence no genuine analogy to
Dale —in the Solomon Amendment context”).
Forum for Academic and Inst. Rights, Inc. v. Rumsfeld, 390 F.3d 219, 257 (3d Cir.
2004) (Aldisert, J., dissenting) (arguing that “the likelihood that members of a law
school community will perceive a military recruiter’s on-campus activities as
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application of New Jersey’s public accommodation laws in Dale and the
requirements of the Solomon Amendment inheres in the disparate effect of
these laws on the associations they ostensibly interrupt—specifically, on
membership in those associations. One way to view the expressive
association doctrine as explained in Dale is to view a group’s expression as
arising out of the fact of association itself. In other words, the composition
of the membership conveys—and is designed to convey—a particular
message.23 If that is the correct view, applying Dale to the Solomon
Amendment becomes difficult and the plaintiffs in FAIR would be guilty of
confusing “association” (a term of art referring to the association only of an
organization’s members) with the act of “associating” with third parties
who are not members of the organization, regardless of whether the
Solomon Amendment is enforced.24 The government adhered to this view
reflecting the school’s ‘customary determination’ that the recruiter’s message is
‘worthy of presentation and quite possibly of support’ is vanishingly small”); see also
Forum for Academic & Inst. Rights, Inc. v. Rumsfeld, 291 F. Supp. 2d 269, 305
(D.N.J. 2003). The FAIR court stated that
Dale is distinguishable from this case. The communicative and
associational effect of periodic visits of a military recruiter to a
university campus or job fair is vastly different from the presence of a
gay scoutmaster in the Boy Scouts, a private membership organization.
The application of the state anti-discrimination law required the Boy
Scouts to accept a gay rights activist not merely as a member but as an
assistant scoutmaster. . . . There is no question that the forced inclusion
of an openly gay assistant scoutmaster would significantly undermine
the Boy Scouts’ ability to express its viewpoint and thereby inculcate its
values in younger members. Here, the Solomon Amendment does not
compel the law schools to accept the military recruiters as members of
their organizations, not to mention bestow upon them any semblance of
authority. Indeed, the military recruiters are actually present on
campuses only a few times per year. The military recruiter, by
definition, is not a member of the law school community. He or she is a
visitor, and, in fact, a periodic visitor among many competing visitors.
23.
24.
Id.
See Kerr, supra note 16 (“In the Boy Scouts case, it seems plausible that membership
was the message. Most groups are run by their members; the members determine the
group’s message. If a group can’t control its members, then it may be unable to
control its message.”).
As one commentator asked, “Doesn’t this comparison [to Dale] overlook the
difference between (a) government regulation forcing you to express a set of views,
and (b) government regulation forcing you to do something you really don’t want to
do?” Orin Kerr, Questions About the Solomon Amendment Ruling, VOLOKH
CONSPIRACY, Nov. 29, 2004, http://volokh.com/archives/archive_2004_11_28.shtml.
More succinctly, it is not clear at all that adherence with the Institutional view on
military policy is a litmus test for membership in the law school “association.”
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in its petition for certiorari.25
The Third Circuit considered and rejected this view,26 and the
Supreme Court may do the same. FAIR’s partisans undoubtedly hope for
such an outcome, but they do so against the weight of history, as the First
Amendment has proven a surprisingly impotent weapon when wielded
against the military in the Supreme Court.27 Time and again in these cases,
25.
26.
27.
Students, for example, carry opinions that run the spectrum on the constitutionality
and wisdom of the Solomon Amendment. See, e.g., Rachael Scarborough King,
Ghosts of ‘68 Haunt Latest ROTC Debate, COLUM. SPECTATOR (Columbia Univ.,
New York, N.Y.), Feb. 18, 2005, available at http://www.columbiaspectator.com/
vnews/display.v/ART/2005/02/18/4215b2c312b53 (canvassing a range of attitudes on
campus); Noah Peters, Editorial, A Misguided Militancy, CAVALIER DAILY (Univ. of
Va., Charlottesville, Va.), Feb. 18, 2005, available at http://www.cavalierdaily.com/
CVArticle.asp?ID=22363&pid=1258 (arguing that “we should question a policy on
the part of law schools that treats the United States military as some sort of hostile,
alien force that fundamentally undermines the policy of these universities”). Some
have taken this argument a step further and noted the irony that a school would rely
on the First Amendment in attempting to silence opposing points of view. See, e.g.,
John Leo, Editorial, The Wisdom of Solomon, U.S. NEWS & WORLD REP., Dec. 13,
2004, at 38.
See Petition for a Writ of Certiorari, supra note 20, at 12 (“[The Solomon
Amendment] does not establish criteria for the selection of administrators, faculty, or
students. Recruiters are not part of the institution itself and do not become members
through their recruiting activities. To the contrary, the role of recruiters is to attract
students to seek employment outside the school.”).
See Forum for Academic & Inst. Rights, 390 F.3d at 232-33. The court first turned to
recent circuit law that held that recitation of the Pledge of Allegiance violated a
school’s right of expressive association, notwithstanding the brief duration of the
Pledge and the possible alternative of reading a disclaimer before recitation. See id.
(citing Circle Schools v. Pappert, 381 F.3d 172, 182 (3d Cir. 2004)). The court also
pointed out that the Solomon Amendment does not merely require schools to sit idle
while recruiters do their work; instead, it requires that schools “actively assist military
recruiters in a manner equal in quality and scope to the assistance they provide other
recruiters.” Id. at 233 n.11 (citing 10 U.S.C. § 983(b)(1) (West 1998 & Supp. 2005)).
Finally, it observed that, under Dale, courts are to “give deference to an association’s
view of what would impair its expression.” Id. at 233 (quoting Boy Scouts of America
v. Dale, 530 U.S. 640, 653 (2000)).
See, e.g., Goldman v. Weinberger, 475 U.S. 503, 509-10 (1986) (upholding against
free exercise claim military regulations prohibiting an army psychologist from
wearing a yarmulke indoors while on duty); Wayte v. United States, 470 U.S. 598,
610-14 (1985) (upholding against free speech challenge a Selective Service policy of
“passive enforcement,” under which only nonregistrants were prosecuted, often on the
basis of letters from the nonregistrants indicating intent not to register in protest);
Brown v. Glines, 444 U.S. 348, 354-56 (1980) (upholding against free speech
challenge an Air Force regulation requiring approval of superiors before members
may petition on Air Force grounds); Greer v. Spock, 424 U.S. 828, 838 (1976)
(rejecting facial challenge on First Amendment grounds to base regulations
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the Court has stressed both Congress’s plenary authority “[t]o raise and
support Armies”28 and its own incompetence to second-guess Congress’s
exercise of that authority.29 Perhaps this is due in part to the indisputably
weighty government interest in preserving national security,30 against
which the Constitution’s provisions relating to individual rights may to
some seem secondary, trivial, or even meddlesome, a sentiment captured
eloquently (if hyperbolically) in the oft-uttered phrase that the Constitution
is not a suicide pact.31 And, indeed, other civil liberties have proven equally
prohibiting posting of political material at the base by civilian visitors); Laird v.
Tatum, 408 U.S. 1, 13-15 (1972) (rejecting claim that an army-administered domestic
surveillance program violated First Amendment rights by chilling speech); United
States v. O’Brien, 391 U.S. 367, 376 (1968) (rejecting claim that burning of a
Selective Service registration card is a protected exercise of free speech rights);
Presser v. Illinois, 116 U.S. 252, 267 (1885) (upholding against free assembly claim a
state statute prohibiting assembly “as a military company or organization” by anyone
other than members of the state or national armed forces). But see New York Times
Co. v. United States, 403 U.S. 713, 714 (1971) (“The Pentagon Papers Case”)
(quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)) (internal quotations
omitted) (rejecting attempt by the United States to enjoin publication of a classified
study of Vietnam military policy because “[a]ny system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional
validity”.). Although a number of these cases involved primarily internal military
policies, suggesting a possible basis upon which to distinguish the Solomon
Amendment, whose burden falls primarily on those outside of (indeed, upon those
who would rather have nothing to do with) the military, that distinction has arguably
already been rejected by the Supreme Court in a similar context (registration as
opposed to recruiting) as a basis for bringing more exacting scrutiny on military
policies. See Rostker v. Goldberg, 453 U.S. 57, 68 (1981).
The District Court . . . stressed that “[w]e are not here concerned with
military operations or day-to-day conduct of the military into which we
have no desire to intrude.” . . . We find these efforts to divorce
registration from the military and national defense context, with all the
deference called for in that context, singularly unpersuasive. . . .
Registration is not an end in itself in the civilian world but rather the
first step in the induction process into the military one . . . .
28.
29.
30.
31.
Id. (quoting Goldberg v. Rostker, 509 F. Supp. 586, 596 (D.C. Pa. 1980)).
U.S. CONST. art. I, § 8, cl. 12.
See, e.g., Goldman, 475 U.S. at 507 (“[C]ourts must give great deference to the
professional judgment of military authorities concerning the relative importance of a
particular military interest.”); Goldberg, 453 U.S. at 65 (“Not only is the scope of
Congress’ constitutional power in this area broad, but the lack of competence on the
part of courts is marked.”).
See, e.g., Wayte, 470 U.S. at 611 (“Few interests can be more compelling than a
nation’s need to ensure its own security.”).
See, e.g., Am. Comms. Ass’n, C.I.O. v. Douds, 339 U.S. 382, 409 (1950) (“Is this
beyond the power of Congress [to require Secret Service members to swear they do
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flimsy when the rights of civilians have been infringed in the name of
military necessity, as demonstrated most notoriously in Korematsu v.
United States.32
Perhaps the real problem is that many of the Constitution’s provisions
relating to individual rights were not designed in contemplation of the civilmilitary interface. Prior to adoption of the Bill of Rights, James Madison
acknowledged the dangers inherent in maintaining a military force, and he
did not draw upon any longstanding rights rooted in the English tradition to
reassure those worrying about Congress’s power to raise an army under the
new Constitution, saying only “that the only possible way to provide
against standing armies, is, to make them unnecessary.”33 When attentions
turned to establishing a bill of rights, two provisions emerged with an eye
to structuring limits to military power in the new republic. One provided
for a “well regulated militia” and an apparently related right to “keep and
bear arms” preserved in the people.34 The other forbade quartering of
troops in any house during peacetime without an owner’s consent.35 These
became, respectively, the second and third amendments to the new
32.
33.
34.
35.
not believe the President should be assassinated], whatever the need revealed by its
investigations? An affirmative answer hardly commends itself to reason unless,
indeed, the Bill of Rights has been converted into a ‘suicide pact.’” (citation
omitted)); see also Wayte, 470 U.S. at 612 (“Unless a society has the capability and
will to defend itself from the aggressions of others, constitutional protections of any
sort have little meaning.”).
323 U.S. 214, 217-18 (1944) (upholding evacuation of persons of Japanese descent,
including American citizens, from the west coast of the United States in the name of
military necessity); see also Ex parte Endo, 323 U.S. 283, 297-302 (1944) (striking
down internment of loyal evacuees, but not on constitutional grounds, and in fact
leaving open the possibility that properly authorized internment could survive
constitutional scrutiny).
James Madison, Virginia Convention, Patrick Henry’s Objections to a National Army
and James Madison’s Reply (June 16, 1788) in 2 THE DEBATE ON THE CONSTITUTION
695, 698 (Library of America, ed., 1993).
See U.S. CONST. amend. II; see also United States v. Miller, 307 U.S. 174, 177 (1939)
(“In the absence of any evidence tending to show that possession or use of a ‘shotgun
having a barrel of less than eighteen inches in length’ at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
instrument.”); Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52-53 (1820) (Story, J.,
concurring) (discussing the Second Amendment’s language respecting the right “to
keep and bear arms” in terms of a restraint on Congress’s militia power). For a
spirited critique of both Miller and the argument that military purpose limits the
extent of the Second Amendment right to keep and bear arms, see Roy Lucas, From
Patsone & Miller to Silveira v. Lockyer: To Keep and Bear Arms, 26 T. JEFFERSON L.
REV. 257, 286-97 (2004).
See U.S. CONST. amend. III.
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Constitution; they have since become more nearly artifacts of history than
robust reservoirs of protection from tyrannical state action.
At least one of these provisions is different from the others in the Bill
of Rights, however: the Third Amendment establishes an explicit limit to
the military’s power, vesting a right in the individual that, at least textually,
appears to be absolute in times of peace. In this sense, the Third
Amendment stands alone as a constitutional provision that reflects the
judgment that at least one peacetime right will always trump military
necessity no matter what form it takes;36 it embraces the notion in the most
democratic way that “[n]othing is more essential than to hold the civil
authority decidedly superior to the military power”37—that We, the People
shall govern rather than be governed by a standing army.38 Indeed, if the
36.
The Supreme Court has come close to embracing this precise proposition. See Laird
v. Tatum, 408 U.S. 1, 15-16 (1972).
The concerns . . . in response to disclosure of the Army surveillance
activities . . . reflect a traditional and strong resistance of Americans to
any military intrusion into civilian affairs. That tradition has deep roots
in our history and found early expression, for example, in the Third
Amendment’s explicit prohibition against quartering soldiers in private
homes without consent and in the constitutional provisions for civilian
control of the military. Those prohibitions are not directly presented by
this case . . . .
Id. Furthermore, in Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the United States
Government argued that the Third Amendment was the only provision of the
Constitution that operated to restrain the military—in wartime—notwithstanding the
necessities of the moment. Id. at 20-21.
By the Constitution, as originally adopted, no limitations were put upon
the war-making and war-conducting powers of Congress and the
President; and after discussion, and after the attention of the country was
called to the subject, no other limitation by subsequent amendment has
been made, except by the Third Article, which prescribes that “no
soldier shall be quartered in any house in time of peace without consent
of the owner, or in time of war, except in a manner prescribed by law.”
37.
38.
Id. By virtue of this constitutional arrangement, the government concluded that the
other rights secured by the Constitution—including the habeas corpus right at stake in
Milligan—are “all peace provisions” and are thus “silent amidst arms, and when the
safety of the people becomes the supreme law. Id. at 20.
JOHN ADAMS, (Unknown), in 10 THE WORKS OF JOHN ADAMS 17 (Charles Francis
Adams ed., 1856).
Indeed, the notion that liberty from quartering is essential to an effective civil-military
divide predates the Third Amendment and American independence itself. See, e.g.,
Midhurst v. White, 97 Eng. Rep. 821, 822 (K.B. 1761) (noting that procedural
restraints against quartering provided in England’s Mutiny Act were “intended to
guard the civil authority against the military”). At least one U.S. court has recently
reiterated this sentiment. See Padilla v. Rumsfeld, 352 F.3d 695, 714-15 (2d Cir.
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brief debate over the content of the Third Amendment prior to its
ratification reveals nothing else, it reveals that sentiment precisely. During
the debates in the House of Representatives, Roger Sherman, a
representative from Connecticut, argued against adoption of the Third
Amendment as written, urging that “it was absolutely necessary that
marching troops should have quarters, whether in time of peace or war, and
that it ought not to be put in the power of an individual to obstruct the
public service.”39 However grave that necessity may have seemed, it is
apparent from the fact of the Third Amendment’s adoption over this
objection that Congress and the states viewed the right it secured to be of
greater importance.
The Third Amendment provides the foundation for an ultimately
successful attack on the Solomon Amendment, at least as applied to private
schools. I advance this proposition with full awareness of the multiple and
often preposterous attempts to inject some life into the stubbornly sterile
scope of the Third Amendment’s protections.40 I do so, however, by a
method eschewed by many of my brave colleagues that have walked this
path: adherence to the actual origins of the individual right against
quartering and the application of that right in cases before and after the
adoption of the Third Amendment. Although gaps are inevitable in the case
of a provision so rarely applied, the Third Amendment’s history is
surprisingly rich, and it is one that points to a broader scope of protection
than a cursory reading of the Third Amendment might reveal.41
I begin by establishing that the Third Amendment secures what is
fundamentally a property right; in doing so I reject a thoroughly twentiethcentury tendency to think of the amendment in terms of an individual right
of privacy. I proceed by applying that right to the context presented by the
39.
40.
41.
2003) (“[T]he Third Amendment’s prohibition on the quartering of troops during
times of peace reflected the Framers’ deep-seated beliefs about the sanctity of the
home and the need to prevent military intrusion into civilian life.”).
Roger Sherman, House of Representatives, Amendments to the Constitution, 17 Aug.
1789, in 5 THE FOUNDERS’ CONSTITUTION 217, 218 (Philip B. Kurland & Ralph
Lerner eds., 1987).
See, e.g., Andrew P. Morriss & Richard L. Stroup, Quartering Species: The “Living
Constitution,” the Third Amendment, and the Endangered Species Act, 30 ENVTL. L.
769 (2000).
Although I depend heavily on history to make parts of my argument, I have tried to
avoid an exhaustive chronological genealogy, as this has already been attempted at
least twice. See generally Tom W. Bell, The Third Amendment: Forgotten but Not
Gone, 2 WM. & MARY BILL RTS. J. 117 (1993); William S. Fields & David T. Hardy,
The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal
History, 35 AM. J. LEGAL HIST. 393 (1991). As a result, although I try to rely on
primary sources to make points essential to my argument, I will occasionally cite to
these works to fill in inessential gaps for sake of completeness and simplicity.
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Solomon Amendment, asking along the way whether the amendment
covers recruiting activities, whether it covers anything but private houses,
and what exactly constitutes “quartering.” I conclude by addressing what I
view to be the two most difficult obstacles to a successful Third
Amendment challenge to Solomon: the conditionality issue and the Third
Amendment’s provision for wartime quartering.
I.
THE RIGHT TO EXCLUDE SOLDIERS
In the only federal court of appeals case to consider the direct
application of the Third Amendment, the Second Circuit declared in
Engblom v. Carey that “[t]he Third Amendment was designed to assure a
fundamental right to privacy.”42 That declaration perhaps only slightly
overstated a theory initially espoused by Justice Douglas, a theory to which
he would return but never really expound upon in a number of opinions
after he first hinted at it in Poe v. Ullman.43 A number of scholars and
lawyers have since seized upon this formulation of the Third Amendment’s
protections.44 Starting from the venerable proposition that “a man’s home is
42.
43.
677 F.2d 957, 962 (2d Cir. 1982) (citing Griswold v. Connecticut, 381 U.S. 479, 484
(1965) and Poe v. Ullman, 367 U.S. 497, 552 (1961) (Douglas, J., dissenting)).
367 U.S. at 522 (Douglas, J., dissenting).
Can there be any doubt that a Bill of Rights that in time of peace bars
soldiers from being quartered in a home ‘without the consent of the
Owner’ should also bar the police from investigating the intimacies of
the marriage relation? The idea of allowing the State that leeway is
congenial only to a totalitarian regime.
44.
Id. (footnote omitted)); see Osborn v. United States, 385 U.S. 323, 341 (1966)
(Douglas, J., dissenting) (quoting Griswold, 381 U.S. at 484); Griswold, 381 U.S. at
484 (“[S]pecific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance. . . . Various
guarantees create zones of privacy. . . . The Third Amendment in its prohibition
against the quartering of soldiers ‘in any house’ in time of peace without the consent
of the owner is [one] facet of that privacy.” (citation omitted)); Bell v. Maryland, 378
U.S. 226, 254 (1964) (Douglas, J., for reversing and directing dismissal of indictment)
(“The ban on quartering soldiers in any home in time of peace, laid down by the Third
Amendment, is one aspect of the right of privacy.”); Lombard v. Louisiana, 373 U.S.
267, 274 (1963) (Douglas, J., concurring) (“[T]he Bill of Rights . . . casts its weight
on the side of the privacy of homes. The Third Amendment with its ban on the
quartering of soldiers in private homes radiates that philosophy.”); see also Whalen v.
Roe, 429 U.S. 589, 607-08 n.* (1977) (Stewart, J., concurring) (quoting Katz, 389
U.S. at 350); Katz v. United States, 389 U.S. 347, 350 (1967) (Stewart, J.)
(identifying the Third Amendment as one “provision[] of the Constitution [that]
protect[s] personal privacy from other forms of governmental invasion”).
See, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131,
1174-75 (1991) (recognizing that “[t]o the extent modern lawyers think about the
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his castle,”45 the privacy theory boasts intuitive appeal. That theory also
seems to flow naturally from the Fourth Amendment, the heavily litigated
jurisprudence of which reveals the importance of protecting a person’s
privacy, particularly in his or her home, and parallel reference to houses
contained in the Fourth Amendment has been noted by a number of
scholars.46
If the Third Amendment secures a right to privacy, however, its
history suggests that this privacy “right” results as a byproduct of its
primary function—the delineation of the scope of the right to exclude in the
Anglo system of private property, specifically as it relates to military
intrusions. In 1628, prior to sending the Petition of Right to King Charles,
the British Parliament first submitted a “Petition Concerning the Billeting
of Soldiers,” which presents one of the clearest statements and earliest
elaborations of the British view of the right against quartering:
[B]y the fundamental laws of this realm, every freeman hath, and
of right ought to have, a full and absolute property in his goods
and estate; and that therefore the billeting and placing of soldiers
in the house of any such freeman against his will, is directly
contrary to the said laws, under which we and our ancestors have
been so long and happily governed.47
The petition discussed numerous abuses that had arisen under the
system of quartering soldiers on private property, only some of which are
of the sort that might be defended against by a privacy right as that concept
is understood today.48 Importantly, a number of the complaints could be
45.
46.
47.
48.
Third Amendment at all, they are likely to see it as an affirmation of the general right
of individual privacy thought to pervade . . . the Bill of Rights,” but suggesting that
the amendment has additional importance along with the Second Amendment as a
“structural” protection against an “overbearing military”).
See Semayne’s Case, 77 Eng. Rep. 194, 195 (K.B. 1604) (“[T]he house of every one
is to him as his . . . castle and fortress, as well [as] for his defence against injury and
violence, as for his repose. . . .”).
See, e.g., Amar, supra note 44, at 1175 (“To be sure, there is an important connection
between the Third and Fourth Amendments. Both explicitly protect ‘houses’ from
needless and dangerous intrusions by governmental officials.”).
The Petition Concerning the Billeting of Soldiers (Eng. 1628), reprinted in 2
COBBETT’S PARLIMENTARY HISTORY OF ENGLAND: FROM THE NORMAN CONQUEST, IN
1066 TO THE YEAR 1803, at 283-84 (1807) [hereinafter The Petition Concerning the
Billeting of Soldiers].
Specifically, the petition enumerated eight alleged abuses. First, quartering interfered
with church attendance by the King’s subjects, who feared that “soldiers [w]ould rifle
their houses.” Id. at 284. Second, the “good government of the country is hereby
neglected, and almost contemned.” Id. Third, justices of the peace were ignored and
resisted by the soldiers, who presumably did not view themselves as subject to
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sustained by the mere presence of soldiers on private property, regardless
of whether persistent occupation or entry into a dwelling place was
attempted.49 The quartering complaint continued to be advanced in these
terms, and it remained a source of tension between the Parliament and the
Crown for much of the history leading up to the Glorious Revolution,50
finding expression in the Petition of Right in 162851 and in the English Bill
49.
50.
51.
civilian control. Fourth, the revenue of the gentry was impaired by the tendency of
farmers to abandon their quartered-upon lands in search of “places of more secure
habitation.” Id. Fifth, soldiers encouraged idle behavior among subjects. Sixth, trade
was discouraged due to the potential for military interference. Seventh, markets had
“grown so dangerous” that they were no longer frequented. Id. Last, foreshadowing
one of the populist cries that would come to be linked to the quartering issue in the
colonies, “[f]requent robberies, assaults, batteries, burglaries, rapes, rapines, murders,
barbarous cruelties, and other most abominable vices and outrages, are generally
complained of from all parts, where these companies have been and have their
abode.” Id.
See points two, three, five, six, seven, and eight in note 48, supra. The complaint
against the soldiers was also founded upon the cost of maintaining the troops, again
foreshadowing a common Colonial complaint. See The Petition Concerning the
Billeting of Soldiers, supra note 47, at 284 (complaining that the method of
quartering was applied “to compel many of your maj.’s subjects to receive and lodge
[soldiers] in their own houses, and both themselves and others to contribute towards
the maintenance of them”).
See, e.g., The Humble Petition of the Inhabitants of the County of Oxford, to His
Majesty, at 3 (1642) (complaining that a greater number of troops had been billeted
on the county than had been contracted for and requesting relief).
Petition of Right (Eng. 1628), available at http://www.constitution.org/
eng/petright.htm.
And whereas of late, great companies of soldiers and mariners have
been dispersed into divers counties of the realm, and the inhabitants,
against their wills, have been compelled to receive them into their
houses, and there to suffer them to sojourn, against the laws and
customs of this realm, and to the great grievance and vexation of the
people.
Id. In the debate leading up to the adoption of the Petition of Right, the property
theme was repeated. See, e.g., LOIS G. SCHWOERER, “NO STANDING ARMIES!” 26 (The
Johns Hopkins Univ. Press 1974).
As for billeting, the leading spokesman was Sir Francis Seymour. His
point was that the House of Commons need not give the king a supply,
if the king takes whatever he wants. “That this hath been done,”
Seymour continued, “appeareth by the Billeting of Soldiers.” That is,
billeting of soldiers is a violation of the right the subject has in his
property.
Id. (emphasis added) (citation omitted).
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of Rights in 1689.52 Around the time of the Bill of Rights and in the years
that followed, King William paid at least lip service to these concerns by
issuing a number of declarations purporting to regulate the soldiery and
quartering in particular.53
The property-right thesis receives additional support from the
application of the individual right against quartering in court. In 1699, the
owner of a lodging house located near natural springs brought an action in
trespass against the local constable, who had attempted to force him to take
on soldiers under a wartime statute that permitted quartering on public
inns.54 The constable argued in defense that the house was a “public inn”
within the meaning of the quartering statute.55 The King’s Bench rejected
this proposition and found the constable liable for trespass. The court noted
the Petition of Right’s proscription against quartering and reasoned that any
provision for quartering contrary to the rights listed there ought to be
construed narrowly “without great necessity.”56 Thus, because the house
was neither a public inn nor a “victualling-house,” the constable had
52.
See An Act Declareing the Rights and Liberties of the Subject and Setleing
the Succession of the Crowne, 1688, 1 W. & M. ch.2 (Eng.).
Whereas the late King James the Second by the Assistance of diverse
evill Councellors Judges and Ministers imployed by him did endeavour
to subvert and extirpate the Protestant Religion and the Lawes and
Liberties of this Kingdome . . . . By raising and keeping a Standing
Army within this Kingdome in time of Peace without Consent of
Parlyment and Quartering Soldiers contrary to Law.
53.
Id.
See Declaration for the Strict Discipline of the Army, and Due Payment of Quarters,
1694, 7 Will. 3 (Eng.) (requiring notice of and payment for quartering); Declaration
for the Better Quartering of the Forces, 1689, 1 Will. 3 (Eng.)
We have thought fit hereby to declare Our Pleasure to be, That none of
the Forces, of what Nation or Quality soever, shall presume to Quarter
in any Private House, without the free and Voluntary Consent of the
Owner; and that all Houses be Deemed Private Houses, except
Victualling Houses, and Houses of Publick Entertainment, or such as
Sell Wine or any other Liquor by Retail.
54.
55.
56.
Id.; Declaration, 1688, 1 Will. 3 (Eng.) (requiring heads of regiments to reign in
troops that “have been encouraged to disperse themselves in an unusual and
unwarrantable Manner, whereby the Publick Peace is very much disturbed”).
Parkhouse v. Forster, 87 Eng. Rep. 746 (K.B. 1699). The case is alternatively reported
as Parkhurst v. Foster and Parker v. Flint in subsequent volumes of the English
Reports. See 90 Eng. Rep. 842; 88 Eng. Rep. 1303.
Parkhouse, 87 Eng. Rep. at 747; see Act for Carrying on a War with France, 1692, 4
& 5 W. & M., c.13, § 18(a) (Eng.).
Parker, 88 Eng. Rep. at 1303.
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committed a trespass and was liable for damages.57 Importantly, the owner
had not argued any point ringing in tones of privacy; he had merely
asserted a right to exclude soldiers, apparently for any or even no reason at
all.58
Furthermore, the antiquartering right under English law extended to
impositions that did not typically imperil privacy interests. In Read v.
Willan, for example, an innkeeper protested the billeting of horses in the
stable attached to his inn.59 The innkeeper argued that the law governing
quartering in England60 should have been strictly construed to exclude the
type of horses at issue in the case.61 The defendant, a military contractor,
argued that it was the severity of the imposition—rather than the nature of
it—that the law had been designed to regulate,62 and that as a result the
precise nature of the horses was immaterial. The economic burden of
57.
58.
Id.
Indeed, the owner’s argument was rooted in the classic property-rights distinction
between the peculiarly diminished rights of innkeepers to exclude guests without
cause and the general rule that owners of private houses have an unlimited right to
exclude. See Parkhouse, 87 Eng. Rep. at 746.
[I]f the constable billet [soldiers] upon private houses, a good action lies
against him, and there is all the caution imaginable used [in the
quartering statutes] that private houses should be exempted from
quartering soldiers. Public-houses have a different consideration in law
from private houses of this nature; for a good action will lie against an
innkeeper for refusing to entertain a stranger.
59.
60.
61.
62.
Id. (citation omitted). Essentially, the constable had disagreed only about the
characterization of the house at issue in the case. See id. at 747 (“If it be not a private
house, it must be a public-house; there are no middle sort of houses.”). The limited
right to exclude applicable in the context of innkeepers and common carriers has deep
roots in both English and American law. See, e.g., Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 260 (1964) (“[I]nnkeepers, ‘by the laws of all the States,
so far as we are aware, are bound, to the extent of their facilities, to furnish proper
accommodation to all unobjectionable persons who in good faith apply for them.’”)
(quoting The Civil Rights Cases, 109 U.S. 3, 25 (1883)); Anonymous, Y.B. Mich. 39
Hen. VI, fo. 18, pl. 24 (1460), reprinted in J.H. BAKER & S.F.C. MILSON, SOURCES OF
ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, at 217 (Butterworth & Co. Ltd.
1986) (“[I]f I come to an innkeeper to lodge with him and he refuses to provide
lodging for me, I shall have upon my case an action of trespass against him. And
similarly if I come to a victualler to buy victuals, and he will not sell, I shall have
trespass upon my case against him . . . .).
99 Eng. Rep. 271, 271 (K.B. 1780).
See Mutiny Act, 20 Geo. 3, c.12 (Eng.).
Read, 99 Eng. Rep. at 272 (“Artillery horses are not within the reason and spirit of the
[Mutiny] Act, as Dragoon horses are . . . .”).
Id. at 271.
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quartering was the focus of the law, he argued.63 Neither side argued the
case in terms of privacy or security of the home.
Thus, the right against quartering tracked the right to exclude more
generally. In light of prevailing views of private property at the time, the
connection was a logical one, as the right to exclude was thought to form
the core of private property rights,64 a principle that has remained largely
intact to this day.65 That theoretical underpinning of the antiquartering right
was retained in English law without interruption up to the Revolutionary
War and beyond.66 Not surprisingly, references to a right against quartering
on the Colonial side sounded in similar tones.67
63.
64.
Id. at 272 (“By the common law, . . . soldiers were billeted in the most oppressive
manner, without any restriction as to the time, the number, or subsistence; but this
mischief was remedied by the Petition of Right, and the subsequent Acts relative to
this subject.”).
See JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 19 (C.B. Macpherson ed.,
Hackett Publ’g Co. Inc. 1980) (1690).
Whatsover then [a person] removes out of the state that nature hath
provided, and left it in, he hath mixed his labour with, and joined to it
something that is his own, and thereby makes it his property. It being by
him removed from the common state nature hath placed it in, it hath by
this labour something annexed to it, that excludes the common right of
other men . . . .
65.
66.
Id.
In the post-Lochner era, private property rights are arguably not quite as robust as
they might once have been. The right to exclude still receives treatment as one of the
essential sticks in the bundle of property rights, however, as modern takings cases
reveal. See, e.g., Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831 (1987) (“We
have repeatedly held that, as to property reserved by its owner for private use, ‘the
right to exclude [others is] “one of the most essential sticks in the bundle of rights that
are commonly characterized as property.”’” (quoting Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 433 (1982) (quoting Kaiser Aetna v. United
States, 444 U.S. 164, 176 (1979))); see also cases cited infra note 160. Indeed, one
contemporary scholar has argued that the right to exclude remains the essential stick
in that bundle. See Thomas W. Merrill, Property and the Right To Exclude, 77 NEB.
L. REV. 730 (1998).
Cf., e.g., GREAT BRITAIN, AN ABSTRACT OF THE LAWS RELATING TO INN-KEEPERS,
TAVERN-KEEPERS, ALEHOUSE-KEEPERS, &C. 61-62 (London, 1782)
Constables . . . [are] impowered by the Mutiny Act to quarter and billet
and Officers and soldiers, in inns, livery-stables, alehouses, victualling
houses, and the houses of those who sell wine by retail to be drank in
their own houses, or in places belonging thereto . . . and in the houses of
such as sell brandy, strong waters, cyder, or metheglin, by retail, to be
drank in houses . . . and in no private house whatsoever.
67.
Id.
See, e.g., A Letter to the People of Pennsylvania, reprinted in 1 PAMPHLETS OF
THE
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What little attention American courts gave quartering in the decades
after the Third Amendment’s adoption verifies the property thesis as well.
In 1849, the Supreme Court of Georgia was called upon to interpret a 1791
state statute regulating taverns and houses of entertainment in Bonner v.
Welborn.68 The court turned to, among other sources, Parkhurst v. Foster.69
Meanwhile, in characterizing the legal issue, the court emphasized property
rights: “The principle upon which the question depends . . . is this: every
citizen is entitled to the lawful use and profits of his property, and no man
has the right to deprive him of the one or the other.”70 Admittedly, this
sheds little light on how the Georgia Supreme Court understood the
quartering question, but it did not reject the property rights underpinnings
of the Parkhurst case.
In 1857, the Supreme Court paused in its infamous Dred Scott v.
Sandford opinion to examine the taxonomy of rights secured by the
Constitution’s first eight amendments, observing that some of the rights
related to property, while others related to the individual.71 Although this
AMERICAN REVOLUTION 1750-1776, at 269 (Bernard Bailyn ed., 1965) (“What part
did [judges] act in preventing your houses (which by law are to every man a place of
refuge and safety) from being made barracks for the soldiery?”); id. at 702 n.11
(editor’s endnote)
[R]eference to the problem of quartering troops is significant” because
the “problem of quartering . . . troops first became acute in 1754 and
1755 when accommodations had to be made for Braddock’s army. The
Pennsylvania Assembly . . . refused the military commander’s demand
that they appropriate funds either to build barracks or to repay those
who undertook to house the troops. Instead, the legislature raised the
legal point of ‘the undoubted right’ of British subjects, a right confirmed
in the Bill of Rights, ‘not to be burdened with the sojourning of soldiers
against their will.’ It then adopted as the law of the province the
arrangement that obtained in times of peace in England and Wales
whereby troops were allowed to be billeted only in public houses.
Id.; Benjamin Franklin, GAZETEER AND NEW DAILY ADVERTISER, May 2, 1765,
reprinted in 5 THE FOUNDERS’ CONSTITUTION, supra note 39, at 215.
All that the agents contend for is, that the same protection of property
and domestic security which prevails in England, should be preserved in
America. Let Mr. C. D. or his master, first try the effects of quartering
soldiers on butchers, bakers, or other private houses here, and then
transport the measure to America.
68.
69.
70.
71.
Id.
7 Ga. 296, 301 (1849).
Id. at 308. Parkhurst is the fourth variant of the King’s Bench case alternatively
known as, for example, Parker v. Flint. See cases cited supra note 54.
Bonner, 7 Ga. at 310.
60 U.S. (19 How.) 393, 450 (1857).
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elaboration was ultimately put to notorious purposes—and although one
could fairly accuse the Court of having defined “property” too liberally in
other respects—the analysis illustrates that the Supreme Court, too,
regarded the Third Amendment as a property right. To demonstrate its
point that “the rights of private property have been guarded with equal
care” as compared to “rights of person,” the Court submitted that “it will
hardly be contended that Congress could by law quarter a soldier in a house
in a Territory without the consent of the owner, in time of peace; nor in
time of war, but in a manner prescribed by law.”72
Finally, in Rutledge v. Fogg, a post-Civil War case concerning the
administration of a decedent’s estate, the Supreme Court of Tennessee
intimated a similarly property-based view of the antiquartering right.73 The
City of Nashville had imposed taxes on the distribution of the estate’s
assets, reflecting past due taxes that accrued during the war. An appeal
from that imposition followed, challenging the authority of the military
government set up in Nashville during the war to levy taxes on the estate
and in any event its authority to levy taxes when the land had been
occupied exclusively by military forces during the period in question.74 In
the course of analyzing these challenges, the court found it necessary to
determine the extent of the authority of the United States military to seize
and occupy private property. Relying on the military directive that defined
that authority, the court concluded that, in cases of war, “the right to seize
private property rests upon the military necessity that exists at the time, and
its use and occupation”75—including the need “to billet soldiers”76—was
“temporary,” but “universally recognized by all civilized nations.”77 The
court concluded that, because the occupation was temporary, title in the
property remained vested in the owner, and thus taxes were due.78 As was
the case with the Georgia Supreme Court in Bonner, the Tennessee
Supreme Court did not squarely address a quartering argument. The logic
of its argument rested, however, on an assumption that quartering touched
on an owner’s right and title in private property.
The historical record on both sides of the Atlantic strongly suggests,
72.
73.
74.
75.
76.
77.
78.
Id.
43 Tenn. (3 Cold.) 554, 556-57 (1866).
Id.
Id. at 567.
Id. (quoting ADJT. GENERAL’S OFFICE, WAR DEP’T, INSTRUCTIONS FOR THE GOV’T. OF
THE ARMIES OF THE UNITED STATES IN THE FIELD, GEN. ORDER NO. 100 § II, art. 37
(1863), reprinted in LIEBER’S CODE AND THE LAW OF WAR 52 (Richard Shelly
Hartigan ed., 1983)).
Id.
Id. at 568-69.
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therefore, that the antiquartering right is fundamentally a private property
right. Specifically, I have suggested here that the right against quartering is
a particular facet of the general right to exclude. Modern realities suggest
that this right-to-exclude function ought to be preserved rather than
supplanted by a new sort of privacy right, whether guidance is sought in
contemporary constructions of the amendment, in parallel constitutional
provisions, or in simple policy arguments.
To begin, even Justice Douglas’s opinions referencing the Third
Amendment taken together do not constitute an argument that the
antiquartering right was “designed to assure a fundamental right to
privacy,” as the Second Circuit suggested.79 In some cases, Justice Douglas
argued only that the inclusion of a right against quartering in the Bill of
Rights implies the existence of a parallel right;80 in others, he merely
pointed out that the Third Amendment contributes to a package of rights
that “emanate” to “create zones of privacy.”81 Even the Second Circuit’s
opinion rests in large part on an analysis of New York’s property law.82
The court’s mistake was in attempting to determine whether a cognizable
Third Amendment interest in property existed by reference to the tenant’s
reasonable expectations of privacy.83
The Third Amendment is, after all, one tool to establish the separation
of the military and civil spheres as designed by the Constitution and Bill of
Rights. As Fourth Amendment jurisprudence has revealed, discerning the
boundaries of reasonable expectations of privacy is more an art than a
science. The Third Amendment’s structural protections would thus prove
rather flimsy if they were to depend on the existence of an established zone
of privacy, an existence that, if the Fourth Amendment is any guide, would
often have to be established in court and after the fact of quartering.
Perhaps the best clue that the Third Amendment protects property rather
than privacy is contained in its text, which directs that no soldiers are to be
“quartered in any house,”84 rather than, for example, “on any person.” The
Fourth Amendment, in contrast, refers to the “right of the people to be
secure in their . . . houses.”85 It might fairly be said that the Third
79.
80.
81.
82.
83.
84.
85.
Engblom v. Carey, 677 F.2d 957, 962 (2d Cir. 1982).
See Poe v. Ullman, 367 U.S. 497, 522 (1961) (Douglas, J., dissenting) (arguing that
the antiquartering right implies a privacy right against government interference in the
marriage relationship).
See Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
Engblom, 677 F.2d at 962.
See id.
U.S. CONST. amend. III.
U.S. CONST. amend. IV (emphasis added).
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Amendment protects places, not people.86
Finally, the privacy thesis is significantly underinclusive and renders
the Third Amendment’s protections largely duplicative of those the Fourth
Amendment already “secure[s].”87 Chief harms against which the
antiquartering right has been thought to protect from ancient times—abuse
by soldiers88 and deprivation of “the lawful use and profits of . . .
property”89—remain very real threats, the weight of which the people
would surely come to feel with greater force were the Third Amendment’s
protections to be limited strictly to zones of reasonable privacy
expectations.
A conclusion that the Third Amendment does protect property rather
than privacy is essential to its application to the Solomon Amendment. I
assume—without laboring to demonstrate the point—that a private
university, as a corporate person, could not seriously claim that it has a
right rooted in privacy concerns to exclude anyone from campus, or at least
not from general meeting areas or other areas likely frequented by
recruiters. I do not assume, however, that merely making a successful case
for the property-right view ends the analysis. It remains to be seen whether
university property is of a character proper for Third Amendment
protection, whether recruiters are “soldiers,” and whether visiting recruiters
are “quartered” on campuses for Third Amendment purposes.
86.
87.
88.
89.
See Katz v. United States, 389 U.S. 347, 351 (1967) (“For the Fourth Amendment
protects people, not places.”). Id. Of course, the people enjoy derivative protection
from the antiquartering right, just as places—homes in particular—enjoy varying
degrees of derivative protection from the Fourth Amendment.
U.S. CONST. amend. IV.
See supra note 48. Madison had suggested prior to the introduction of the Bill of
Rights that many of the problems attendant to quartering were unique to the
experience of occupation by a foreign force over which no control could be exerted
by the local legislature. See Madison, supra note 33, at 697-98 (“[Patrick Henry] says,
that one ground of complaint at the beginning of the revolution, was, that a standing
army was quartered upon us. That was not the whole complaint. We complained
because it was done without the local authority of this country,—without the consent
of the people of America.”). Obviously, however, soldiers under any flag are capable
of committing abuse, and the property right the Third Amendment secures suffers a
trespass regardless of the identity of the uninvited guest. In any event, Madison’s
view was not shared by the harshest critics of quartering. See, e.g., 3 CATO’S LETTERS,
NO. 94, at 237 (4th ed. 1737) (John Trenchard) (“If we [are] to be governed by
Armies, it is all one to us, whether they be Protestant or Popish Armies; the
Distinction is ridiculous, like between a good and a bad Tyranny.”).
Bonner v. Welborn, 7 Ga. 296, 310 (1849).
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II. THE PRIVATE SCHOOL’S RIGHT TO EXCLUDE MILITARY
RECRUITERS
The Third Amendment protects a property right, but whose property
and against what kinds of trespass? History and theory support a conclusion
that thrusting military recruiters on private campuses would violate Third
Amendment rights absent other considerations.90 This proposition might
have been easily established; some evidence can be marshaled to support
the proposition that the Third Amendment creates a broad constitutional
property right to exclude any member of the military from all private
property for any reason or no reason at all, at least during peacetime. That
evidence is scant, however, and what evidence exists is too superficial to
support the theory,91 especially in light of what should be at least a modest
presumption92 that the words of the amendment have some meaning.
90.
91.
92.
For a related discussion, see infra Parts III and IV.
See, e.g., The Petition Concerning the Billeting of Soldiers, supra note 47, at 283-84
(suggesting that the right against quartering is rooted in the absolute right of
property).
I say a “modest presumption,” and I doubt that more than that is required.
Interpretation of constitutional provisions, especially of the Bill of Rights, is not
known for slavish reliance on textualist techniques. For example, the First
Amendment has been held to secure the right not to speak, see W. Va. Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943) (“[T]he action of the local authorities in
compelling the flag salute and pledge transcends constitutional limitations on their
power and invades the sphere of intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official control.”), and a right to
know one’s rights incident to arrest has been discovered in the Fifth Amendment, see
Miranda v. Arizona, 384 U.S. 436, 468-69 (1966). In its latest pronouncement on the
Confrontation Clause, too, the Supreme Court—at the hand of no less a textualist than
Justice Scalia—focused extensively on the historical meaning of that clause and its
analogous common law protections rather than turning to dictionaries and other
methods of statutory construction. See Crawford v. Washington, 541 U.S. 36, 42
(2004) (“The Constitution’s text does not alone resolve this case.”); id. at 43-50
(discussing the history of the confrontation right, beginning with Roman times).
Fourth Amendment jurisprudence has been marked by a similar approach, albeit not
without interruption. See generally David A. Sklansky, The Fourth Amendment and
Common Law, 100 COLUM. L. REV. 1739 (2000). This approach to interpreting the
Bill of Rights has not been consistently applied, but it has long had the Supreme
Court’s approval. See Robertson v. Baldwin, 165 U.S. 275, 281 (1897).
The law is perfectly well settled that the first ten amendments to the
constitution, commonly known as the Bill of Rights, were not intended
to lay down any novel principles of government, but simply to embody
certain guaranties and immunities which we had inherited from our
English ancestors, and which had from time immemorial been subject to
certain well-recognized exceptions arising from the necessities of the
case.
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Whether a private school has a Third Amendment right to exclude military
recruiters, therefore, turns on the proper definition of the amendment’s
scope.
A. Recruiters Are Soldiers
Although the common law right against quartering arguably protected
against more than merely military impositions,93 the Third Amendment
expressly bars only the quartering of soldiers. Both courts94 and scholars95
93.
Id. Nonetheless, the text should at least inform the analysis. “In interpreting the
Constitution, ‘real effect should be given to all the words it uses.’” Griswold v.
Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring) (quoting Myers v.
United States, 272 U.S. 52, 151 (1926)).
See Christianson, supra note 1, at 548.
After such lawyers as Christopher Sherland, Hakewill and Sir Edward
Coke had cited numerous precedents showing that billeting was not an
ancient practice, it was resolved, without a negative voice, that: ‘the
billeting and placing of soldiers or other persons in the house of any
free man against his will is contrary to the law’ . . . .
94.
Id. (quoting 2 PROCEEDINGS IN PARLIAMENT 1628: COMMONS DEBATES 1628, at 36071 (Robert C. Johnson et al. eds., 1977-78)) (emphasis added).
Both the district court and the court of appeals in Engblom paused briefly to consider
whether members of New York’s national guard were “[s]oldiers” under the Third
Amendment, concluding cursorily in both cases that they were. Engblom v. Carey,
677 F.2d 957, 961 (2d Cir. 1982) (“We agree with the district court’s conclusion that
the National Guardsmen are ‘Soldiers’ within the meaning of the Third
Amendment . . . .”); Engblom v. Carey, 522 F. Supp. 57, 65 (S.D.N.Y. 1981) (“First,
the Guard is the modern day successor to the Militia reserved to the states by Art. I, §
8, cls. 15, 16 of the Constitution, and members of that organization must be
considered ‘soldiers.’”).
In fact, however, these conclusions may have been erroneous. The founding
generation thought of the militia as an entirely different sort of animal from the
military, comprised not of professional soldiers, but of ordinary citizens. In fact, the
militia concept was conceived in part as another structural protection against military
oppression.
This is not an entirely academic point. The original design had contemplated the
raising of and reliance upon an actual army only during times of war. That decision
reflected a long-established fear of standing armies that had developed over centuries
of English experience. The militia, in contrast, was to be available for domestic
disturbances short of war, as provided for in the Constitution. See U.S. CONST. art. I, §
8, cl. 15 (“The Congress shall have Power . . . [t]o provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]”).
And, indeed, it has served that function during modern times. See, e.g., The 43 Who
Died: An Investigation into How and Why Detroit’s Riot Victims Were Slain, DETROIT
FREE PRESS, Sept. 3, 1967, at B1.
Its ability to perform that function depends on its treatment as a distinct entity
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have addressed the definition of “soldier,” but these analyses do not bear
directly on the question of whether military recruiters ought to be
considered soldiers for Third Amendment purposes. They certainly do not
exclude the conclusion that they should be so considered, however. And in
fact that conclusion receives support from the structural purposes of the
Third Amendment in the constitutional context, the historical bases for a
right against quartering, and the role of the recruiter within the military
itself.
First, as a structural restraint on military power, the Third
Amendment likely applies to the quartering of virtually any military
personnel. Any alternative to a blanket application of the amendment runs
into hair-splitting and administrability problems inherent in any case-bycase determination of whether a particular member in the military is a
“soldier.” These kinds of determinations again seem prone to being raised
only after the fact of quartering, a state of affairs that would be difficult to
square with the Third Amendment’s absolute language regarding peacetime
quartering. Furthermore, as a general principle, the Supreme Court has
repeatedly recognized in its military deference cases that “the military is,
by necessity, a specialized society separate from civilian society,”96 a
maxim that simultaneously encapsulates the civil-military division that the
95.
96.
from the military. Congress seems to have recognized this long ago when it passed
the Posse Comitatus Act in 1878. See 20 Stat. 145, ch.263, codified as 18 U.S.C. §
1385 (2004). This law prevents the military from performing militia-like functions
and can be defended on the theory of the Third Amendment advanced in this article.
If the Third Amendment is designed to protect private property and preserve civilian
authority in times of peace—and if the primary threat to those interests is from the
professional military—then the amendment’s peacetime provisions quite properly
make military intervention in domestic disturbances impractical, leaving that task to
the militia, consistent with constitutional design. For an alternative, cynical view of
the Posse Comitatus Act, see generally Gary Felicetti & John Luce, The Posse
Comitatus Act: Setting the Record Straight on 124 Years of Mischief and
Misunderstanding Before Any More Damage Is Done, 175 MIL. L. REV. 86 (2003).
See, e.g., Christopher J. Schmidt, Could a CIA or FBI Agent Be Quartered in Your
House During a War on Terrorism, Iraq or North Korea?, 48 ST. LOUIS U. L.J. 587,
596-604 (2003) (defining “soldier” broadly, largely on the basis of dictionary
definitions, and concluding that both CIA and FBI agents are soldiers for purposes of
Third Amendment analysis).
Goldman v. Weinberger, 475 U.S. 503, 506 (1986) (internal quotations omitted)
(quoting Parker v. Levy, 417 U.S. 733, 743 (1974)). This sentiment, essentially a
rejection of the “citizen-soldier” concept, echoes Alexander Hamilton’s words: “The
industrious habits of the people of the present day, absorbed in the pursuits of gain
and devoted to the improvements of agriculture and commerce, are incompatible with
the condition of a nation of soldiers, which was the true condition of the people of
[the ancient Greek] republics.” THE FEDERALIST NO. 8, at 37 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).
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Third Amendment seems designed to maintain and, at least implicitly, the
idea that the “military” includes an entire society, presumably one
comprising a number of members performing a wide variety of roles. For
its part, the military certainly views its recruiters as members of its
“specialized society,” as it promulgates the regulations that dictate
recruiting procedure, requires adherence to the same, and resorts to the
military courts in the event of derogation from those procedures.97
Tellingly, the Army refers to “recruiting compan[ies]” and “battalion
leadership team[s],” and speaks of “[e]stablish[ing] an Army presence on
the campuses of 4-year colleges,”98 language that unmistakably evokes the
military, rather than civilian, sphere.
The history of the antiquartering right lends further support to a broad
definition of “soldier.” As a practical matter, any of the abuses that gave
rise to the petition against quartering in 1628 could as easily be suffered at
the hands of a recruiter as at the hands of a cavalryman.99 More to the
point, the Colonial conversation leading up to the adoption of the Third
97.
98.
99.
See Goldman, 475 U.S. at 506; see also, e.g., Statement of Understanding Recruiting
with Integrity preface to UNITED STATES ARMY RECRUITING COMMAND, RECRUITER
HANDBOOK, USAREC Pam 350-2 (Nov. 18, 1999), available at
http://www.usarec.army.mil/im/formpub/REC_PUBS/p350_2.pdf (requiring the
signing recruiter to review various regulations and to agree that “failure to comply
with these regulations may subject me to disciplinary action under the Uniform Code
of Military Justice” and revealing that recruiters are within the “chain of command”).
U.S. Army Recruiting Command, POSTSECONDARY SCHOOLS RECRUITING PROGRAM,
USAREC Regulation 601-104 (Feb. 17, 2005), at 1, available at
http://www.usarec.army.mil/im/formpub/REC_PUBS/R601_104.pdf.
Indeed, recruiters would have been particularly apt at encouraging idle behavior
among civilians, one of the eight abuses considered in adopting the 1628 petition. See
supra note 48. Thomas Jefferson complained of this precise phenomenon two years
before ascending to the presidency, bemoaning the “recruiting officers lounging at
every court-house to decoy the laborer from his plough,” just one among a litany of
drawbacks he saw to the maintenance of a standing army, to which he preferred
reliance upon a militia force. Letter from Thomas Jefferson to Edmund Pendleton
(Jan. 29, 1799), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 547, 548
(Adrienne Koch & William Peden eds., 1944).
Furthermore, the Army itself has recognized that modern recruiting abuses are
widespread, so much so that it recently required a first-ever “values stand-down” day
off in an effort to address these abuses. Damien Cave, Army to Spend Day Retraining
Recruiters, N.Y. TIMES, May 12, 2005, at A24 (reporting that “report of so-called
recruiting improprieties have begun to appear around the country” and that
“substantiated cases of improprieties have increased by more than 60 percent, to 320
in 2004 from 199 in 1999”). For additional background reading on problems with
contemporary recruiting tactics, see Karen Houppert, Military Recruiters Are Now
Targeting Sixth Graders. Who’s Next?, NATION, Sep. 12, 2005, available at
http://www.thenation.com/docprint.mhtml?i=20050912&s=houppert.
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Amendment observed no distinction among members or ranks within the
military when it addressed the quartering issue,100 and it appears to have
been English practice to require military recruiters to follow billeting
procedures applicable to soldiers to obtain quarters in public inns.101 In
addition, one English case decided shortly after the U.S. Bill of Rights was
ratified expressly held that military recruiters were subject to the
jurisdiction of military courts, relying heavily on the importance of
protecting the civilian sphere from military authority.102
Recruiting, however, represents perhaps the most vital of peacetime
intersections between the civilian and military worlds. As Representative
Solomon himself urged, all branches of the military depend upon
successful recruiting during peacetime to be prepared to respond to military
crises, the onset of which cannot always be planned well in advance.103
Against this more plausible military necessity for access to the civilian
100. See, e.g., Letter from Joseph Hawley to Elbridge Gerry (Feb. 18, 1776), in 5 THE
FOUNDERS’ CONSTITUTION, supra note 39, at 216.
I hope, sir, you will by no means forget to endeavour that there be the
most peremptory and absolute order and injunction on all the generals
and officers of the American army, that quarters for the army or any part
of them, shall in no case be impressed, but by the intervention of a civil
magistrate . . . .
Id. But see THE DECLARATION OF INDEPENDENCE para. 3, cl. 13 (U.S. 1776) (“He has
combined with others to subject us to a jurisdiction foreign to our constitution, and
unacknowledged by our laws; giving his Assent to their Acts of pretended
Legislation: For quartering large bodies of armed troops among us.” (emphasis
added)).
101. See Trial of Paul Jenkinson, 16 Jan. 1771, OLD BAILEY PROCEEDINGS, available at
http://www.oldbaileyonline.org/facsimiles/1770s/177101160035.html. (“The prisoner
came to my house with a billet as a recruiting serjeant . . . .”).
102. See Grant v. Gould, 126 Eng. Rep. 434, 452 (Ex. Ch. 1792). The court determined
that the recruiter was effectively a “soldier” because he received pay to perform
services on behalf of the military. “[A] person in pay as a soldier is fixed with the
character of a soldier; and if once he becomes subject to the military character, he
never can be released, but by a regular discharge.” Id.; see id. at 450.
It is one object of that act to provide for the army; but there is a much
greater cause for the existence of a mutiny act, and that is, the
preservation of the peace and safety of the kingdom: for there is nothing
so dangerous to the civil establishment of a state, as a licentious and
undisciplined army . . . .
Id.
103. In proposing his amendment, Representative Solomon argued that “the fact that is
most important is simply this: recruiting is where readiness begins. Recruiting is the
key to an all-volunteer military.” 140 CONG. REC. H3861 (daily ed. May 23, 1994)
(statement of Rep. Solomon).
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world, the comparatively less persuasive necessity of permitting military
exercises or lodging on private property during peacetime might seem to be
the real and only danger against which the Third Amendment’s protections
were aimed.
But the appeal of this argument is limited when its conflation of
“necessity” with “convenience” is recognized. As an empirical matter, the
military has been able to meet and exceed recruiting quotas,
notwithstanding the failure of some schools to consent to a recruiting
presence on campus.104 As a practical matter this makes sense, in light of
104. See, e.g., 150 CONG. REC. H1709 (daily ed. Mar. 30, 2004) (statement of Rep.
Meehan).
This bill is a drastic solution to a problem that I do not think even exists.
In fact, there is no crisis in military recruiting on student campuses or
anywhere else in the country. The Defense Department has reported to
our committee that they are exceeding all of its recruitment and
retention goals in each of the active duty services since 2001 and is
actively downsizing certain specialties requiring advanced degrees.
Id.
Recruiting and retention numbers became more erratic recently as American
operations in Iraq persisted. In early 2005, for example, a number of dramatic
recruiting shortfalls were reported, although numbers rebounded later in the year. See,
e.g., Robert Burns, Army Headed to Recruiting Shortfall, ASSOCIATED PRESS ONLINE,
June 8, 2005, http://abcnews.go.com/US/wireStory?id=832456 (noting that, as of
June, “the Army is at barely 50 percent of its goal” and that the Army “appears likely
to fall short of its full-year recruiting goal for the first time since 1999”); Donna
Miles, July Recruiting, Retention Figures Reflect Continued Success,
http://www.defenselink.mil/
AM. FORCES INFO. SERV., Aug. 10, 2005,
news/Aug2005/20050810_2387.html (reporting that the “Army, Marine Corps and
Air Force met or exceeded their goals for the month, and the Navy achieved 99
percent of its July goal”); Donna Miles, June Recruiting, Retention Stats Up for All
Services, AM. FORCES INFO. SERV., Jul. 11, 2005, http://www.defenselink.mil/news/
Jul2005/20050711_2034.html (noting that “[r]ecruiting and retention rates were up in
June for all the services” and that “the Army outrecruited all the other services in the
active component, reaching 109 percent of its mission by enlisting more than 6,157
new soldiers”); Donna Miles, DoD Won’t Resort to Draft or Sacrifice Quality
To Boost Numbers, AM. FORCES INFO. SERV., June 10, 2005,
http://www.defenselink.mil/news/Jun2005/20050610_1683.html (“The Navy, Marine
Corps and Air Force all met or exceeded their May recruiting goals, but the Army fell
short by 25 percent. During May, the Army had hoped to recruit 6,700 new members
but missed [the] mark by 1,661 recruits, DoD officials said today.”).
Regardless where actual recruiting numbers stand, defenders of the Solomon
Amendment point to an independent reason for its utility: the need to locate the “best
and brightest” students, a need they say would be compromised if military recruiters
lost access to entire campuses. See Uri Friedman, Military Officials Defend
Recruiting Practices, DAILY PENNSYLVANIAN (Univ. of Penn., Phila., Pa.), Jan. 20,
2005, available at http://www.dailypennsylvanian.com/vnews/display.v/ART/2005/
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01/20/41ef597c428a1 (quoting one recruiting officer as saying, “We need the best and
brightest people when we’re facing daunting situations of life and death.”). Law
schools serve as somewhat doubtful reserves of recruits that would enter into “life and
death” situations. In 2002, for example, the Army drew only 3.9% of its recruits from
individuals aged twenty-four, while drawing 72.1% of its recruits from individuals
aged seventeen to twenty-one. OFFICE OF THE ASSISTANT SEC’Y OF DEF., PERS. &
READINESS, POPULATION REPRESENTATION IN THE MILITARY SERVICES (2002),
available at http://www.dod.mil/prhome/poprep2002/chapter2/c2_age.htm. Similarly,
only 10.6% of its recruits had any college experience. Id. Recruiters nonetheless insist
that access to the best and brightest students at these schools is essential for the
vitality of the Judge Advocate General (JAG) Corps. See Pope, supra note 7 (quoting
one JAG recruiter as saying “it’s incredibly vital . . . to have the best and brightest and
most dedicated soldiers and airmen, and JAGs who are advising them, on everything
from implementing the Geneva Conventions to prosecuting our military members
who run afoul of the Uniform Code of Military Justice”). It is difficult to predict
whether recruiting opportunities would dry up in a post-Solomon world in part
because it is far from clear that positions in the JAG Corps would be any less coveted.
The Navy JAG Corps brags, for example, that “[c]ompetition for [JAG] commissions
is extremely keen,” explaining that “[s]election boards competitively screen
candidates against the applications of their peers and are limited to a maximum 50%
selection rate at each Board.” U.S. NAVY, Judge Advocate General’s Corps Careers
FAQs, http://www.jag.navy.mil/Careers/CareersFAQ3.htm # 26 (last visited Nov. 8,
2005).
It is also impossible to know how many schools would close their campuses to
military recruiting in the event of a decisive defeat of the Solomon Amendment in
court. Most schools appear to be awaiting the Supreme Court’s decision in the FAIR
case before making a final decision about excluding recruiters from campus. See
Kelly Field, High Court to Hear Case on Military Recruiting, CHRON. OF HIGHER
EDUC., May 13, 2005, at A1, A21, available at http://chronicle.com/
free/v51/i36/36a00101.htm (noting that only three law schools publicly reinstated
their restrictions on military recruiters after the Third Circuit’s decision in FAIR).
Even among law schools that have publicly restored military recruiting exclusions,
their parent institutions appear to be waiting for the Supreme Court’s final say. See
Jocelyn Courtney, Students Await Decision on JAG, YALE DAILY NEWS
(Yale Univ., New Haven, Conn.), Jan. 19, 2005, http://www.yaledailynews.com/
article.asp?AID=27863 (quoting pro bono counsel to Yale students as saying that the
University is “still in a wait mode” after the Third Circuit’s ruling); Staff Editorial,
Defeating the Solomon Amendment, HARV. CRIMSON (Harv. Univ., Cambridge,
Mass.), Dec. 2, 2004, http://www.thecrimson.com/article.aspx?ref=504818
(lamenting that “University President Lawrence H. Summers declared that Harvard
would not be joining the coalition of 20 other law schools in challenging the
government in court,” and that he had not followed the Law School’s example in
restricting military recruiting following the Third Circuit FAIR ruling). The wait-andsee approach appears to be the norm among universities that have gone on the record,
although at least one school has said it will continue to invite recruiters on campus
regardless of Solomon’s ultimate fate. See Chanakya Sethi, Solomon Amendment
Ruling Will Not Affect University, DAILY PRINCETONIAN (Princeton Univ., Princeton,
N.J.), Dec. 1, 2004, at 1, available at http://www.dailyprincetonian.com/archives/
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the fact that public grounds—including military recruiting offices105—
remain open to military recruiters, as does any private property if the owner
consents to their presence. This reality, coupled with the historical and
contemporary ends served by antiquartering norms, substantially
undermines the best argument to define “soldier” in a way that would not
cover military recruiters.106
Furthermore, it is worth remembering that the right to exclude is a
default rule in the case of private property; the Third Amendment’s
necessity arose out of the fact that British soldiers were quartered upon
Colonial houses. Its function was to clarify that the right to exclude
2004/12/01/news/11607.shtml; see also Leigh Jones, Military on Campus Splits Law
Faculties, NAT’L L.J., Sept. 5, 2005, at 6, available at http://www.westlaw.com (enter
citation “9/5/20005 NLJ 6, (Col. 1)”) (noting “a growing schism among law school
faculties divided about the military’s ‘Don’t Ask Don’t Tell’ sexual orientation policy
and its role in recruiting law school students”). If the past is any guide, the reaction to
a Supreme Court decision striking down the Solomon Amendment would not be farreaching. See Kara S. Suffredini, Don’t Ask, Don’t Tell . . . Don’t Teach?: Law
Schools, Military Hiring, and Gay Rights, LEGAL TIMES, Oct. 13, 2003, at 51,
available at http://www.westlaw.com (enter citation “10/13/2003 LEGALTIMES 51”)
(“Most law schools have never disallowed military recruiters from accessing or
recruiting their students.”).
In this context it is worth pointing out that even schools that have barred military
recruiting on campus in the past have nonetheless worked with the military to provide
alternative arrangements to facilitate recruiting off of campus for the benefit of
interested students. See id.
Law schools used different tactics to strike this delicate balance. Some
organized JAG interviews off campus at nearby hotels; some facilitated
the arrangement of interviews only through their dean’s offices, rather
than through career services facilities; and some refused to assist in
posting JAG fliers, while also refusing to allow them to be removed
once posted.
Id.
105. Defense Department Under Secretary for Personnel and Readiness David S. C. Chu
disputes the effectiveness of relying merely on walk-ins, however. See Kathleen T.
Rhem, Potential Recruits List Critical to ‘All-Recruited’ Force, AM. FORCES
INFO. SERV., June 24, 2005,
http://www.defenselink.mil/news/Jun2005/
20050624_1834.html. “That’s not how it works. People have to be made aware that
we’re interested in them, that they are good candidates for military service. And we
have to convey to them what the attributes of military service entail.” Id. (quoting
Chu) (internal quotation marks omitted).
106. Representative Solomon’s words bear repeating here as well: “Recruiting is the key to
an all-volunteer military.” 140 CONG. REC. H3861 (daily ed. May 23, 1994)
(statement of Rep. Solomon) (emphasis added). It is not self-evident that the only
proper way to aid ineffective recruiting efforts is to authorize more invasive recruiting
efforts in lieu of less politically palatable solutions, such as a draft.
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extended so far as to apply even against the military, regardless of any
countervailing government interest, in times of peace; it was not to create a
wholly new right. That its language reflected the specific Colonial
experience should not be construed as a limit on the provision, as the right
to exclude soldiers is not an “exception” to the general right to exclude, but
rather a component of it. Thus, it would be an odd conclusion to draw from
the Third Amendment’s language that the use of “soldier” specifically
meant that its protections did not apply against other military officials.
In short, the antiquartering right by design and in historical
application applies to any person acting under the auspices of military
authority. The Third Amendment’s use of “soldier” thus was not employed
to single out a particular type of military agent, and it cannot be construed
to exclude military recruiters from its reach.
B. University Property Is Protected Under the Third Amendment
By its terms, the Third Amendment bars quartering on “any house.”
The word “house,” of course, strongly suggests that the amendment’s
protection extends to buildings only, but the word “any” may actually be of
greater significance, possibly indicating a desire to bar the military from
forcing soldiers even on the public houses—inns, taverns, and places of
entertainment—that had always remained available to it in the English
experience. An analysis of “any house” yields several possibilities relating
to the private school’s ability to assert an antiquartering right under the
Third Amendment: the most favorable interpretation would find a right to
exclude the military from any corner of campus, even from unenclosed
places; the least would find no right to exclude whatsoever. A modest
reading finds a Third Amendment protection of privately owned university
buildings, including dormitories, lecture halls, and any other building fit for
human occupation.
What little scholarship there has been on the Third Amendment has
often inserted the word “private” into its text without explanation.107 This
analytical shortcut is sensible in light of the antiquartering right’s historical
evolution. As early as the seventeenth century, English statutes providing
for wartime quartering had limited the permissible venues to “public
houses”—inns, taverns, and houses of entertainment.108 When Parliament
107. See, e.g., SCHWOERER, supra note 51, at 199 (“Article 3 . . . assert[s] that soldiers
might not be quartered in private houses without the consent of the owner . . . .”);
Frederick Schauer, Constitutional Invocations, 65 FORDHAM L. REV. 1295, 1300
(1997) (“[T]he rarely interpreted Third Amendment . . . prohibits the quartering of
soldiers in private houses during time of peace without the consent of the
owner . . . .”).
108. See, e.g., Act for Carrying on a War with France, 1692, 4 & 5 W. & M., c.13, § 18(a)
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provided for quartering in the Colonies in 1765,109 it similarly limited
quartering, and even the infamous Quartering Act of 1774110—one of the
so-called “intolerable acts” passed on the eve of the American
Revolution—did not expressly provide for quartering in inhabited private
houses.111 That pattern lends support to the proposition that the
antiquartering right inheres uniquely in private houses. Such a proposition,
however, is unmistakably discordant with the Third Amendment’s text.
One way of harmonizing the text with the content of the right is to
read the amendment’s use of “any” as embracing all physical structures—
public and private. At least two facts recommend such a reading. First,
English quartering statutes, including the Colonial Quartering Acts in
particular, evinced an understanding that the quartering issue was
sufficiently sensitive that the houses in which soldiers were to be quartered
needed to be named with some specificity. The Quartering Act of 1774, for
example, specifies “uninhabited houses, out-houses, [and] barns”112 as
possible sites of makeshift military housing. Thus, had the Third
Amendment’s framers sought to specify a category of houses that were to
remain fit for quartering, they certainly had the tools to do so, and the
settled upon use of the word “any” against this backdrop is telling.
Second, notes from the framing debate suggest that at least
Representative Sherman understood the language to cover all houses—
public and private. Arguing that the quartering protection was unnecessary,
he noted that, “[i]n England, where they paid considerable attention to
private rights, they billeted the troops upon the keepers of public houses,
and upon private houses also, with the consent of the magistracy.”113 At
least part of that observation would have been superfluous had the Third
Amendment been limited solely to private houses. The structural purposes
(Eng.).
109. See Quartering Act, 1765, 5 Geo. 3, c. 33 (Eng.), available at http://www.yale.edu/
lawweb/avalon/amerrev/parliament/quartering_act_165.htm.
110. See Quartering Act, 1774, 14 Geo. 3, c. 54 (Eng.), available at http://www.yale.edu/
lawweb/avalon/amerrev/parliament/quartering_act_1774.htm.
111. See id. (providing only in cases in which barracks were insufficient to house soldiers
that “it shall and may be lawful for the governor of the province to order and direct
such and so many uninhabited houses, out-houses, barns, or other buildings, as he
shall think necessary to be taken . . . and make fit for the reception of such officers
and soldiers ”); see also J. Alan Rogers, Colonial Opposition to the Quartering of
Troops During the French and Indian War, 34 MIL. AFFAIRS 7, 10 (1970) (noting that
under the 1765 Quartering Act, “Quartering in private homes was scrupulously
avoided.”).
112. See Quartering Act, 1774, 14 Geo. 3, c. 54 (Eng.), available at http://www.yale.edu/
lawweb/avalon/amerrev/parliament/quartering_act_1774.htm.
113. Sherman, supra note 39.
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of the amendment as a boundary marker between the military and civilian
spheres further supports a reading of “any” that means “any” rather than
just “any private” house.
A bolder reading would go further, finding very little meaning
contained in “house” and placing all the emphasis on “any.” This reading
of the Third Amendment would extend its protections to all private
property, inside and out of buildings, regardless of how open to the public
such property traditionally had been. As a matter of policy and theory, this
bolder reading makes some sense. Many of the abuses historically linked to
quartering could occur as easily in an open space as indoors; likewise, if
the Third Amendment is viewed as securing a property right, it makes at
least as much sense to extend the right to all private property as to limit it
strictly to buildings. As a matter of text of the amendment and history of
the right, however, the bold reading is problematic. As I discussed above,
there is scant evidence of a historical antiquartering right that extended to
property outside of buildings.114 As a textual matter, the bold approach
reads “house” entirely out of the amendment.115
A very narrow reading of the amendment, in contrast, would limit the
Third Amendment’s protections to those structures most likely evoked by
the word “house” in its modern usage; that is, the private residence. This
approach squares theoretically with the privacy-based view of the Third
Amendment. As a textual matter, it places far less relevance on the word
“any” than do the other readings, but unlike the bold approach it merely
renders “house” unremarkable rather than reading it out of the amendment.
The reading sits uncomfortably with the history and policy considerations
underlying the amendment, however. It would leave soldiers free to
commit the kinds of abuses that the right asserted in the 1628 petitions
114. See supra text accompanying note 91.
115. As I briefly canvass above, constitutional analysis is no stranger to interpretations that
fly off the modern track of statutory construction. See supra note 92. The interpretive
move employed by the Supreme Court in Hans v. Louisiana, 134 U.S. 1 (1890),
might be most apt to accomplish a reading of the Third Amendment that places no
emphasis on the word “house.” Although the Eleventh Amendment by its terms bars
federal courts only from entertaining suits against states by citizens of other states, the
Court in Hans extended that bar to suits by citizens against their own states. In doing
so, it strongly suggested that the language of the Eleventh Amendment was simply a
reflection of the facts of the case that had prompted its “almost unanimous[]
propos[al].” Id. at 11. In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), a divided
Court interpreted Article III’s text to grant federal courts jurisdiction to hear a suit
brought against a state by a citizen of another state. Aiming to avoid Chisholm’s
mistake, the Hans Court focused on the sovereign immunity principle animating the
Eleventh Amendment rather than its text. See Hans, 134 U.S. at 12. The problem with
applying such a method in the Third Amendment context, however, is that the precise
scope of the underlying principle is not as clearly defined.
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sought to curb as long as they were committed in any place but private
residences, the same kinds of abuses that were later complained of in
Colonial times. Such a Third Amendment would also prove a fairly weak
wall between civil and military spheres, diminishing its structural function
within the larger constitutional design. Perhaps most significantly, such a
narrowly construed protection would do nothing to protect against the
arrangement secured by the dreaded Quartering Act of 1774, which did not
provide for quartering in private residences.116
At a minimum, then, the Third Amendment must reach as far as the
apparently mainstream view, which would protect private houses from
undesired peacetime quartering. If its protections extend no further than
this view holds, the significance of the word “any” must simply be that
every kind of private house is covered—that is, not simply the private
residences that receive the strongest protections of the Fourth Amendment,
but also the “uninhabited houses, out-houses, [and] barns” that England
presumed to set aside for its troops during the Colonial period, as well as
all other sorts of private buildings.117 As such, the amendment’s “any”
language enacts the constable’s theory from Parkhouse: “If it be not a
private house, it must be a public-house; there are no middle sort of
houses.”118 This view has the benefit of plausibly explaining the Third
Amendment as a proportional reaction to the Colonial experience119
without injecting any problems or innovations into the theoretical basis of
the right, which would extend as far as the general right to exclude and no
further.120
As such, the Third Amendment is capable of reaching university
116. See supra note 111 and accompanying text.
117. See Quartering Act, 1774, 14 Geo. 3, c. 54 (Eng.), available at http://www.yale.edu/
lawweb/avalon/amerrev/parliament/quartering_act_1774.htm.
118. Parkhouse v. Forster, 87 Eng. Rep. 746, 747 (K.B. 1699). Indeed, one specialty
dictionary defining terms used in the Colonial era defines “house” to mean university
buildings: “[A] college in a university. The rules at Harvard in 1646 warned scholars
not to ‘transgresse any of the Lawes of God or the House.’ Harvard still has
‘houses.’” RICHARD M. LEDERER, JR., COLONIAL AMERICAN ENGLISH 116 (1985).
119. There is some reason to believe that the Bill of Rights was designed to extend to no
special lengths, as Madison sought to introduce only “those provisions for the security
of rights, against which I believe no serious objection has been made by any class of
our constituents.” James Madison, Speech of James Madison to the House of
Representatives (June 8, 1789), in 5 THE FOUNDERS’ CONSTITUTION, supra note 39, at
24.
120. A potential issue would thus arise in recruiting programs that are substantially housed
off-campus, which is not uncommon. See Suffredini, supra note 104. (“[I]n many
cases, law schools do not have facilities that accommodate on-campus recruiting.”). I
leave that discussion aside as it would likely depend at least in part on the vicissitudes
of varying state laws.
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buildings, depending on the scope of the right to exclude under the relevant
state law. The Supreme Court held long ago that the fact that a private
university serves a public purpose does not convert it into an organ of the
state or make its property somehow public. In Trustees of Dartmouth
College v. Woodward, the Supreme Court entertained a challenge to laws
recently passed by the New Hampshire legislature that sought to exert a
degree of state control over the governance of the college.121 New
Hampshire’s attorney general argued part of the case against the college,
advancing the view that “[c]harters to public corporations for purposes of
public policy are necessarily subject to the legislative discretion, which
may revoke or modify them as the continually fluctuating exigencies of the
society may require.”122 He was careful not to argue that the college’s
property was by virtue of this relationship converted into state-owned
property;123 instead, he suggested that the effect was to convert the property
into a sort of public trust: “The use unquestionably belonged to the people
of New-Hampshire, who were the cestuy que trusts.”124
The Court addressed these contentions in property terms. It asked
“For whose benefit the property given to Dartmouth College was
secured?”125 and elaborated:
Do these expressions [in the College charter] bestow on NewHampshire any exclusive right to the property of the college, any
exclusive interest in the labours of the professors? Or do they
merely indicate a willingness that New-Hampshire should enjoy
those advantages which result to all from the establishment of a
seminary of learning in the neighbourhood?126
It rejected the public trust argument and held that “the whole legal
interest is in the trustees,” noting that “[t]he law of this case is the law of
all” corporations created for educational purposes.127 Concurring in the
judgment, Justice Story separately emphasized that although “a private
corporation may well enough be denominated a public charity . . . no one
121. 17 U.S. (4 Wheat.) 518, 626 (1819) (describing “three acts of the legislature of NewHampshire, the most material of which was passed on the 27th of June, 1816, and is
entitled, ‘an act to amend the charter, and enlarge and improve the corporation of
Dartmouth College’”).
122. Id. at 609.
123. See id. at 614 (“If before the revolution it was beneficially vested in any private
individuals, or corporate body, I do not contend that the revolution devested it, and
gave it to the State.”).
124. Id.
125. Id. at 639.
126. Id.
127. Dartmouth Coll., 17 U.S. (4 Wheat.) at 645.
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would imagine that [it] ceased to be private, or the funds became public
property.”128
Whether the Third Amendment’s protections reach the buildings of
college campuses is not entirely determined by the Dartmouth College
case. State law figures heavily in the composition of private property
rights,129 and some states have limited the right to exclude in ways that, if
applied to the university setting, could bear on the exercise of the
antiquartering right. In PruneYard Shopping Center v. Robins, for example,
the Supreme Court affirmed a decision of the California Supreme Court
holding that the state’s free speech guarantee trumped a shopping center’s
right to exclude a group of high school students who sought to circulate
petitions for a political cause.130 It remains to be asked even in these cases,
however, whether the special concerns animating the Third Amendment’s
protections would warrant their continued application even in the face of
scaled back exclusion rights. But that question would have to be resolved
on a case-by-case basis and is beyond the scope of this discussion. I
venture only so far here as to argue that, in cases in which colleges and
universities retain the right to exclude generally under state law, that right
must also include the right to exclude soldiers, including recruiters.
C. Visiting Recruiters Are “Quartered” on Campus for Third
Amendment Purposes
In the simplest sense, “to quarter” troops is to station them
somewhere pursuant to military orders. The traditional Colonial American
quartering tale131 tells of troops taking up empty (or even occupied) rooms
128. Id. at 670 (Story, J., concurring).
129. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
Property interests, of course, are not created by the Constitution. Rather,
they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law—rules or understandings that secure certain benefits and that
support claims of entitlements to those benefits.
Id.
130. 447 U.S. 74, 83-84 (1980). Specifically, the California Supreme Court had held that
“the California Constitution protects ‘speech and petitioning, reasonably exercised, in
shopping centers even when the centers are privately owned.’” Id. at 78 (quoting
Robins v. PruneYard Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979)).
131. I say “tale” because quartering was a convenient bogeyman in Colonial propaganda,
and as a result it is difficult to separate fact from fiction in reports of quartering from
the Revolutionary era. See Don R. Gerlach, A Note on the Quartering Act of 1774, 39
NEW ENG. Q. 80, 80 (1966) (suggesting that evidence of quartering in inhabited
private houses “still needs to be marshaled”); id. at 87 (complaining of “exaggerated
allegations and inadequate explanations regarding” the actual execution of the
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in the houses of private citizens, making demands on their owners for
provisions and, of course, abusing and even killing their hosts. As a result,
the presence of military recruiters on a college campus may not at first
blush strike the conditioned believer of these tales as an instance of
“quartering.” Closer examination, however, reveals that this view of
quartering unnecessarily adorns the concept with the incidents particular to
the mode of quartering soldiers in that manner. English cases decided prior
to and around the time of American independence employ a usage of the
term that implies a much broader definition, one that squares more readily
with the twin purposes of the Third Amendment—the protection of private
property and the separation of the military and civilian spheres. I treat these
cases in three categories and then discuss a few additional sources.
The first category of cases demonstrates the express use of quartering
in this “to station” sense. These cases typically speak of a regiment being
quartered at a particular town (rather than in a particular inn or house).
Thus, the King’s Bench noted in Myrtle v. Beaver, for example, that “[t]he
defendant was a butcher at Brighton, where the troop was quartered.”132
These cases never include an analysis of the term, but take its meaning for
granted.
The second category of cases implies a meaning of “to quarter” that
resists any duration requirement. These cases suggest that, for example,
spending the night is not an essential element of quartering. At one level of
abstraction, a series of English cases shows that quartering—owing in all
likelihood to its transient nature—did not establish residency in the town
where a soldier was quartered. This determination was important because,
upon their discharge from service, many soldiers were destitute and became
Quartering Act of 1774).
132. 102 Eng. Rep. 53, 53 (K.B. 1800). Other cases decided over the course of at least 150
years employ similar usage. See, e.g., Cook v. Nethercote, 172 Eng. Rep. 1443, 1444
(K.B. 1834) (“[T]here was a disturbance at Eton, and . . . several officers of the
regiments of guards, which were quartered at Windsor, were ringing and knocking at
many of the doors at Eton . . . .”); Souldier, Theft with Violence:
Highway Robbery, 30 Apr. 1679, OLD BAILEY PROCEEDINGS, available at
http://www.oldbaileyonline.org/facsimiles/1670s/16790430005.html. (“A Souldier
Quartered at Kensington, with several others unknown, in the Night set upon a person
on the High-way, returning thither from London, led him into a Gravel-pit, took away
6 or 7 shil. (all the Money he had about him) and several Cloaths which he was
carrying home.”) Id. Still other cases employ a usage that is so general that the
particular meaning of quartering soldiers in houses could not be intended. In one case
addressing the issue whether sergeants are considered soldiers for purposes of liability
for debts under the Mutiny Act, one of the parties argued that, as “serjeants are
enlisted as common soldiers, quartered as such, under the same discipline, and
equally entitled to Chelsea hospital[,]” they merited the same privileges from debts as
soldiers. Lloyd v. Wooddall, 96 Eng. Rep. 15, 15 (K.B. 1748).
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charges of the city of their residence.133 The central issue in these cases was
almost uniformly a question of evidence; soldiers could establish a record
of their last city of residence by following a procedure that, pursuant to the
quartering law, had to be administered by justices of the peace from the
town where the soldier was quartered. Any number of defects that could
arise in this process would nullify the residency document and make it
inadmissible in court.134 The relevant point for the purposes of defining
quartering is the implicit one that the concept contemplates something less
than a permanent occupation.
One of these cases more directly establishes the point that an
overnight stay is not an essential component of quartering. In The King v.
Hellingley, the King’s Bench addressed the settlement question regarding a
soldier
quartered at Brighton with his regiment, which then lay in the
barracks there. He had permission from his officers to sleep out
of the barracks, for the purpose of being with his family; and
hired a house at Brighton by the week, . . . which house he so
continued to occupy . . . for three months.135
This passage is significant because it warrants the conclusion that a soldier
is not less quartered simply because he spends the night outside his station.
But it is also significant in two other ways: First, it is another example of
the express use of “to quarter” in the sense of “to station” (he was
“quartered at Brighton”) while simultaneously using a different verb— to
133. This residency rule, set forth by the same Mutiny Act that governed quartering more
broadly, also served the function of preventing additional financial burdens from
falling on the same towns that had to bear quartering in the first place.
The law requiring towns to support the residential poor passed in 1662. Act for the
Better Relief of the Poor of this Kingdom, 1662, 13 & 14 Car. 2, c. 12 (Eng.),
available at http://users.ox.ac.uk/~peter/workhouse/poorlaws/1662intro.html. For a
brief historical summary of England’s “Poor Law,” see THE POOR LAWS,
http://users.ox.ac.uk/~peter/workhouse/poorlaws/poorlaws.html (last visited Nov. 8,
2005).
134. See, e.g., The King v. Clayton le Moors, 101 Eng. Rep. 391 (K.B. 1794). For a brief
explanation of the purpose of the procedure, see id. at 394 (Lawrence, J.).
One inconvenience intended to be remedied was, that of taking a soldier
out of his quarters for the purpose of his being examined respecting his
settlement; and in order to guard against this inconvenience, the Act
directs the magistrates who take the soldier’s examination, to give him a
copy of it, to be by him delivered to his commanding officer . . . that it
may be afterwards produced when required, to prevent the soldier being
taken from his quarters.
Id.
135. 103 Eng. Rep. 691, 691 (K.B. 1808).
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“occupy”—to indicate where the soldier lodged; second, it illustrates that,
even when “quartered” is used to mean the housing of troops, the word is
not limited in its application to the private civilian dwelling (the
“regiment . . . lay in the barracks”).
I would not be presenting an accurate picture if I omitted mention of
the third category of cases, which exhibits the use of “to quarter” in the
sense employed in the American tradition of quartering tales—namely, the
quartering of troops in houses where they spent the night. And indeed there
is no paucity of examples of this usage.136 These examples hardly constrain
the application of the verb in other constructions, however, as the previous
categories of cases demonstrate. And there is no Independence-era case
from either the United States or England that expressly limits the
antiquartering right to the context of imposing soldiers on civilian homes.
Two other sources are worth mentioning. The first, The Second Part
of the Principles of the Art Military, is a seventeenth-century publication
that illustrates “the Forme of Quartering of a Regiment.”137 The work uses
the verb “to quarter” and the noun “quarter(s)” in the broad sense in a
number of places. Perhaps most tellingly, it refers to various grounds of the
military camp as “quarters” notwithstanding their lack of fitness for
lodging by soldiers (“the Market place,” for example).138 Elsewhere, the
manual elaborates upon the Castra Temporaura, a form of quartering an
army in a way such that it “staies not long in a place, but removes and
changes every day,” distinguishing it from the Castra Strataria, the “settled
Campe,”139 lending further support to the idea that “quartering” does not
carry any implicit duration requirement. Owing to its military origins, this
source adds a dimension of authority to the monoculture of case law
outlined above.
Second and finally, dictionaries support the “to station” definition of
“to quarter,” albeit unevenly. The Oxford English Dictionary defines “to
136. See, e.g., Regina v. Gilchrist, 174 Eng. Rep. 482, 482 (K.B. 1841) (“On the 17th of
September, I was quartered at the Ship public-house, in Charles-street,
Westminster.”); The King v. Fuller, 168 Eng. Rep. 495, 495 (K.B. 1797) (“Lowe . . .
was going from his house in Swan’s Rents . . . to the Rose and Crown public-house
on Kew Green, where he was then quartered.”).
137. MAURICE PRINCE OF ORANGE & FREDERICK HENRY PRINCE OF ORANGE, THE SECOND
PART OF THE PRINCIPLES OF ART MILITARY, PRACTISED IN THE WARRES OF THE UNITED
PROVINCES CONSISTING OF THE SEVERALL FORMES OF BATTELS 27 (2d ed., Henry
Hexham ed., Delf in Holeand, Antony of Heusdon 1642).
138. Id. at 29; see id. at 32 (listing the “severall Quarters in this Campe,” including the
“quarter of the Carriages and Waggons” and the “quarter for Merchants, Tradsman
and Victulars”).
139. Id. at 21.
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quarter” as “to station, place or lodge in a particular place,”140 which seems
to support the broad definition, but it goes on to add, in defining “to quarter
on” or “upon,” that the meaning is “[t]o impose (soldiers) upon (a
householder, town, etc.), to be lodged and fed.”141 The Dictionary of
Military Terms defines the verb to “quarter” simply as “[t]o provide
shelter,”142 and it defines the noun “quarter” alternatively as “[a]n assigned
or proper station” or “[h]ousing for military personnel, such as barracks.”143
The Dictionary of the Modern United States Military defines “to quarter”
as to “house soldiers in private dwellings,” adding that the “practice is
forbidden in peacetime in the United States.”144 In short, these sources
seem to embrace both definitions.
The ranging dictionary definitions in fact serve my point that “to
quarter” takes on different meanings in different contexts. Thus, it is not
enough simply to read the text of the Third Amendment; to know what it
means to quarter a soldier “in any house,” resort must be had to the policy
underpinnings of the right. It is then easy to see that little benefit is derived
from a cramped reading of “to quarter” in light of the Third Amendment’s
primary concerns: the protection of private property and civilian authority
from military intrusion. The English courts as a rule construed the authority
to quarter narrowly for precisely these reasons.145 The same presumption
should be afforded here.
The novelty of this application of the antiquartering right derives
directly from the novelty of the military’s occupation of private property in
the manner conceived by the Solomon Amendment. Absent special
circumstances, most would agree that the military cannot simply park an
army tank on private property because it is convenient to do so. Parking
recruiters on private campuses is no different. Although the armed forces
have recruited on campuses for decades, organized resistance to it is
relatively recent and, under the Third Amendment, it is the resistance that
is relevant to the violation of the right. And it is not any less a right for
having only recently been asserted; as a Member of Parliament observed in
1753, “a standing army, which is always the harbinger of slavery, is now
become so familiar to us, that no man could expect attention, were he to
140. 8 OXFORD ENGLISH DICTIONARY 30 (W.A. Craigie ed., 1914).
141. Id.
142. DICTIONARY OF MILITARY TERMS 201 (Trevor N. Dupuy et al. eds., 2d ed. 2003); see
also MilTerms.com, http://www.milterms.com/letter.php?s=50&q=Q (last visited
Nov. 8, 2005) (defining “quartering” as “[p]roviding shelter for troops, headquarters,
establishments, and supplies”).
143. DICTIONARY OF MILITARY TERMS, supra note 142, at 201.
144. STEPHEN F. TOMAJCZYK, DICTIONARY OF THE MODERN UNITED STATES MILITARY 448
(1996).
145. See supra text accompanying note 56.
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propose the most certain and infallible scheme for getting rid of it . . . .”146
Various law schools now find themselves searching for just such a scheme.
They could rely on the Third Amendment to eject recruiters from their
campuses without further analysis, were it not for the fact that they receive
federal funding they would rather keep and that our country is arguably in a
“time of war.” Accordingly, I now turn to these issues.
III. “CONSENT” AT GUNPOINT: THE CONDITIONALITY ISSUE
Spending conditions supply Congress with one of its most powerful
tools. With occasional exceptions, the Supreme Court has long and
repeatedly approved the strings that come attached to sundry forms of
federal funding,147 whether to states148 or private recipients.149 Congress’s
power to attach these strings derives from its broader power under the
Spending Clause to “provide for the common Defence and general
146. William Beckford, Debate in the Commons of the Number of the Land Forces for the
Year 1753, reprinted in 14 COBBETT’S PARLIMENTARY HISTORY OF ENGLAND: FROM
THE NORMAN CONQUEST, IN 1066 TO THE YEAR, 1803, at 1278 (1807).
147. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1980).
[O]ur cases have long recognized that Congress may fix the terms on
which it shall disburse federal money to the States.”). But see, e.g.,
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548 (2001) (“Congress
was not required to fund an LSC attorney to represent indigent clients;
and when it did so, it was not required to fund the whole range of legal
representations or relationships. The LSC and the United States,
however, in effect ask us to permit Congress to define the scope of the
litigation it funds to exclude certain vital theories and ideas. The
attempted restriction is designed to insulate the Government’s
interpretation of the Constitution from judicial challenge. The
Constitution does not permit the Government to confine litigants and
their attorneys in this manner.
Id.
148. See, e.g., South Dakota v. Dole, 483 U.S. 203, 211 (1987).
Our decisions have recognized that in some circumstances the financial
inducement offered by Congress might be so coercive as to pass the
point at which ‘pressure turns into compulsion.’ Here, however,
Congress has directed only that a State desiring to establish a minimum
drinking age lower than 21 lose a relatively small percentage of certain
federal highway funds . . . . We cannot conclude . . . that a conditional
grant of federal money of this sort is unconstitutional . . . .
Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937))).
149. See, e.g., Rust v. Sullivan, 500 U.S. 173, 196 (1991) (“Petitioners’ reliance on
[unconstitutional conditions] cases is unavailing, however, because here the
Government is not denying a benefit to anyone, but is instead simply insisting that
public funds be spent for the purposes for which they were authorized.”).
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Welfare.”150 So often approved is this power that even the First
Amendment rarely proves an adequate stronghold from which to lay siege
on oppressive conditions.151
Ultimately, Solomon’s opponents must address the conditionality
issue. One avenue of argument would accept the nefarious constitutional
conditions doctrine on its own terms, whatever those are.152 That argument
unfolds in roughly the same pattern whether argued in First Amendment or
Third Amendment terms.153 As a result, there is no sense in canvassing that
argument here, as I have little to add to what FAIR has already argued on
this point.154 While others have “traversed gingerly” over this
150. U.S. CONST. art. I, § 8, cl. 1.
151. See supra notes 17-19 and accompanying text.
152. For background on the hopelessness of discerning a coherent doctrine from the
present range of constitutional conditions cases, see Sullivan, supra note 19; see also
Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in
Three Dimensions, 90 GEO. L.J. 1 (2001).
153. The plaintiffs could argue, for example, that the requirement under the Solomon
Amendment to admit recruiters on campus is coercive in light of the amount of
funding at stake, or that the requirement is not germane to the purposes of that
funding. Whether the underlying right is that of expressive association or freedom
from quartering does not alter the analysis in this framework.
154. See Brief for the Respondents in Opposition, at 9-13, Rumsfeld v. Forum for
Academic and Inst. Rights, Inc., No. 03-4433, cert. granted, 125 S. Ct. 1977 (May 2,
2005), available at http://www.law.georgetown.edu/solomon/documents/certopp.pdf.
I will briefly extend one of FAIR’s points here, however. The Supreme Court has
suggested in its spending conditions cases concerning the states that conditions
attached to federal grants must be “germane” to the purposes for which the money
was spent. See New York v. United States, 505 U.S. 144, 167 (1992); South Dakota v.
Dole, 483 U.S. 203, 207-08, 210-12 (1987); id. at 213-16 (O’Connor, J., dissenting).
If that requirement applies in the context of grants to private educational institutions,
Solomon’s requirements will prove a true test of the “germaneness” requirement.
Harvard University, for example, stands to lose $400 million in annual funding under
Solomon, even though much of that funding has no obvious military application. See
Hemel, supra note 3. The only plausible defense of Solomon’s far reach is that there
would be no private universities to fund were it not for a strong national defense.
But this argument proves too much. Our entire way of life and all of our liberties
depend upon a domestic tranquility that, ultimately, depends on a well-functioning
national defense force. The purpose of the Third Amendment was to ensure us that
suffering military occupation of private property during peacetime was an
unnecessary and improper mode of establishing that requisite tranquility. If
Solomon’s requirements are approved, the Third Amendment’s protections could be
entirely short-circuited. And because those protections are, in part, structural in
nature, it is especially disturbing that their fate would lie in the hands of private
parties.
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“minefield,”155 I believe the saner course is simply to avoid it, or at least
that portion of it that has so stubbornly resisted doctrinal harnesses.
Instead, the Third Amendment derails conventional constitutional
conditions analysis in a unique way. The principles underlying its
protections operate as a structural bar against the precise funding
conditions enacted by the Solomon Amendment. Textual analysis of the
Third Amendment and other constitutional provisions confirms this theory.
In other words, Congress cannot condition federal grant money—at least
dollars earmarked for civilian purposes—on the recipient’s willingness to
quarter troops. When it does so it runs afoul of the Third Amendment.
The two chief principles enshrined in that amendment inform the
more exacting textual analysis below. First, quartering elevates the military
authority above the civil. This is true even when Congress approves
quartering, because, although Congress represents private citizens, it is
these citizens that are the ultimate source of civil authority.156 The Third
Amendment would prove a rather flimsy bulwark against civil-military
entwinement if Congress could leverage resources intended for civilian use
to encourage cooperation with the military by the citizenry. In doing so,
Congress implicitly suggests that the military’s needs come first, precisely
the sort of danger Alexander Hamilton warned about in the Federalist
Papers when he discussed the dangers of a standing army.157 Many
Founders considered resistance to this sort of entwinement as one of the
more fundamental requirements of democracy.158
Second, quartering threatens the integrity of private property rights.
Although the Constitution contains no exposition on the nature or sanctity
of those rights, the Founders considered “the ‘security of Property’” to be
155. Sullivan, supra note 19, at 1416.
156. The Constitution speaks to this principle in its opening words of “We, the People,”
clarifying immediately in a clever play on words that the sovereign “We” referred to
“the People,” rather than the Crown, as the royal “We” had in England. See U.S.
CONST. pmbl.
157. See THE FEDERALIST NO. 8, at 64 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
The inhabitants of territories [in which standing armies are kept], often
the theatre of war, are unavoidably subjected to frequent infringements
on their rights, which serve to weaken their sense of those rights; and by
degrees the people are brought to consider the soldiery not only as their
protectors, but as their superiors.
158. See, e.g., President Thomas Jefferson, First Inaugural Address (Mar. 4, 1801),
available
at
http://www.yale.edu/lawweb/avalon/presiden/inaug/jefinau1.htm
(deeming the “supremacy of the civil over the military authority” as one of “the
essential principles of our Government”); see also ADAMS, supra note 37 and
accompanying text.
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“one of the ‘great obj[ects] of Gov[ernment].’”159 Accordingly, the
Supreme Court has cast a sterner eye on benefits conditioned on property
concessions than on the surrender of other rights, perhaps because of the
very physical invasion of property rights those bargains achieve.160 These
principles must inform a proper reading of the Third Amendment on its
159. Kelo v. City of New London, 125 S. Ct. 2655, 2672 (2005) (O’Connor, J., dissenting)
(quoting 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 302 (M. Farrand ed.,
1934)).
160. See Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Comm’n,
483 U.S. 825 (1987). Nollan and Dolan established that municipal linkage
requirements—which offer variances from zoning requirements in exchange for
concessions of other property rights—must exhibit an “essential nexus” between the
requirement and a legitimate government purpose. Nollan, 483 U.S. at 837. In
addition, the nexus must be tailored to the point of “rough proportionality.” Dolan,
512 U.S. at 391.
The principles at work in those cases color the analysis here but do not control it.
Quartering soldiers works a taking of sorts, a proposition that has received support
elsewhere. See Bell, supra note 41, at 146-49; Eugene Kontorovich, The Constitution
in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies, 91 VA.
L. REV. 1135, 1164-67 (2005). But the linkage cases prove messy transplants here,
where the government conditions not variances from valid zoning laws but large sums
of money. Indeed, had the California Coastal Commission conditioned a large sum of
money on the Nollans’ willingness to grant an easement across their property, the
case likely would not have arisen, unless that large sum was still somehow
insufficient to justly compensate the Nollans for the taking. See Nollan, 483 U.S. at
841-42 (citing U.S. CONST. amend. V) (“California is free to advance its
‘comprehensive program,’ if it wishes, by using its power of eminent domain for this
‘public purpose,’ but if it wants an easement across the Nollans’ property, it must pay
for it.”). Thus, the primary lesson I take from these cases is that governmentsponsored invasions of property are not handled with the perfunctory tests on display
in other constitutional conditions cases, a peculiarity that Dolan seems to
acknowledge out of the corner of its mouth. See Dolan, 512 U.S. at 385.
Under the well-settled doctrine of ‘unconstitutional conditions,’ the
government may not require a person to give up a constitutional right—
here the right to receive just compensation when property is taken for a
public use—in exchange for a discretionary benefit conferred by the
government where the benefit sought has little or no relationship to the
property.
Id. (emphasis added)). Of course, other scholars have noticed this pattern. See, e.g.,
Rachel Hannaford, Trading Due Process Rights for Shelter: Rucker and
Unconstitutional Conditions in Public Housing Leases, 6 U. PA. J. CONST. L. 139, 148
(2003) (“The Supreme Court has recently been growing more hesitant to apply the
unconstitutional conditions doctrine to individual rights cases, but it has not
abandoned it altogether. Indeed, when the constitutionality of forfeiture of property
comes into question the Rehnquist Court is almost always willing to invoke the
doctrine.”).
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own and in the context of a larger charter of rights.
These principles shed light on three textual clues about Congress’s
authority as constrained by the Third Amendment. The first and clearest
clue comes from the peacetime/wartime dichotomy set up in the
amendment itself. A brisk reading of the distinction might extract only a
rudimentary quartering principle: okay during wartime, not okay during
peacetime. A more rigorous reading reveals that this rudimentary principle
only approximates the true effect of the dichotomy: citizens make
quartering decisions during peacetime; Congress makes them in times of
war.
That this is the true meaning of the amendment is more starkly
revealed when it is re-read without a peacetime provision to stumble on:
“No Soldier shall . . . be quartered in any house . . . in time of war, but in a
manner to be prescribed by law.”161 This view of the amendment
underscores that quartering is always the exception, even in wartime. The
Third Amendment thus makes no distinction of the sort posited by the
rudimentary principle above; instead, the distinction is entirely about the
authority in which the quartering decision is vested. Congress is delegated
the authority to prescribe quartering—conditionally if deemed necessary
and proper to do so—during wartime. But the authority remains entirely
with private citizens during times of peace. Congress thus has no authority
to quarter during peacetime, not even by sweetening the deal with millions
of dollars of grant money as an incentive to cooperate. This division of
control over quartering aligns precisely with Hamilton’s view that the best
way to keep the civil authority separate from the military is to assure a
monopoly on government by the former during times of peace and
acceding only as much power as necessary to the latter during times of
war.162 Empowering Congress to bait grant recipients into submission to
military authority during times of peace risks unsettling this balance.
The Just Compensation Clause offers a second clue that supports this
reading of the Third Amendment. This Fifth Amendment provision
expressly empowers Congress to take property for public use, but in
exchange Congress must compensate the landowner.163 At least as early as
1694, England had required essentially the same kind of compensation for
housing troops in one of the many proclamations King William had issued
in an attempt to appease antiquartering agitators.164 But the Third
161. U.S. CONST. amend. III.
162. See THE FEDERALIST NO. 8, at 63-65 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
163. U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without
just compensation.”).
164. See Declaration for the Strict Discipline of the Army, and Due Payment of Quarters,
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Amendment contains no compensation clause. Two commentators have
noted its absence and agree that the significance of the omission when
considered in light of the Just Compensation Clause is that there is no right
to compensation from the government for quartering.165 This seemingly
harsh rule can be reconciled by again considering the amendment’s
peacetime/wartime dichotomy.
In cases of war, it is not unusual for the government to resist paying
off war debts in full. Indeed, a resistance of this nature touched off the
crisis that briefly followed the Supreme Court’s ruling in Chisholm v.
Georgia that states could be sued by private citizens in federal court.166
Wars are expensive, and individual sacrifices to support war efforts are
both expected and inevitable. Although the conclusion that citizens should
not be compensated for their complicity in quartering does not inexorably
follow from this principle, it certainly is in harmony with it.
In times of peace, however, such sacrifices are not only unexpected,
but worrisome. During these times, as Hamilton noted, the “laws are not
accustomed to relaxations, in favor of military exigencies; the civil state
remains in full vigor, neither corrupted, nor confounded with the principles
or propensities of the [military] state.”167 Yet the Third Amendment does
not provide for compensation for quartering in peacetime either. That
omission strongly implies that Congress is barred from even proposing
quartering arrangements, much less requiring them; instead, all quartering
propositions must be taken by the military itself directly to the owners of
the houses it wishes to use.168 Under this framework, it could be contended
165.
166.
167.
168.
1694, 7 Will. 3 (Eng.) (requiring notice of and payment for quartering); see also
supra note 53 and accompanying text. General Gage, who commanded British forces
in the Colonies prior to the Revolution, had proposed a similar arrangement prior to
the adoption of the first Quartering Act in 1765, but his proposal was ultimately
rejected. See Morriss & Stroup, supra note 40, at 778.
See Bell, supra note 41, at 146-49; Kontorovich, supra note 160, at 1159-61.
2 U.S. (2 Dall.) 419, 420 (1793). See also Sean M. Monahan, Note, A Tempest in the
Teapot: State Sovereign Immunity and Federal Administrative Adjudications in
Federal Maritime Commission v. South Carolina State Ports Authority, 88 CORNELL
L. REV. 1794, 1800-01 (2003). The crisis was quickly defused by passage of the
Eleventh Amendment. See id.; see also Hans v. Louisiana, 134 U.S. 1, 11 (1890).
THE FEDERALIST NO. 8, at 64 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Similarly, modern quartering in hotels—the descendants of the “public inns” and
“alehouses” of old—is not unheard of. The armed forces bargain with these
establishments directly to procure housing arrangements. See Maj. Alison Martin,
How Far Can They Go: Should Commanders Be Able To Treat Hotel Rooms Like an
Extension of the Barracks for Search and Seizure Purposes?, ARMY LAWYER, June
2004, at 1 available at http://www.westlaw.com (enter citation “2004-JUN
ARMLAW 1”) (“In the months following 11 September 2001, thousands of reservists
and members of the National Guard were called to active duty. This mass
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that the military could threaten to withhold funds it had parceled out—for
military research or procurement contracts, for example—unless a recipient
capitulated to a quartering request.169 But it would be powerless to call
upon Congress to add similar strings to the grants it earmarks for civilian
purposes. The military must deal directly with the civilian authority
empowered to make peacetime quartering decisions—private citizens. In a
very real sense, the people simply have not delegated that legislative
authority to Congress.170
The third and final clue is more a curiosity than a substantive addition
to what has already been said. The Third Amendment permits peacetime
quartering only when the owner of a house “consent[s]” to it.171 Simply to
ask whether one can truly “consent” when he is threatened with the loss of
substantial government benefits is to invite a digression into the minefield I
set out to avoid. In this respect therefore I will say nothing beyond the fact
that it is noteworthy that the amendment requires consent expressly, and
therefore it is a dubious proposition that the government may presume
consent simply because someone accepts “gratuitous” federal benefits.
But I think there is another observation worth making about this
choice of language. The English tenure system evolved out of land reforms
implemented by William the Conqueror in 1066.172 Because all land in the
kingdom was thought to be owned by the King,173 certain duties to the
crown accompanied the privileges that attended private property
ownership. Initially, a duty of mandatory military service ran with the
land.174 Ultimately, land owners were permitted to supply money rather
than their own bodies to fulfill this obligation.175 But the practice of
169.
170.
171.
172.
173.
174.
175.
mobilization caused barracks shortages on many installations, and some of these
mobilized forces were housed in hotel rooms either on or off the installation.”
(footnotes omitted)).
The military routinely makes research grants to universities around the country. See,
e.g., U.S. Dep’t of Def., News Release, Universities Selected for Research Funding
(Feb. 28, 2005), http://www.dod.mil/releases/2005/nr20050228-2141.html.
Although today it is common to think of federalism as strictly a federal-state
relationship, the Constitution did expressly contemplate that a reserve of certain
powers would be kept in the hands of the citizenry. See U.S. CONST. amend. X (“The
powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” (emphasis
added)).
U.S. CONST. amend. III.
See Bell, supra note 41, at 119.
See WILLIAM BLACKSTONE, 2 COMMENTARIES *87.
See Bell, supra note 41, at 119; Fields & Hardy, supra note 41, at 396-97.
The practice was known as “scutage” and provided sufficient funds for the king to
hire armed forces. See Bell, supra note 41, at 119; Fields & Hardy, supra note 41, at
398-99.
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quartering was ultimately a successor to this arrangement, the thought
likely being that landowners could endure the inconvenience as a gesture of
gratitude to the crown for permitting them to use the land in the first place.
This regal prerogative was exercised to the dismay of American
Colonists, and their rejection of this theory of property must be presumed,
particularly in light of the Third Amendment and the Just Compensation
Clause, as well as by their decision to discard the monarchical form of
government. Yet it is very nearly this prerogative that Congress now seeks
to exercise under Solomon’s auspices. The logic is strikingly similar: a
landowner accepts government funding—in other words, the sovereign’s
property—on the basis of which Congress now asserts a license to quarter a
military presence on the landowner’s property. The same basic logic also
underpinned the municipal linkage cases, perhaps helping to explain the
higher degree of scrutiny to which the Supreme Court subjected the
policies reviewed in those cases. A robust right to exclude, unique to the
American view of private property, must also provide some teeth to the
definition of “consent” when it comes to quartering.
In view of the threats quartering inherently poses to the supremacy of
civilian authority and to private property rights, these clues demonstrate
that the Third Amendment was designed to resist the kinds of conditions
that Congress has put in place under the Solomon Amendment. That Act
conditions the availability of vast amounts of funds that have no military
purpose on whether the United States’s private universities are willing to
cater to the military’s recruiting needs. Specifically, it requires fund
recipients to permit military presence on private property. In doing so, the
law subordinates the authority of private actors to military control and
impairs their right to exclude soldiers from campus. The Third Amendment
bars this kind of arrangement.
But not always.
IV. WAR AND PEACE
The Third Amendment’s drafters contemplated military necessity. In
“time of war,” private citizens are deprived of their authority to control
quartering in their houses, and Congress, by virtue of its removal from the
passions of the people, is trusted with the responsibility of accommodating
the military’s wartime needs. In this case alone Congress is permitted to
address military necessities in this manner.
It is not always clear, however, whether the country is at war.
Congress itself argued for a narrow definition of the term during the
Vietnam War in a struggle for control over the conflict with the President
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that ultimately resulted in the War Powers Act.176 The Act sought to assert
Congress’s right under the Constitution “To declare War,”177 and,
presumably, the necessarily implicit right to define “War.” If Congress
were held to its own standard, rare indeed would be the case in which it
would be authorized to prescribe quartering under the Third Amendment,
as it has not declared war since the attack on Pearl Harbor.
I do not wish to dwell long on this topic, however, for to do so would
again be to answer a call to traverse minefields that are not central to my
thesis.178 I simply wish to posit arguendo that we are presently in a state of
war and to make a few observations.179
First, the Solomon Amendment makes no distinction between
peacetime and wartime; compliance with its provisions is required at all
times by colleges accepting most sorts of federal funds. Furthermore, as a
wartime provision, the Solomon Amendment may require periodic
reauthorization in order to comply with the Constitution’s limit on
appropriation of funds in support of the armed forces.180 That constitutional
requirement tracks the historic requirement that Parliament annually
reauthorize its Mutiny Act, the law that regulated quartering in England.181
Second, because quartering is expressly disfavored by the Third
176. 50 U.S.C. § 1541 (2000); see John Hart Ely, Suppose Congress Wanted a War
Powers Act that Worked, 88 COLUM. L. REV. 1379, 1379-80 (1988).
177. U.S. CONST. art. I, § 8, cl. 11.
178. Furthermore, others have taken on this question with greater thoroughness than I
could commit to here. The question is one that has plagued the application of the
antiquartering right at least since 1628. See Lindsay Boynton, Martial Law and the
Petition of Right, 79 ENG. HIST. REV. 255, 255 (1964) (“No one contested its legality
during rebellion or in time of war: the disagreement was, at any rate superficially,
over what constituted war.”). The confusion in the American experience typically
arises out of situations when the President exercises his commander-in-chief powers
to engage military force without the express authorization of Congress. See generally
William Van Alstyne, Congress, the President, and the Power To Declare War: A
Requiem for Vietnam, 121 U. PA. L. REV. 1 (1972). Some thought has been given to
this question in the Third Amendment context as well. See, e.g., Schmidt, supra note
95, at 605-44.
179. I do note that some of Solomon’s supporters have found the FAIR decision
particularly troublesome because, in their view, we are presently at war. See, e.g.,
Letter from John Cornyn, Tex. Senator, et al., to John Ashcroft,
U.S. Att’y Gen. (Jan. 4, 2005), available at http://www.cornyn.senate.gov/
doc_archive/jc_other/Ashcroft_Letter_1.4.05.pdf (“This ruling is potentially
dangerous to our national security, and especially so in a time of war.”).
180. See U.S. CONST. art. I, § 8, cl. 12 (“[Congress shall have Power] To raise and support
Armies, but no Appropriation of Money to that Use shall be for a longer Term than
two Years.”).
181. See WILLIAM BLACKSTONE, 1 COMMENTARIES *402.
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Amendment even in times of war, Congress should be required to make a
clear statement that it intends to quarter troops in private houses, which, I
have argued, would extend to inserting military recruiters onto private
campuses as well. That clear statement would serve to put the people on
notice that they no longer have the authority to resist quartering, and it also
would harmonize the Third Amendment with another clear statement
doctrine, which is likewise employed when the federal government exerts
authority that infringes on the domain of the states under the Eleventh
Amendment.182
Finally, even if something akin to the Solomon Amendment is
permissible during wartime, it was not constitutional when it was passed,
during a time of peace, and it will continue to violate the Third Amendment
whenever this country returns to a state of peace (assuming it has ever left
that state for Third Amendment purposes). Congress has shown no signs of
intending to scale back the Solomon Amendment any time soon; to the
contrary, recent trends point in the opposite direction. Thus, if the time is
not yet ripe for an attack on Solomon based on Third Amendment grounds,
it likely soon will be.
CONCLUSION
By design, military order is inimical to democratic society. Military
establishments governed by democratic principles would simply fail to
function. Similarly, a democracy governed by a military authority is no
longer a democracy. Military governments are entirely unaccountable to
the governed, a state of affairs made possible by a most salient and
immediate monopoly on the legal use of physical force. When military
necessity becomes the organizing principle of government, the only
bulwark against the arbitrary use of force—due process—is subordinated to
182. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003) (“Congress
may, however, abrogate [Eleventh Amendment] immunity in federal court if it makes
its intention to abrogate unmistakably clear in the language of the statute and acts
pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.”).
No clear statement requirement has yet evolved under the Tenth Amendment,
although the Court has occasionally hinted at a milder version of it in its Commerce
Clause cases. See, e.g., United States v. Lopez, 514 U.S. 549, 562-63 (1995).
We agree with the Government that Congress normally is not required
to make formal findings as to the substantial burdens that an activity has
on interstate commerce. . . . But to the extent that congressional findings
would enable us to evaluate the legislative judgment that the activity in
question substantially affected interstate commerce, even though no
such substantial effect was visible to the naked eye, they are lacking
here.
Id. (citations omitted).
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the needs of the state and is afforded, if at all, in a purely perfunctory
manner.
The Founders recognized that the security and viability of the new
nation depended upon the retention of a military authority. But they also
recognized that the establishment of a democratic republic depended
equally on a vigilantly enforced division of military and civilian
governance. The relative success in reducing the abuse of citizens by the
soldiery since the pre-independence era speaks more to the success of this
division than it does to any uniquely American conception of the
“military.”183
Militaries are inherently violent institutions, and with good reason.
Those engaged in the business of protecting nations are relied upon
precisely because of their ability to practice violence with skill and
efficiency. Inevitably, however, those skills are not always put to good use.
Those immersed in a culture of threat learn, perhaps subconsciously, to rely
upon threat, even when it is inappropriate to do so.184 Physical violence,
unfortunately, is substantially more common in military than civilian
culture.185
Thus, many of the same abuses that gave rise to demands for
protections from quartering in the first place centuries ago continue to
apply with equal force today. The policy of intolerance toward sexual
minorities to which the schools object is undeniably bound up with these
concerns. Over the year between February of 1999 and 2000, for example,
the Servicemembers Legal Defense Network recorded “nearly 1,000 cases
of abuse, ranging from verbal gay-bashing to assault and murder.”186 The
183. In all likelihood, the success in recent times owes to the general lack of sustained
battles fought on American soil and the resultant lack of any basis for declaring a
state of martial law.
184. See, e.g., Cave, supra note 99 (“This week, a CBS affiliate in Houston . . . played a
voice mail message from a local recruiter that threatened a young man with arrest if
he did not appear at a nearby recruiting station.”).
185. See, e.g., Jon Elliston & Catherine Lutz, Hidden Casualties: An Epidemic of Domestic
Violence when Troops Return from War, SOUTHERN EXPOSURE, Spring 2003, at 36,
available at http://www.southernstudies.org/reports/Hidden%20Casualties-new.htm
(noting that an “Army-funded study . . . found in 1998 that reports of ‘severe
aggression’ against spouses ran more than three times higher among Army families
than among civilian ones”).
186. Katherine Gibson, The Concepts Behind the US Draft Proposal Betrayed by the
Reality of the Military, http://mit.edu/thistle/www/v16/1/draft.html (last visited Nov.
8, 2005) (citing Servicemembers Legal Defense Network, at http://www.sldn.org/
templates/index.html). For a grisly account of one such murder, see Charles E. Vins,
Unsafe Haven, NEW REPUBLIC, June 21, 1993, at 11 (recounting the murder of naval
officer Allen Schindler, who was beaten so badly that his liver “contained holes that
allowed [the Navy pathologist conducting the autopsy] to see straight through it.”).
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968 reported incidents represented a 142% increase over the previous
year.187 Because the military’s official policy still bans soldiers professing
or exhibiting homosexual orientation from its ranks, underreporting is
widely assumed,188 suggesting that the pattern of abuse is even more
pronounced than these numbers indicate.
Even assuming in the face of these data that the military is free to
pursue discriminatory policies based on its own determination of what
national security requires, its special status as a separate society is the sole
basis for such discretion. We continue to place our trust in the military to
determine its own affairs only because we know that it is powerless to
enact its vision of society in the civilian sphere. The Third Amendment was
designed in part to bar our representatives from deciding to empower the
military to cross that line. It accomplished that protection by vesting power
in individual citizens to make their own decisions about whether to keep
the military out. Although the federal government is free to open its own
property to facilitate military recruiting, it is powerless to pry open the
doors of the nation’s private universities for that purpose. Well before any
determination needed to be reached about whether the military’s message
confounds the expressive intent of these schools, Solomon went too far
when it marched unwanted recruiters even one step beyond the
schoolhouse door.
187. Dave Cullen, Conduct Unbecoming, SALON, Mar. 10, 2000, http://dir.salon.com/
news/feature/2000/03/10/gays/index.html.
188. See, e.g., NAT’L DEF. RES. INST., RAND CORP., SEXUAL ORIENTATION AND U.S.
MILITARY PERSONNEL POLICY: OPTIONS AND ASSESSMENT 280 (1993), available at
http://www.rand.org/publications/MR/MR323 (“In the military, the presence of a ban
on homosexuals, with significant penalties for discovery, provides a strong incentive
not to report anti-homosexual violence or personal threats of violence to officials.”).
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