Obviously. But that doesn’t mean they’re right, just that they’re the toughest kid oin the block.
Practical consequences being unfortunately equal, better to be right than wrong.
–Cliffy
But the military is one institution specifically restricted in the Bill of Rights.
Bricker, did the long-neglected Third Amendment get mentioned at all in the SCOTUS or Circuit Court decisions? Think it would be relevant to the question of whether Congress could require a university to host Army recruiters?
No, and no. The Third Amendment was not mentioned in the Third Circuit’s opinion, the Supreme Court’s opinion, or even at oral argument. And for good reason: on its face, it’s inapplicable.
It refers to a house, and quartering, not to a school and the temporary presence for purposes of recruiting.
You’re right in saying it’s long-neglected, though… I cannot find a single federal case that addresses this amendment.
There is Engblom v. Carey, a Second Circuit case from 1982.
That’s about it.
And because of that, for the clear meaning of the Third Amendment to be stretched and brutalized to include things that are not homes, and actions that clearly are not quarterings of troops, would be judicial activism of a most aggressive and unconscionable kind.
IMHO.
There’s one, and I think only one…Engblom v Carey, decided by the 2nd Circuit in 1982. In 1979, New York State corrections officers went on strike, and the Governor activated the National Guard to run the prisons. As part of that, some of the striking guards got evicted from employee housing, and it was used to house the Guard.
I bring it up every time my in-laws try to stay with us,* but it gets no traction with my wife.**
- FIL is a two star
** I’m kidding when I bring it up, and aside from what I consider to be a wrongheaded view toward homosexuality, FIL is a hell of a guy.
I don’t know abou the current Court, but it’s hard for me to imagine any of the Supreme Courts of the past fifty years deciding the Amendment meant that while the government couldn’t make you put troops in your guest bedroom, using (for example) your yard as a drillfield didn’t violate the Amendment.
Once you go there, it opens up the question of whether the military can require the use of anyone’s private property, absent a state of war that necessitates it.
Indeed. Did you visit the thread about the pro-gun guy at Clemson raffling off an AK-47? On the video, he referred to the Second Amendment as one of the least respected Constitutional amendments. My instant thought was, “not next to the Third.”
You have to be kidding me.
I think it has to be the most respected constitutional amendment by that measure, as it has a long record of institutions and individuals actually honoring it, and thus not needing to drag the matter before courts.
An absence of litigation on a subject ought to be a good thing, don’t you think?
OK, but we’re still talking about a part of the Bill of Rights that’s so honored and respected that I’d doubt five people in 100 could even tell you what it’s about. It all depends on your measure, I suppose.
Speaking of measure, it’s like what they said about Leppo, briefly the fifth fictitious Rutle: “His influence on the other Rutles was so immeasurable that nobody has ever bothered to measure it.”
“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
I think most people would correctly interpret that to mean soldiers can’t take over your house and live there unless there is a war on, and even in a time of war they are subject to reasonable regulation.
What do you think it means?
And I think people have bothered to measure it, BTW. Not by litigating the subject, but by comparing the behavior of our troops in war zones against the troops of the Red Army, for example. While we kept our troops largely in bases and camps even during occupation duty, the Soviets quartered their troops in German and Austrian homes, where they robbed their hosts blind and raped any girl or woman they could find.
We don’t quarter troops in the homes of unwilling people, domestic or foreign. It runs counter to our values as well as presenting a tremendous security risk to those troops. It is therefore not surprising that Third Amendment cases are so rare - it is because that law is so uniformly well-followed.
If the Constitution were to be written today, we wouldn’t have to mention this at all, so rare is the offense. It is there as a reminder of a time when this basic human right wasn’t so uniformly observed in our society. The quartering of British troops in private homes in the colonies was common, and universally hated.
Did the Court really need to say that, in deciding the case? Seems like dicta to me - and a nudge-and-a-wink at Congress.
I wasn’t surprised by the ruling, but I certainly was by the Court’s unanimity.
No, it was indicative of the reasoning the Court applied to the question. If the First Amendment does not prevent Congress from directly applying the requirement, then a priori Congress is not constrained from applying it by way of the spending doctrine.
The answer is actually “yes,” the court really did say this.
I quoted it directly and it wasn’t structured as a hypothetical. It was also repeated in the final line of the conclusion.
I’m not sure what it means that it was part of the reasoning and not in the holding, as **Bricker **indicates, but the answer to your question, Elendil’s Heir, is yes.
I asked if the Court really needed to say that, not if they did say it. I have no reason to doubt that what you posted was factually accurate (and there are plenty of smart, alert people on the SDMB who’ll pounce if the facts are otherwise)!
Indeed you did. :smack:
Frankly, I’m all in favour of anything that will result in lawyers being shot. 
AFAYC, then, the Third Amendment only refers to housing troops indoors. If they want to camp out in your yard, Congress can authorize them to do this, and the President can so order.
On this one, I’m curious: would you feel your rights had not been violated if you came home from work to find troops camped out on your lawn?
I think I’ve already said: any Supreme Court in my lifetime, up until now, would have regarded the Amendment as stretching a bit further than the four walls of the house, due to the changes in our ways of living, if nothing else. In colonial America, town houses were largely townhouses, with no frontyard to speak of, and a backyard barely big enough to pitch a child’s tent. And outside of town, people didn’t have yards so much as fields for growing crops.
But by now most of us have lived in a house on its own quarter acre or so of yard, and I have little doubt that any Warren, Burger, or Rehnquist Court would have seen the Third Amendment as applying to that yard, if they’d ever been forced to rule on it. That’s all included, in our minds, in what we don’t expect strangers to be wandering around for no good reason. That didn’t really exist in 1789, so the drafters of the Bill of Rights couldn’t speak to it, but later Courts could, and it’s hard for me to believe they would have put that new space outside, rather than inside, the Amendment’s protection.
From there, though, the question becomes more interesting: should the Amendment protect private real estate in general, or should it be limited to private residential property? If the latter, how big a ‘yard’ is protected? Does the farmhouse on the corner of a 160-acre farm cause the whole farm to be exempt from military use? Or just some area around the house?
If the former, should the Amendment not protect other business property? If the latter, how about the residence sitting on a nice big 5-acre lot?
You see where this is going: if the Third Amendment had spent even a fraction as much time in court as the First or Fourth or Fifth Amendments have, the odds seem pretty good that a Supreme Court, somewhere along the way, would have decided that there were two simple places to draw the line: the four walls of a residence on the one hand, and all property not owned by the government whose troops were under discussion, on the other. And the one hand is out; they’d either go with the other hand, or continue to draw complicated lines in the middle.
I’m aware of that. And ISTM that this is no time to be eroding that proud tradition by claiming Federal authority to park troops on private property against the wishes of that property’s owners, absent a situation where such private property is close enough to a combat zone that the troops might need the property for purposes related to that combat.
Well, that’s exactly it, isn’t it? You draw the right very tightly, and see no offenses. I see the right as extending perhaps a bit further, and wonder whether we shouldn’t see an offense against the Third Amendment in the Solomon Amendment, and in the pernicious language of this SCOTUS decision.
I’ve got one more general comment: this is an instance of what I’ve been calling ‘statist conservatism,’ for lack of a better name, since the 1980s. It believes in construing citizen rights as narrowly as possible, so that government agents have the widest possible latitude to act. It is to be contrasted, of course, with libertarian conservatism. (Both forms of conservatism are against taxes, unions, and laws protecting consumers, workers, and the environment, of course, so they’re not exactly opposites, just more or less at opposite ends of what has constituted conservatism in our lifetimes.)
A libertarian conservative, ever suspicious of the government, would insist on his right to tell those troops to take their silly pup tents off his front yard and march on down the road. Of course, libertarian conservatives are much harder to find in 2006 than they were in 1996. Just sayin’.
Went overboard in that last post: the Solomon Amendment itself, relying as it does on the Federal purse-strings as its enforcement mechanism, presents no possible Third Amendment infraction even in my interpretation of things.
The comment about the pernicious language of this SCOTUS decision, and the possible Third Amendment affront it represents, still stands.
Bullcrap. Frankly, in time of war, there is no constitutional prohibition against the quartering of troops. The Third Amendment would then only require that their quartering be done according to laws passed by Congress.
Seeing as we are in a war right now, Congress could explicitly require the hosting of military units on college campuses, far more than requiring mere recruitment there. This was done in WWII, and created no constitutional crisis that I can see.
As you note, the Solomon Amendment presents no Third Amendment crisis. Neither, though, does this Supreme Court decision, and neither do the decisions routinely actually made by the military.
Your concerns are overblown. You believe yourself to be vigilant, but you come across as paranoid.