The Amy, the Courts, and the Constitution: The Evolution of Military Justice

• Author: by the Honorable Walter T. Cox III
• Pages: 01

As we celebrate the Bicentennial afthe Constitutwn, mditary lawyers haue a specml abligotton to promote on understand-mg of the role the mrlitary plays in o w canstttutional system. Zn the followrng artrcle, the Honorable Walter T. Cox III, Judge, UnLted States Court of Milctary Appeals, reflects onthe deoelopment ofAmerican mdrtaryjustLee under the Con-stitutron. Judge Cox originally presented the artrele as a leeture ot the US.

Army M~litary

History ZNtitute, Carl& Barracks, Pennsyluonia, on March 19, 1987. The United States Court of Military Appeals later wed it as the focus of a symposium in honor of the Constitution Bicentennial.

Judge Cox IS uniquely qualified topresent such a discus-sion. Before his tenure on the Court of Mdrtnry Appeals, he served nearly n~neyears on aetiue duty wrth the United States Army. He has also spent fiue years as a practicing eiuilinn attorney and SLX years on the bench as a state trialjudge.

1. INTRODUCTION

   When I was asked to give thia presentation, two thoughts came to mind: First, it seemed a very sensible project to undertake in eelebratian of the bicentenmal year of the Constitution; second, it gave me an opportunity to learn more about the jurisprudence of rnilAwy justice, which is after all, the business of the United States Court of Military Appeals. May I thank the Military History Institute for the unique opportunity to share the results of this project. Truly the development of military law under the Constitution is worth discussing and indeed celebrating this bicentennial year.

   The study of the military and the courts is B broad topic. I suspect an historian would do a complete and thorough analysis of at least one aspect afthe topic. A lawyer is more likely to "try the whale case." What I shall attempt to do is cut out a silhouette, from which perhaps

   *Thu mticle WBB delivered 88 the seventh leelure in the 19th Perspechve Lecture Senea. 1986.1987, at the Umted States Army History Instltuw, Carlmle Bsmacks, Pennsylvania, on March 19, 1987

   you can recognize the subject, notwithstanding that many important details are missing.

   And, perhaps I can leave you with mme significant principles con. eermng the relationship of the Constitution to the military that will help you pursue your careers as the future military leaders of ourgreat nation Before I get into the substance of this discussion, however, allow me to set the stage.

   Modern military and civilian leaders Seem to agree with the can. clusions reached by Colonel Harry Summers, Jr., in his book, OnStrategy. A Critical Analysis afthe Vietnam War. that the people, the politicians and the army-the "trinity"-must all have the will to win if war is to be successfully conducted.' Colonel Don Lundy, your Academic Director, is quoted a8 urging the officers here at Carlisle Barracks to develop a "mind.set" to think strategcally

   If we agree that the national defense "strategy" must have the support of the people, the politicians, and the military in order to be successful. then it logically follows that the mdwidual parts which make up the whole of the national "stratem" must likewise have the support ofthe people, the politicians, and the military 1 would Suggest that this idea applies equally to other national questions such as, whether we should ''draw soldiers or have an all volunteer military: what procurement procedures we should use; what weapons we should employ, and what should be the size of our military force

   I also would suggest that we need to address these same ''strategic" considerations to answer the question, "What system of military justice shall we use to maintain morale and discipline within the ser-vices?" Thus, our System of military justice cannot be viewed solely from the vantage point of the military; it must also be viewed from the perspective of the people and the politicians.

   Once the "trinity" agrees on the strategic aspects of mditary justice. the "tactical" decisions and questions will naturally evolve.3 1 am satisfied that most afua have considered militaryjustice in the tactical sense, i.e, how does military justice affect me and my command? I hope that by presenting to you this background, or history, of the development of military justice in OUT country, you will come to appreciate it a8 a vital mpect of our national defense "stratem."

   Wadstone. 7he Yiiilov .Mind. The Boston Glob Magaime. Feb 8.1987, at 14 63 'Id at 65*By "fseocsl: I mean the application of the Isws to the ie~~lufimof B particular

   problem or case m the same ~ense

   That Clausewm would diatingvish the sfrategli obleetives of mnnmg WBTP from the Laetiral means of achieving the abjectwen

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   19871 THE ARMY AND THE CONSTITUTION

   11. THE CONSTITUTION

   Let's look first at the Constitution. A discussion of the courts and the militaly leads us immediately to articles I and 111.

   Article I11 provides: "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts a8 the Congress may from time to time ordain and establish "4 These courts include the United States district courts, the United States courts of appeals, the Supreme Court, and intereatingly enough, the United States Coun of International Trade

   Article I specifies the powers granted to Congress Of particular interest are clauses 12, 13 and 14 of article I, section 8 Clause 12 grants Congress the power to ''ram and support Armies." Clause 13 authorizes Congress to ''provide and maintain a Navy." Clause 14 confers the power "to make Rules far the Government and Regulation of the land and naval Forces " And, of course, clause 18, which empowers Congress to "make all Laws [that are1 necessary and pmper" ia

   .In Dynes c. Haouer,G an 1857 case, the United States Supreme Court sad:

   These provisions [article I1 show that Congress has the power to provide far the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States, indeed, that the two powers are entirely independent of each other.'

   This case made it quite clear, and It has been often affirmed, that the legality of courts-martial 1s based upon article I of the

   We will look at the relationship between article I and article I11courts later.' I wish to emphasize, however, that the court-martial is

   partmeni or Officer thereof"

   'Dines Y Haouer. 61 US 120 How I 65 rl8571

   but one of many courts in which the military 18 involved Everyday, somewhere, one of the military wmces 1s a party to litigation in an article I11 court, Ln such diverse fields a6 envronmental law. cmlian personnel law, military personnel law, procurement law, medical malpractice law, the Passe Comitatus Act,'" and tort clams l>

   Were our forefathers concerned about the court.martial as it relates to the Constitution? Perhaps It IS clear, however, that when the Constitution and the Bill of Rights were drafted, little mention was made of military justice

   Although section 2 of article I11 enumerates V ~ O U S

   types of cases to be considered by the judiem.1 branch, there 1s no specific mention of military trials or military cases. This has not prevented article I11 courts from finding, in the general language of the article,junsdiction to rewew court-martial proceedings when they are collaterally attacked.13 Because article I authorized Congress to create a separate system of courts for the military, mvilian court review of court.martial proceedings has been limited, until recently, solely to collateral re-wew 14

   Professor Sydney Wise very cogently argues that the drafters of the Constitution were concerned with subordination of the military to civil Thus, the separation of the war powers between the executive branch and the legislative branch-with the President as Commander-in-Chief under article 11, and with Congress empowered to raise, support and regulate the forces under article I-waa not an accidental result It was B carefully planned scheme, following Bntiah experiences of the previous century, to disabuse the potential for military takeover of the government Earl Warren, former Chief Justice of the United States Supreme Court, observed. "[Ilt is not unreasonable to believe that our Founders' determination to guar- xolOOSC $133611932>

   "For example as of September 1936, the Army had 1.271 cases m litigation Report of The Judee Advocate Ganeral Malor General Hueh R Overholf to Secretan of the

   Ham L Rev 1119581

   I8E S Const a17 111. 9 2. provides in part that "Theiudmal Power ahall extend to all Cases, m Law and Eqwfy, enmg vnder this Conrfifvtian

   T h e Military Ju~ice

   Act of 1933, Pub L No 98.209. 97 Stat 1393, far the hral time provides for direct civilian court review OfCOurt.mamd C D ~ V L C ~ ~ D ~ L by penftmg

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   19871 THE ARMY AND THE CONSTITUTION

   antee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights."I6

   In fact, 88 you may recall, the drafters were concerned with the question of whether standing armies should be allowed to exist at all, and, If so, under what circumstances For example, while assigned to his diplomatic post in Paris, France, Thomas Jefferson argued for a prohibition in the Bill of Rights against standing armies la Rec-ognizing the need to protect the new nation from both Indians and foreign nations, however, Congress grudgingly authorized a small army. To illustrate the numerical insignificance of the army, consider that in August 1789 the remnants Of the Continental Amy were expanded to a strength of only 1400 men

   The belief that citizens would lay down the tools of their civilian trades and answer the call to arms...