New at Reason

|3.9.06 @ 1:15PM|#

I was wondering when y'all were going to go after the dicta in that decision (Volohk has addressed it somewhat already). Happily it seems that the Supreme Court has given law schools the green light to openly protest recruiting, which many of them were wary to do (as they thought it might be a violation of the Solomon Amendment).

________________

Brian Doherty,

The fact that Court undercut the natural reading of Dale also demonstrates the obsequious nature of the Court when it comes to the war power.

|3.9.06 @ 1:21PM|#

"Still, Roberts' decision, despite all its alarming implications, is no real surprise; as Randolph Bourne said, skillfully summing up the tangled history of government and military conflict, "War is the health of the state." The Roberts Supreme Court may have shot down Jefferson, as did Chief Justice Marshall, but they have boldly upheld Randolph Bourne."

I heard that they're going to start calling the war on terrorism, "The Long War". At least that's honest---considering it has no end (I can conceive of absolutely no hypothetical situation in which we would end the war on terrorism), and it will continually be used an excuse to expand the state and shrink the liberties of the populace. It's the new cold war, the new bogeyman who will be the fuel for the welfare-warfare machine.

If all other common sense laws, regulations, etc., take a back seat to "The War Effort", then I suppose we might as well give up this whole "constitutional republic" charade once and for all.

Does anyone else ever think that, at this point, it would be better to drop the "frog" of the populace into hot boiling water so that they hop out, rather than continue allowing the political class to slowly turn the heat up on us? If the logical conclusion of all this is a fascist state, then why let them slowly delude the country, little by little? Just turn the heat all the way up, and then maybe some of the idiots who think that red vs blue actually means something will come to their senses---or, rather, be shocked to their senses.

|3.9.06 @ 1:38PM|#

I think you're being a little disingenuous in your bafflement as to why '"deference at the apogee" when Congress is trying to raise an army.'

It isn't because of any of the war-lovin' you postulate, but because in this case, Congress is legislating in accordance with a duty/responsibility/power that is spelled out in black and white - the "raise an army" language.

Compare this to, say, Social Security. The Constitution doesn't explicitly direct Congress to set up a retirement system. The laws it passes in this area are based on an interpretive reading of other clauses which are relevant to the task, but do not explicitly speak to it.

In this case, however, Congress isn't drawing on some general language about some related issue. It's drawing on very clear language directing it to raise an army. Military recruiters on campuses are there to raise an army.

|3.9.06 @ 1:52PM|#

Constitutionally, can the government condition funds on the relinquishment of a right? Has that ever been addressed?

The Owner's Manual|3.9.06 @ 1:52PM|#

"it would be perfeclty [sic] all right for the federal Congress to demand that military recruiters be allowed to enter any private property at will."

In time of need, the military can enter private property and take you away, sort of a recruitment you can't refuse, and we call it getting drafted.

|3.9.06 @ 1:54PM|#

joe makes a good point.

|3.9.06 @ 2:01PM|#

Jason Ligon,

No he doesn't. Reading the language in isolation from the rest of the Constitution isn't a good point at all. One must read it within the context of Art. I, the rest of the Constitution and the structure of the Constitution. In other words, to merely look to this specific language isn't enough and joe is displaying some poor analytical tendencies.

|3.9.06 @ 2:04PM|#

Joe. You are exactly right. This has nothing to do with anything beyond Congress' power to raise an army and provide for the common defense. If Congress has the power to draft you into the Army against your will and send you off to be killed in a war of its choosing, it certainly has the power to require colleges to let military recruiters on campus. You may find Congress' war making power disturbing, but the Court certainly did not create any new Congressional power with this decision.

|3.9.06 @ 2:09PM|#

Now I'm no expert on these things...

but it does seem a strech to me to say that because Congress is tasked with raising an army, that somehow gives Congress the ability to force anyone any everyone they choose to allow recruiting.

What's to stop them from forcing every commercial or residential property to be set up as a recruitment site?

I understand that Congress needs quite a bit of latitutde in the ways they go about raising an army, but somehow it doesn't seem to fit that they can do anything they damn well please in the course of raising that army, including potentially violating other parts of the Constitution.

|3.9.06 @ 2:13PM|#

John,

That merely begs the question as to whether conscription is a consgitutionally permitted exercise and thus you and joe miss the entire point of Doherty's disquisition on the "necessary and proper" clause.

Timothy|3.9.06 @ 2:14PM|#

The schools can, you know, turn down the federal dollars. They don't have to allow recruiting, they just can't ban recruiters AND get federal money.

|3.9.06 @ 2:14PM|#

I understand that Congress needs quite a bit of latitutde in the ways they go about raising an army, but somehow it doesn't seem to fit that they can do anything they damn well please in the course of raising that army, including potentially violating other parts of the Constitution.

What other parts are they violating? Does making you pay your taxes violate your right to free speech to criticize the IRS? Did making White Southerners take down their "Whites Only" signs violate their right to free speech?

|3.9.06 @ 2:15PM|#

ChicagoTom,

Merely because the Congress has the power to do X, that doesn't mean that the power is absolute, unchecked, or that the means to get to the goal of that power are unlimited. joe disagrees of course.

|3.9.06 @ 2:18PM|#

Hak,

There is nothing in the history or drafting of the Constitution that would in anyway indicate that Congress does not have the power to conscript. The term "provide for the common defense" has always been interpreted to give Congress that power. You may not like that power, but short of ammending the Constitution, Congress has it.

|3.9.06 @ 2:19PM|#

Timothy,

The dicta of the decision was pretty clear when it states that even if they weren't taking federal dollars that Congress could demand recruiters on campus.

R C Dean|3.9.06 @ 2:22PM|#

I think joe is pretty much on target here.

Its all very well to talk about context, hak, but just how does the context lead you to a different conclusion?

Congress does seem to have plenary powers when it comes to raising an army, limited of course by the Bill of Rights and other amendments.

Anyone care to point out just which right would be abridged by requiring colleges to allow recruiting on their campuses?

I don't think it infringes on freedom of speech, because any college professor or other individual remains free to say whatever they want about the army and the recruitment drive. The same goes for freedom of association.

Anyone opposed to recruitment on college campuses want to assert a corporate right of speech and association, one that you would be equally willing to extend to Halliburton? If a college is free to refuse to associate with the military, why isn't Halliburton free to refuse to hire Jews or blacks?

Timothy|3.9.06 @ 2:23PM|#

Hak,

But my understanding is that is not how the Solomon Amendment is written. I could be wrong about that, certainly, but that's my understanding.

I would surmise, then, that if, say, Harvard decided not to take any more federal money and then decided not to allow recruiters, it would take another action of Congress to force them to host recruitment. At which point, I'd guess, we'd see another suit. Given this decision, I'm not sure how far that would get, if I understand what you're saying correctly.

|3.9.06 @ 2:24PM|#

John,

Even if we accept that, you are making the very wrongheaded conclusion that because one very broad exists that this means that any power which seems less extreme also exists, which has always been a very dangerous concept.

|3.9.06 @ 2:25PM|#

John:
So, does "promote the general welfare" mean that Congress has the constitutional power to raid Bill Gates' estate and give the money to crack-smoking mothers? Or could it be that "welfare," like "provide," does not now and never included, in the context of the Constitution, the power to abrogate individual rights of property and body?

|3.9.06 @ 2:28PM|#

You know, "the blessings of liberty."

|3.9.06 @ 2:30PM|#

Brian Doherty has already addressed John's point, albiet obliquely. In the article, Doherty asked what was to stop recruiters from coming into your home under the current reading. Suggesting that Congress has unlimited (or nearly so) plenary powers to recruit or conscript an army leads one to the same question. Surely the power to raise armys is not unlimited.

|3.9.06 @ 2:32PM|#

Jamie,

We had the argument and it ended in the civil war and your side lost. The idea Congressional power being limited to the extent you argue, while I suppose defensable at some level, is so dated as to be irrelevent. More importantly if it were true, the federal government would for all intents and purposes cease to exist as we know it. Congress does raid Bill Gates' estate through the power of taxation (whether that be directly through the income tax or indirectly through tariffs and duties)and is free to use that money in anyway it deems fit to promote the common good and yes that can and does include giving a sizable portion of it to crack mothers.

|3.9.06 @ 2:32PM|#

You know, if you accept that the draft is Constitutional then just about any measure short of that is also Constitutional, if done for recruiting.

I'm not here to defend it, but I guess if they're going to be consistent then that's how they have to rule. So, as others have also pointed out, the draft is the lynchpin of this debate.

I'm guessing that the colleges didn't argue about the draft in their briefs. And I'm guessing that if the case before the Court really hinges on some bigger issue, but neither party goes into in their arguments, and the bigger issue isn't immediately on the table in the case at hand, then the Court is going to leave that bigger issue alone, and simply rule accordingly.

Which makes sense, even if not everybody likes the outcome.

|3.9.06 @ 2:35PM|#

R.C. Dean,

Of course it violates freedom of association.

Imagine if you will a college set up by Quakers which accepts no federal dollars and whose charter contains language which demands that no military recruiters by allowed on campus (at least for the purpose of recruiting). Now imagine if everyone who attends, is a faculty member, etc. of that college agrees with this particular portion of the charter and indeed its a major reason why they have chosen to go to said school. Now, its unlikely that the military would go a callin' at such a place, but according to the Court, if it did, and if the Congress gave the military a mandate, it could do so and force the Quaker college to allow them in for the purpose of recruiting.

As to the issue of hiring blacks and Jews, you should be as aware as anyone that libertarians generally oppose the laws you are referring. So, if its an issue of consistency you're harping that won't hunt here.

Now, do something for me, explain how this decision squares with Dale.

Timothy,

The issue isn't how the Solomon Amendment is written.

|3.9.06 @ 2:35PM|#

Number 6,

Why is it not unlimited? If country were ever invaded by a hostile force and its very existence threatened, Congress would absolutely have the power to draft old men and children or do whatever it took to provide for the survival of the country. I suppose you could imagine some theoretical limit to the power, but wherever that line is, forcing a public service such as a university to accept military recruiters is nowhere near it.

|3.9.06 @ 2:35PM|#

So if Congress felt that the best way to raise an army was to take custody the first born male of any woman, raise it as a ward of the state and force it into the army upon turning of legal age, that's cool too?

Timothy|3.9.06 @ 2:39PM|#

Wouldn't Congress coming into your house and forcing you to host recruiters violate the third amendment?

|3.9.06 @ 2:39PM|#

thoreau,

The bigger issue concerns the "unconstitutional conditions" doctrine, and its that doctrine that we are ourselves are currently dancing around too.

|3.9.06 @ 2:42PM|#

Timothy,

At this point I urge you to RTFA.

And no, its not likely the case that it would a violation of such, since there is no issue of quartering involved. Though it could be a 4th Amendment issue if the recruiter was doing anything other than telling the bullshit that recruiters are famous for.

|3.9.06 @ 2:44PM|#

Hak-please explain the unconstitutional conditions doctrine.

John- Your post pretty clearly indicates to me that you do not see any limit at all to the government's power to raise an army, either Consitutional or ethical. If that is so, then our disagreement is fundemental enough that I'm not sure there's any point in continuing the discussion.

|3.9.06 @ 2:44PM|#

John,

As to the issue of conscription, the general problem that the colonies had against professional armies illustrates a limit on this idea. A peace time military was an anathema to them, so the notion that the Congress can draft in any circumstance, even, peacetime, is in error.

|3.9.06 @ 2:49PM|#

People need to remember that perhaps the first and foremost role of government is to maintain a monopoly on force, as such the ability to maintain a military will trump just about anything in any government of any form. The benefits of this monopoly predate humans by millions of years (look at the chaos and violence that is involved amongst any group of social mammals when an alpha is deposed or dies) and one need only look to Iraq to see what can happen when no one holds a monopoly on force (or when the wrong people do, if you look back a few years).

|3.9.06 @ 2:50PM|#

If both Joe and I agree on an 8-0 Supreme Court case, one must wonder how freakin' clueless the Yale School of Law must really be. What are they smoking, and do they have a prescription?

So if Congress felt that the best way to raise an army was to take custody the first born male of any woman, raise it as a ward of the state and force it into the army upon turning of legal age, that's cool too?

Possibly, but that doesn't sound like a recipe for getting re-elected. At the end of the day, our rights are guarded only by ourselves, and our willingness to vote for them. Sending a bunch of jackasses to Congress, and then relying on old men in black robes to protect your rights is pretty dumb.

|3.9.06 @ 2:51PM|#

Actually Hak, a peacetime army was anathema, a navy is specified in the constitution.

|3.9.06 @ 2:51PM|#

A peace time military was an anathema to them, so the notion that the Congress can draft in any circumstance, even, peacetime, is in error.

People often confuse "shouldn't" with "can't."

|3.9.06 @ 2:52PM|#

Actually Hak, a peacetime army was anathema, a navy is specified in the constitution.

Argh, there be pirates!

|3.9.06 @ 2:53PM|#

Hak,

Is this the "unconstitutional conditions" doctrine you referred to?

(On a tangent)
If so, this example seems rather interesting and seems to undercut a lot of libertarian arguments against anti-discrimination legislation :

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Supreme Court upheld that California Supreme Court�s ruling that owners of private shopping centers may not exclude persons who with to engage in nondisruptive speech and petitioning activities. So, although the Court eliminated part of the property owners right to select users of their property, the Court held it was not a taking because the owners could not demonstrate that an unchecked right to exclude others was a basic part of the economic value of the shopping center.

|3.9.06 @ 2:54PM|#

Number 6,

Oh, if I did that then be accused of being a show-off by biologist, thoreau, etc. :)

Oh well, I'll just have to face the fire.

A classic example can be found in Pickering, where a school teacher (in Texas as I recall) was dismissed because of his outside of employment speech (his speech was made as the Court stated "as a citizen"). In this instance the Court stated (via what has become a fairly contested and complicated test) that the teacher couldn't be fired for exercising his 1st Amendment rights; the mere act of government employment did not waive those rights in other words. BTW, there's a current case before the Court named Ceballos v. Garcetti that deals with a variation of this issue.

In this instance, if we were to follow the dicta to its logical conclusion, does the mere fact a person is a citizen mean that the government may recruit them at any time for military service, even when the citizen tells the government to buzz off? You can also ask the same question for a "group of citizens."

|3.9.06 @ 2:55PM|#

Number 6,

More succinctly, can the government condition a benefit so as to strip an individual of a constitutional right?

|3.9.06 @ 2:56PM|#

Good point Bubba.

Hak,

Your point about a standing army is about 160 years too late. You may disagree with the Congress' war making power, but that doesn't change the fact that it has had this power as we now know it since the civil war and perhaps before that. This case was just a routine application of the power as the Supreme Court and most of the rest of us see it. Now, you may think that is terrible and not what was intended by the framers, fair enough. Regardless, there is nothing chilling or scary or novel about this case. It is merely a continuation of about 150 years of jurisprudence.

|3.9.06 @ 2:57PM|#

FAIR framed its case entirely in terms of 1st Amendment rights. The Court decided the case accordingly, though remarking as dicta that Congress' power to raise armies is sufficiently broad (e.g., the draft) that it could have chosen more direct means of ensuring campus recruiting than tying it to the spending power.

That said, it is indeed significant that the power to raise an army is an express and enumerated power. Thankfully, we don't yet know what the Constitutional limits to that power are (given that the Court addresses only real cases and controversies), but the almost laughable attempts by the legal professorate to win on 1st Amendment grounds richly deserves the short shrift it was given by the unanimous Court. The political reality is precisely that the schools could refuse the money and thus ban recruiters. I await with eager anticipation the list of colleges whose sensitive scruples are so offended they will forego the filthy federal lucre.

Could Congress force schools like Hillsdale to accept recruiters anyway? Probably, but then Congress would be responsible for the political reaction to such a law, whatever that may be. For all Mr. Doherty's hand-wringing over this, the fact remains that the Court decided correctly, even including its admittedly troublesome dicta. Those who disagree are confusing the law as it is with the law as they would like it to be.

VM|3.9.06 @ 2:57PM|#

when have you been accused of being a show off?

that wouldn't be nice.......

|3.9.06 @ 2:59PM|#

What's to stop them from forcing every commercial or residential property to be set up as a recruitment site?

Or, conversly, what's to stop any lefty city like San Francisco from banning recruiting stations within city limits?

|3.9.06 @ 3:00PM|#

hunter,

The federal government has never held a monopoly on force though, which is why force is dispersed amongst many non-federal bodies and private citizens.

Yes, that's why I referred to "armies."

ChicagoTom,

You're going to have to explain how this undercuts the philosophical stance against such laws.

|3.9.06 @ 3:00PM|#

Hak,

There is a huge difference between firing me for what I say and saying that I have to let someone on to a college campus. College Campuses are public accomadations. They are subject to more government intrusion and regulation than private residences. So, this case does not mean that the government could force a recruiter into your house. Because college campuses are public accomadations, Congress can laws forceing them to do all kinds of things which they may not like. In the same way Congress can tell white shop owners in Georgia they have to let black people into their shops, they can tell liberal college professors that they have to let military recruiters on their campuses. The only difference is that Congress relies on its commerce power in the first instance and its war making power in the second instance.

Timothy|3.9.06 @ 3:03PM|#

Hak,

Having RTFA I'm going to spend the rest of the afternoon shaking my head and building an arsenal under my apartment...so in my downstair's neighbor's apartment.

KipEsquire|3.9.06 @ 3:04PM|#

Good piece, but I could have done without the tired old myth that Thomas "Louisiana Purchase" Jefferson was some great, unwavering champion of enumerated powers.

|3.9.06 @ 3:04PM|#

John,

You can't both argue that Congress had the power since its inception and also that historical gloss gave them this power. One or the other dude.

BTW, mere historical practice by itself justifies nothing - unless you are Edmund Burke.

R C Dean|3.9.06 @ 3:05PM|#

Of course it violates freedom of association.

So, could a college or corporation that is opposed to the drug war refuse to allow the police on their property to arrest a student for a drug offenseon, on the grounds that laws allowing the police to perform this function over their objection amount to laws forcing them to associate with police?

I'm just trying to figure out what the boundaries of "freedom of association" are.

As to the issue of hiring blacks and Jews, you should be as aware as anyone that libertarians generally oppose the laws you are referring. So, if its an issue of consistency you're harping that won't hunt here.

I know, but most of the people who were against the Solomon Amendment see no problem with forcing people to associate in their private capacity with blacks, Jews, whoever via "civil rights" laws.

|3.9.06 @ 3:07PM|#

John,

Again, your entire argument rests on the expansive, post-1930s reading of the Commerce Clause, thus you continue with your question begging.

|3.9.06 @ 3:07PM|#

I don't think I refered to the federal govt. Hak, just govt. And while you are correct as to armies, I don't see what that has to do with it since the case is about "military" recruiters and I haven't seen you or anyone argue that navy (and marine) recruitment is OK while army is not, you can't be that obtuse.

|3.9.06 @ 3:08PM|#

John-

I'm willing to buy arguments that this is consistent with precedent and all that. But if you show up on a libertarian forum and say "Well, it's a place of public accomodation so the owners have fewer rights and that's all cool" I think you may find some people arguing with you. I'm willing to contemplate arguments that this is consistent with precedent. But you seem to be arguing that this is not only legal, it's also totally cool from a libertarian perspective. From a libertarian perspective, there are lots of things that are legal but shouldn't be legal, and lots of other things that are legal but aren't cool.

|3.9.06 @ 3:10PM|#

R.C. Dean,

So, could a college or corporation that is opposed to the drug war refuse to allow the police on their property to arrest a student for a drug offenseon, on the grounds that laws allowing the police to perform this function over their objection amount to laws forcing them to associate with police?

Well, there is obviously a factual difference involved there, since it is not a crime to tell a military recruiter to piss off (of course pot shouldn't be criminalize either).

|3.9.06 @ 3:15PM|#

Thoreau,

My problem with the article is that it makes the case sound like this is some new scary precedent as opposed to what it is which is a completely expected application of Congress' war making power. There is nothing exceptional about this case other than a bunch of elite law professors who thought the law as currently written didn't apply to them.

As far as whether Constitutional law should go back to the pre 1930s Lockner standard of Congressional power and go even further than that and restrict Congress' war making power as some on here would argue, that is an entirely different debate and one that is not appreciably changed by this decision.

|3.9.06 @ 3:15PM|#

Timothy,

My apologies for being so rude; I was pulling a joe.

|3.9.06 @ 3:18PM|#

I know, but most of the people who were against the Solomon Amendment see no problem with forcing people to associate in their private capacity with blacks, Jews, whoever via "civil rights" laws.

How is your own consistency in this area RCD? You behind both the control-Halliburton powers and the control-the-law-school powers?

|3.9.06 @ 3:19PM|#

Hak-thanks.

|3.9.06 @ 3:21PM|#

John,

Its the "Lochner" decision. Also that decision concerned a state law on the working hours of bakers. It didn't directly speak to the commerce power of the Congress. Indeed, the so-called "Lochner era" didn't even start with Lochner (1905) - it started in the 19th century.

|3.9.06 @ 3:23PM|#

Number 6,

Not a problem. IMHO its an issue that the Court has left murky because it doesn't like the implications (for good and ill) that a more definitive statement could lead to (depending on what was written).

Timothy|3.9.06 @ 3:27PM|#

Hak,

No worries, reading the article does generally aid one's understanding of the issues involved.

In my obtuse way, however, I still think you could make an argument that forcing recruiters into your home violates the third. If you're willing to argue that "soldier" and "quarter" should be read fairly broadly. Forcing me to allow someone into my home, even for a few minutes, is forcing me to quarter them for the duration of their stay.

|3.9.06 @ 3:28PM|#

Hak,

All true, but the cases that gave us the commerce power of today came in the 1930s in response to the New Deal and explicitly overruled Lochner. Most people today associate the pre 1930s commerce clause cases such as the Slaughter House cases as "Lochner" era cases even though Lochner was not decided until 1905. I agree Justice Scalia on the commerce clause. Yet the 1930s cases were wrongly decided. After 70 years however the country has grown so used to and dependent upon that interpretation of the Constitution that immediately overturning the cases would cause such havoc with the government and the economy that it would do more harm than good. The commerce clause cases are one of the few examples of there being a legitimate living Constitution. For this reason I find debate about their validity to be pretty irrelevant although well intentioned.

As I said above, there is nothing remarkable about this case. It adds nothing to the debate over Congressional power. That is my problem with the article.

Timothy|3.9.06 @ 3:37PM|#

Please explain how a narrow interpretation of the commerce clause would cause any problems with the economy other than the "problems" associated with elimination of many rent-seeking opportunities.

bubba|3.9.06 @ 3:49PM|#

Here's a more restrictive interpretation of the opinion.

http://bench.nationalreview.com/archives/091707.asp

Gimme Back My Dog|3.9.06 @ 3:50PM|#

Bubba,

History teaches us that expecting the majority to elect lawmakers that respect the rights of minorities is pretty stupid. This is the fundamental flaw of Democracy and the Framers tried to avoid it by placing very strict limits on the powers of Congress.

|3.9.06 @ 3:55PM|#

RexRhino,

As long as it is legal to start a private university where military recruiters are not allowed, there is not a problem.

The issue is whether that is still an accepted concept.

bubba,

Heh. I love it when the NRO engages in selective wishful thinking.

joshua corning|3.9.06 @ 3:55PM|#

In this case, however, Congress isn't drawing on some general language about some related issue. It's drawing on very clear language directing it to raise an army. Military recruiters on campuses are there to raise an army.

Did joe just defend a conservative (not even a libertarian) agenda point?!?!

hey if i go through fanny may to finance my home does that mean the army can set up shop in my front yard??

That aside i think it is stupid that any collage would want to stop recruitment on thier campasas...but if it is a private collage they should be able to do what they want...and what the fuck shouldn't the gov be able to say who gets financial aid and who doesn't.

i have no idea what side of this issue i want ot be on....prehaps i just want to abolish finantial aid...and the draft along with it.(thank you Allen greenspan)

|3.9.06 @ 3:56PM|#

Timothy,

Eliminating hundreds of billions of dollars worth of federal programs that people have grown to like and depend on by judicial decree is a recipe for a revolution. There is a reason why the Court in the 1930s rolled over for Roosevelt. They knew that the country was in a depression and would not tolerate the Court striking down the New Deal. It is not called "the switch in time that saved nine" for nothing.

|3.9.06 @ 4:01PM|#

The schools can, you know, turn down the federal dollars. They don't have to allow recruiting, they just can't ban recruiters AND get federal money.

yeah the article seems to gloss over that point exept for a little jab at the left which is alwasy fun...but shouldn't congress have the power to say where and when and to who it can spend the money it raises?

|3.9.06 @ 4:02PM|#

joshua - no, joe is being very consistent...it's a statist position, not a conservative one.

(Sorry joe, but someone was prolly gonna say it!) :)

Timothy|3.9.06 @ 4:05PM|#

Oh like the losers on welfare have the resources to stage a revolution. Furthermore, that presumption accepts that the programs work. I am unsure that they, in fact, actually help anyone and thus I'm not sure all that many folks would even notice. Besides the lobbyists, that is.

Is it possible the transition path would be a bit rocky...perhaps, but because I'm not persuaded as to the efficacy of government pork programs, I'm not convinced the sudden elimination of same would be all that disasterous.

|3.9.06 @ 4:17PM|#

First of all, neither I, nor the court, said that Congress's right to act when raising an army in unlimted. They, and I, wrote that it was due the highest degree of deference. Not even the highest degree of judicial deference would allow the taking of the firstborn, etc.

Second, the law does not require colleges to accept military recruiters. It required colleges that accept federal funds to accept military recruiters.

Much of the commentary above, on both sides, seems to elide these two rather significant points.

|3.9.06 @ 4:19PM|#

I'm just surprised that thoreau is not pissed that somebody called him a biologist. I'd be fuming.
I went to a private university and it would have been trespassing for somebody to show up and set up a table w/o permission from the school. In fact, one of the nice things about its privacy was that weren't police on campus unless somebody called 911. Security were a bunch of old farts that didn't care who smoked weed or where. Long live private education (yes I'm sure they received federal money, too).

|3.9.06 @ 4:23PM|#

joe,

The second issue isn't discussed because the rule of the decision isn't the heart of this discussion. RTFA. We're not particularly worried about the specific holding of the decision in other words. Duh. Why you keep on avoiding the nature of the article's criticism and the commentary here is beyond me.

They, and I, wrote that it was due the highest degree of deference.

No, you quoted them.

This is your language:

...Congress is legislating in accordance with a duty/responsibility/power that is spelled out in black and white - the "raise an army" language.

A careful reading of your statement provides for no express or implied limit on such power.

|3.9.06 @ 4:33PM|#

joe,

In other words, proper legal thinking doesn't simply look to the "black and white" language of a particular clause of the Constitution as you do. That you apparently claim that it is merely all about that clause denotes a problematic form of legal analysis.

|3.9.06 @ 4:36PM|#

BaBar,

Biologist, physicist, pscyhologist, dentist, etc. They're all the same. :)

|3.9.06 @ 4:37PM|#

Mr. Doherty's parade of horribles is rather flawed and, frankly, smacks of intellectual laziness.

While the opinion says that Congress' power is at it's apogee when it exercises its power to raise armies and navies, it is not an endorsement of the idea that Congress can pass any law it likes when it comes to the military, especially when the law would violate other provisions of the Constitution. So for instance, it's inconceivable that the military could maintain segregated units because of the Fourteenth Amendment (although this was never tested because Truman dessegregated the military prior to Brown v. Board and its progeny). Likewise, the government would still be required to provide just compensation if it seized your home to build a military base (which is not the same as say commandeering someone's home to use as base of operations while fighting a foreign army, a la Red Dawn -- and by foreign army I mean the Red Army and not al Qaeda sleeper agents).

The strawman that the Third Amendment would provide no respite is a nice touch. I'm not sure if Mr. Doherty went to law school, but there is the principle that court's generally don't address issues that the litigants did not fairly raise. I highly doubt that any of the parties raised an argument that the Third Amendment would operate to bar the entry of military recruiters onto law school campus.

Libertarian hysteria at its best.

|3.9.06 @ 4:44PM|#

Daniel,

...it is not an endorsement of the idea that Congress can pass any law it likes when it comes to the military...

The problem with such a claim is the reality that the Court is indeed loathe to place limits on the warmaking power of the Congress or the actions of the Executive Branch that are national security related. So yes, it may not be a formal endorsement of such, but given the general fashion that the Court responds to national security questions that include rights claims they don't need to.

Your examples seem to be an exercise in card-stacking.

|3.9.06 @ 4:46PM|#

Daniel-The lawyers not claim that the Third Amendement would keep recruiters off campus. Doherty and the posters here didn't either. Speaking of strawmen...
Come to think of it, the rest of your post has next to nothing to do with the issue at hand. But thanks for playing.

|3.9.06 @ 5:09PM|#

Pardon, Hak, but there are two lines of thought here.

1) Does the court's decision imply an unlimited ability to raise an army?

2) How does the campus recruiter fit into all this?

I agreed with joe's initial comment in that the language that congress can exercise some ability to raise an army is pretty specific. That such a power wouldn't include the ability to recruit on public campuses seems absurd.

Now, certainly you don't like any decision that grants the highest deference to the discretion of congress on this or that, but I don't think you need to find specific language in this decision to say that the power to raise armies is completely unlimited. We already know that there is not clear support for the idea that the draft is unconstitution. There may be some, but it is not unambiguous. As a result, we've had decisions that didn't work out the way you or I would prefer. It isn't question begging to note that history. There was ambiguity that the courts resolved not in our favor. Until we have clarifying language added to the constitution, we can expect to continue to remain on the losing end of that argument.

|3.9.06 @ 5:09PM|#

Pardon, Hak, but there are two lines of thought here.

1) Does the court's decision imply an unlimited ability to raise an army?

2) How does the campus recruiter fit into all this?

I agreed with joe's initial comment in that the language that congress can exercise some ability to raise an army is pretty specific. That such a power wouldn't include the ability to recruit on public campuses seems absurd.

Now, certainly you don't like any decision that grants the highest deference to the discretion of congress on this or that, but I don't think you need to find specific language in this decision to say that the power to raise armies is completely unlimited. We already know that there is not clear support for the idea that the draft is unconstitution. There may be some, but it is not unambiguous. As a result, we've had decisions that didn't work out the way you or I would prefer. It isn't question begging to note that history. There was ambiguity that the courts resolved not in our favor. Until we have clarifying language added to the constitution, we can expect to continue to remain on the losing end of that argument.

|3.9.06 @ 5:36PM|#

Jason Ligon,

Pardon, Hak, but there are two lines of thought here.

According to whom?

1) Does the court's decision imply an unlimited ability to raise an army?

No, the issue is whether the dicta implies such. The Court's actual decision is beside the point.

Your second question is merely the particular application of the question as I have stated it. Its not a seperate line of thought.

I agreed with joe's initial comment in that the language that congress can exercise some ability to raise an army is pretty specific.

It would be nice if that were joe's initial comment, but it isn't.

That such a power wouldn't include the ability to recruit on public campuses seems absurd.

Yes, but by what means they can do so even at an institution which takes no money from the state? You know, at one time open censorship of the press in war time was considered constitutional, even if was merely the sort of editorial criticism we see of the Iraq conflict. The Court found this right and proper. In more modern cases it has been more circumspect in what it allows the government to do in this arena. In line with this change your comment on what is and is not "absurd" seems more an argument about what you consider to be "self-evident" as opposed to what is constitutionally proper. Indeed, yours and joe's argument appear to be based on claims that certain things are self-evident.

We already know that there is not clear support for the idea that the draft is unconstitution.

Nor is there clear support for it being constitutional; there was indeed a quite heated debate during and after the Revolution about whether such was properly permitted by a truly free government. Which is why "high deference" language is so problematic.

It isn't question begging to note that history.

Sure it is if that is all that one does and one uses history not as a surgeon uses a scalpel, but as a quarryman uses a sledgehammer. The Court's use of history over time (be it in the Dred Scott case or what have you) has been notoriously and almost uniformally uninformed, biased, and otherwise poorly thought out.

|3.9.06 @ 5:39PM|#

Jason Ligon,

BTW, I think once and for all folks should realize that we have not been discussing the holding of the Court, but the troublesome dicta found in the Court's discussion of the issue.

|3.9.06 @ 5:55PM|#

It's good to see two previously-antagonistic commenters finally agree on something!

"That very day [joe] and [John] became friends with each other, for previously they had been at enmity with each other."

-Luke 23:12 [NKJV]

|3.9.06 @ 6:41PM|#

Just to clarify (if I didn't miss the point in skimming the previous comments). . . .

The opinion doesn't say that Congress could constitutionally force campuses to allow recruiters under any and all circumstances. It says that Congress has broad powers as to recruiting, and that it can require recruitment on campus IF in the process it doesn't violate any other rights under the Constitution, such as free speech. (The Quaker school that someone mentioned above comes to mind as a possible example.)

|3.9.06 @ 7:15PM|#

While I, too, think that Roberts reached too far in claiming that the power to raise armies means that the Congress could demand that schools that are not government-funded accept the recruiters, the state schools that objected to the Solomon Act are great, steaming piles of hypocrisy. The Federal Constitution grants no power to Congress to finance non-military education. The land grant colleges owe their existence to the Morell Act, which was justified as necessary for the training of military officers. Federal aid to elementary and secondary education after Sputnik was justified the same way. The legislation was called The National Defense Education Act. Who takes the King's shilling...

Kevin

|3.9.06 @ 7:17PM|#

1 more thing:

Michael of Albany is still out there.

http://www.royalhouseofstewart.org.uk/biog.htm

Kevin

|3.9.06 @ 7:27PM|#

I know! I'll discuss whatever the hell I want, and if anyone doesn't like it, they don't have to respond.

What a concept.

|3.9.06 @ 7:30PM|#

Basically, the Supremes made the right decision, but for the wrong reason.

They could just have said that Congress is under no First Amendment obligation to subsidize colleges which keep the military off-campus, or give them an inferior level of access. That would have been enough to sustain the Solomon Amendment.

Instead, the Supremes suggested very strongly that Congress has a general authority to send military recruiters onto private property over the owner's objection. Under this interpretation, Congress is showing remarkable restraint by applying the Solomon Amendment only to those institutions which accept federal dough.

To avoid a law applicable to *all* private property, we have to rely on Congress' own sense of restraint, because the Supreme Court isn't going to protect us.

Well, Congressional self-restraint has always worked before.

|3.9.06 @ 7:35PM|#

A somewhat tangential article, but probably interesting to the folks on this thread.

http://3quarksdaily.blogs.com/3quarksdaily/2006/02/below_the_fold_.html

|3.9.06 @ 8:11PM|#

of course, if the federal government in the form of the military weren't claiming the right to discriminate against certain citizens, namely homosexuals, this case wouldn't have ever come to court

|3.9.06 @ 8:22PM|#

"of course, if the federal government in the form of the military weren't claiming the right to discriminate against certain citizens, namely homosexuals, this case wouldn't have ever come to court"

Maybe, maybe not. There have bee people trying to get the military off campus even before gay liberation became a big thing. I would suspect that, if it wasn't gay rights, *some* academics would be looking for some other reason to hassle the military.

|3.9.06 @ 9:37PM|#

BaBar-

I'm trying my hand at biophysics. Biologists are smart people.

|3.9.06 @ 9:39PM|#

It's easy to say that the schools should just refuse federal aid, but consider that that could be made to include federal money in the form of student loans and grants. ie, Congress could specify that students attending a university that does not allow military recruiters would be ineligible for Stafford and Perkins loans and Pell grants. Good luck getting much enrollment if you don't let that piper call the tune.

While in principle I would agree that in accepting federal money one accepts federal control, the situation is a bit different when such a huge proportion of education spending (and the economy in general) passes through the fed's hands.

|3.9.06 @ 9:44PM|#

Indeed, since the Court has held in the past that Congress has the authority to tax income at any rate it chooses, could Congress get around any problems with civil liberties by taxing income at 100% and then demanding that any recipients of "federal aid" relinquish their constitutional rights?

|3.9.06 @ 10:21PM|#

"...it is not an endorsement of the idea that Congress can pass any law it likes when it comes to the military...

The problem with such a claim is the reality that the Court is indeed loathe to place limits on the warmaking power of the Congress or the actions of the Executive Branch that are national security related."

Let me try again. Functionally, the court isn't constrained by much of anything these days. If the thesis is that there is new and scary reasoning in the court's discussion, an obvious counter thesis is a big fat "So what?" As you indicated, the court is loathe to limit warmaking power of either of the other branches. Had there been more moderate language in the discussions, it wouldn't matter one bit the next time the warmaking powers came in front of the court. There is no more reason to be concerned after this case than there was to be concerned before this case.

|3.10.06 @ 10:53AM|#

Compare this to, say, Social Security. The Constitution doesn't explicitly direct Congress to set up a retirement system. The laws it passes in this area are based on an interpretive reading of other clauses which are relevant to the task, but do not explicitly speak to it.

That's not true. SS was and is unconstitutional and SCOTUS knew it.
However, when threatened, they were too wimpy to do the right thing:

http://www.ssa.gov/history/court.html
In another case from 1936 the Court ruled New York state's minimum wage law unconstitutional. The upshot was that major social and political reforms, including social insurance programs, appeared headed for defeat.
...
President Roosevelt's response to all of this was stunning and unexpected[sic]. On February 5, 1937 he sent a special message to Congress proposing legislation granting the President new powers to add additional judges to all federal courts whenever there were sitting judges age 70 or older who refused to retire.
...
The practical effect of this proposal was that the President would get to appoint six new Justices to the Supreme Court (and 44 judges to lower federal courts) thus instantly tipping the political balance on the Court dramatically in his favor. ... But the Court, it seemed, got the message and suddenly shifted its course.

|3.10.06 @ 2:00PM|#

"I would suspect that, if it wasn't gay rights, *some* academics would be looking for some other reason to hassle the military."

Yeah, but can you think of any reason anywhere near as valid as the theocratic discrimination against open non-heterosexuals?

|3.11.06 @ 2:52PM|#

Mr. Le Mur,

Thank you for further demonstrating my point that the Constitutional basis for Congress raising an army in clearer in the Constitution than the basis for setting up Social Security.

But I don't think that point was really in doubt.

|3.12.06 @ 1:59PM|#

The problem that I think this article was trying to address is that in general the supreme court ignores the constitution when it comes to military matters. One can certainly debate whether or not the power to raise armies includes conscription, but even if it did grant that power, the language of the 13th amendment would therefore change or "amend" that power. The 13th amendment prohibits "involuntary servitude." Conscription is, by definition, involuntary. The constitution really has no ambiguity on this point. A draft is unconstitutional.

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