Recruiters in My Cornflakes!

Time to give McCullough v. Maryland another look


The Solomon Amendment has passed constitutional muster, the Supreme Court declared this week in a unanimous decision (8-0, with Alito benched) written by fresh Chief Justice John Roberts.

If you are not a college president, a gay rights activist, or otherwise obsessed with military recruitment, you can be forgiven for not having Solomon Amendment on the tip of your tongue. In the language of the decision, the 1996 law "specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds."

Some college administrators, upset mostly with the unfair and discriminatory nature of the military's "don't ask, don't tell" policy, which bars openly gay men and lesbians from serving, allied as the Forum for Academic and Institutional Rights (FAIR), and sued to defend their right to bar military recruiters, claiming the Solomon Amendment violated their rights of free speech and association. A lower court said no, the Third District Court of Appeals said yes in a split decision, and it ended up before the Supreme Court as Rumsfeld v. FAIR.

Some on the libertarian side saw the case as a simple vicious irony, smacking these liberal eggheads with the grim reality that "he who pays the piper calls the tune." Indeed, liberals wishing for a different result in this case should consider that a victory for FAIR might have sabotaged some of their larger antidiscrimination goals, since a decision in their favor might have disarmed the government when it tried to enforce, say, Title IX requirements for college sports.

But as it turned out, the decision did nothing to settle any age-old questions of pipers, paymasters, or tunes—questions of what requirements government may link to its largess. The Roberts court said, in essence, that the whole question of federal funding was not relevant to Congress's power to force schools to accept military recruiters. It has that power, inherently. Hillsdale, you are not safe.

The most alarming thing about Rumsfeld v. FAIR, then, has nothing to do with gay rights. Indeed, while those who wanted to cast the case as another tedious instance of the neverending litigation in Conservative Hardnoses v. Wimpy Liberal might think the setback on that front is the only reason to be upset about this decision, much scarier is the court's explicit declaration that Congress could—since the question of recruitment has to do with the military, and when it comes to the military Congress's power is mighty and well-nigh unquestionable—force colleges to allow military recruiters on campus, whether or not there was any Spending Clause nexus involved.

Refighting the battles of McCulloch v. Maryland and its transformation of the "necessary and proper" clause into the "elastic clause" is probably about as lost a cause as that of Bonnie Prince Charlie—more, I suppose, since it's more likely he could be cloned from some preserved tissue sample and reclaim his throne than that U.S. courts will begin taking the Constitution as written seriously. Why should we have expected any different from John Roberts?

And what, really, would such an obviously absurd and impossible proposal as reconsidering McCullough v. Maryland's version of "necessary and proper" get us? Well, for one, a country in which it wouldn't be a clear implication of a Supreme Court decision that it would be perfeclty all right for the federal Congress to demand that military recruiters be allowed to enter any private property at will.

Merely because Congress has the constitutional power to "raise and support Armies" ought not to mean "judicial deference . . . is at its apogee when Congress legislates under its authority to raise and support armies" and thus that there is no need to consider whether forcing recruiters on campus is somehow a necessary part of raising an army, which would be a hard case to make. Or at least a harder one —although one conservative blogger, at least, argues that the need for skilled military lawyers does make it close to necessary to recruit on law school campuses.

As Thomas Jefferson wrote during the debate over the first Bank of the United States, "The constitution allows only the means which are 'necessary,' not those which are merely convenient for effecting the enumerated powers," pointing out that without diligence on this point, Congress could go wild; "therefore it was that the constitution restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory." By that standard—not Court precedent, but a perfectly clear and cogent declaration of original intent and meaning, Chief Justice Marshall be damned—there is no reason whatsoever to presume that Congress should have the power that Rumsfeld v. FAIR insists it does: to force military recruiters on campuses, regardless of whether federal funding is involved.

Indeed, I can't see any particular reason under this decision's logic why the Roberts court would then not unanimously uphold a requirement that military recruiters can enter your store, apartment complex, or home to make their case, whether you want them there or not. (I suppose the Third Amendment might apply, but recruiters don't have to be soldiers, and merely entering your home to talk to you for a spell probably doesn't constitute "quartering.") After all, for reasons unclear from the Constitution itself, the court must place its "deference at the apogee" when Congress is trying to raise an army.

Why is that? Because relating a power to war, for Congress or the president, means never having to say you are sorry—mostly because judges seem to share a primal, extraconstitutional sense that the power to wage war is so holy and necessary it must be protected at all costs. (Hey, you can always vote out those Congressmen who passed a law requiring military recruiters in your bedroom!)

This is also why the military draft isn't considered to be , as on its face it seems to be, a violation of the 13th Amendment's strictures against involuntary servitude, as the Supreme Court declared in Arver v. U.S. (1918) and reaffirmed in declining to hear United States v. Holmes (1968).

I'm sure future courts jealous of our constitutional liberties might apply some complicated weighing of means to ends with some sort of six-part test if such a law is passed, rather than merely saying "military"="OK." No need for something as vivid and limiting as the Jeffersonian meaning of "necessary and proper." Ah well, the constitution is not a suicide pact, after all; nor is it a shopping list, a condominium agreement, or any number of other things. But it was meant to be a document that defined in a strictly limited way what government could do, and also to a significant degree how it could do it.

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.