John Roberts and the Third Amendment: Another Liberal Nightmare
Liberal opponents of federal appeals court Judge John Roberts’ ascendancy to the U.S. Supreme Court, thus far unable to tarnish his reputation, face new hurdles as the U.S. Senate must now confirm him as Chief Justice.
They do not know, and cannot find, his opinion on the Third Amendment to the U.S. Constitution. Yet, as some liberal law school professors have come to understand, the Third Amendment is preceded only by the First (Congress shall make no law…) and the Second (right to bare arms during periods of global warming) in numerical order.
A small but equally astute group of liberal activists has begun to surreptitiously e-mail liberal members of the Senate Judiciary Committee warning that Roberts’ renowned powers of persuasion could sway highly suggestible liberal justices on an issue never before heard by the Supreme Court. Several memos have urged that weaker members of the Judiciary Committee not make eye contact with Roberts during the hearings, lest they become mesmerized by his Sphinx-like gaze.
A judicial nominee with no record (or even a demo tape) on an issue without Supreme Court precedent is considered by numerous liberal thought leaders to be a conservative smart bomb that could have devastating fallout on decades of liberal court rulings.
Indeed, Judge Roberts has never spoken publicly on the Third Amendment. Moreover, thousands of pages of documents surrendered to the Senate Judiciary Committee, and there subjected to ideological litmus tests, handwriting analysis and even infrared proctospectrology, yield no clues beyond the vexing secret Federalist Society code that Roberts is alleged to deploy when numbering his points in complex opinions.
Like most of the Bill of Rights, the Third Amendment is deceptively simple, consisting of only 32 words, four commas and a period: “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.”
“How can any American sleep at night not knowing in advance how the Chief Justice will rule on such a consequential issue?” asked Nan Aron, President of the Alliance for Justice (occasionally confused with DC Comics’ Justice League of
“Barbra Streisand is just beside herself with worry,” Aron continued. “Even actors who live in modest 20,000-square-foot houses are calling me at all hours. After begging them to send another Gulfstream full of money, I don’t know what to say.”
Constitutional scholars have long contended that the Third Amendment was intended by the Founders as a prophylactic to the infamous Quartering Act, interpreted by British soldiers before the American Revolution as an excuse to sleep with colonial virgins, steal Rolexes and confiscate popcorn (which Native Americans called “maize”). Several scholars have even postulated that excessive liberties taken under the Quartering Act became the inspiration for the so-called “Easy Living” school of constitutional interpretation, taught primarily at Harvard by law professors under suspension for plagiarism.
In the last month, however, investigative reporter Seymour Hersh claims to have discovered the frequently rumored “lost” Federalist Papers in a computer hard drive secretly buried by James Madison under Isaac Newton’s apple tree. In the memos, Hersh claims that Madison laid out a conspiracy through which Donald Rumsfeld would eventually become Secretary of Defense, close a host of military bases during the War on Terror and then invoke the Third Amendment to billet thousands of displaced soldiers — including Special Forces snipers, Navy Seals and Marines — in strategically placed waterfront homes of wealthy liberals.
At this writing, not even The New York Times, Hersh’s former employer, has been willing to publish what appear to be little more than the rantings of an angry old man. In early summer, however, the U.S. Supreme Court ruled in Kelo v. City of New London that local governments may seize private property to give to Donald Trump, thus exacerbating liberal fears that those who routinely carry automatic weapons might act with even greater audacity.
“Hersh is going to get some traction with this stuff, particularly if you also factor in the ‘Manchurian Justice’ theory about [Supreme Court Justice David] Souter. Roberts could well be the pre-arranged catalyst triggering Souter back to conservative opinions,” said Newsweek’s Michael Isikoff, who earlier this year was forced to retract charges that Rush Limbaugh had ordered Korans flushed down toilets at Limbaugh’s plush Club Gitmo terrorist resort.
“Liberals have every reason to be concerned. The Third Amendment is serious business, ratified by the states in 1791 and challenged only once (Engblom v. Carey) since then, never making it to the Supreme Court,” said John Yoo, a prominent constitutional law professor at the University of California’s Boalt Hall. “The liberals made a major miscalculation and wasted millions of dollars fretting about abortion, French fries and that damn frog when here’s a guy, Chief Justice for sure, who’s going to take their houses.”
“Bull spectacles,” responded the plain-spoken Fred Dalton Thompson, a former U.S. Senator (R-Tenn.) and star of “Law & Order,” engaged by the White House to shepherd Roberts through confirmation. “Goodness, gracious. Look at the record. The liberal groups and, I might add, the liberal media have been nothing but respectful of Judge Roberts, his family and his career. Had they been deceptive or underhanded or disparaging in any way, then, yeah, he’d vote to take their houses, maybe even their cars and personal trainers. But that hasn’t been the case. Feel the love. It’s mutual. John’s not going to cast the first stone, because what good is a busted up glass house to anyone?”
“Thompson may be correct about Judge Roberts’ judicial temperament and intent,” said UCLA constitutional law professor Eugene Volokh. “And the Fifth Amendment was, before the liberals on the Court masticated it in Kelo, a reasonable protection against property takings. But as a sharply divided Court makes more and more decisions on narrowly framed interpretational lines, the fact that the Third Amendment does precede the Fifth in numerical order could have a highly significant bearing. If Judge Roberts is a true originalist, he can’t escape that. No matter how much he personally loves liberals, he simply cannot allow his personal feelings to cloud his judgment on the Court. If I were, say, Sean Penn or Michael Moore or even Arianna Huffington, I’d be looking for the nearest military recruitment office.”
In keeping with the protocol and demeanor expected of nominees to the Supreme Court, John Roberts would not speak to us for this article, and thus his opinions on the Third Amendment, if he has any, remain as mysterious as the whereabouts of Natalee Holloway, in whose disappearance Roberts has not yet been accused.
Caveat Lector!August 31, 2005
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