The Third Amendment in the Twenty-First Century: Military Recruiting on Private Campuses

Abstract

Most colleges and universities in the United States must permit the military to recruit on campus if they wish to continue to receive substantial federal funding. A handful of these institutions have mounted a challenge to the Solomon Amendment - the statutory provision that enacts these funding conditions - on the basis of the First Amendment right of expressive association. Although these institutions prevailed in a recent Third Circuit ruling, the Solomon Amendment will likely survive judicial review when the Supreme Court considers the case in the upcoming Term.

If so, Solomon's opponents will either have to accept funding conditions until Congress has a change of heart or pursue a different strategy. The second round of litigation should proceed on the basis of the schools' rights under the Third Amendment, which bars the quartering of soldiers on any house without the owner's consent. This constitutional provision -enigmatic in modern times because of its infrequent invocation - has a rich history and continues to serve limited but important purposes in modern times that are implicated by Solomon's provisions.

The Third Amendment was adopted to cement a separation of military and civilian authority and to protect private property rights from military incursion. The text, history, and purposes of the amendment reveal that its protections extend to private colleges and universities, apply against military recruiters, and provide against a variety of impositions, including those wrought by the Solomon Amendment.

Keywords: solomon amendment, first amendment, third amendment, quartering, civil-military relations, spending conditions, constitutional law

JEL Classification: K40, J71, J78, K49, K00, K10, K19, K30, K39