Maybe soldiers have rights after all!(Supreme Court Review)

• Author: Jaeger, Nicole E.

Loving v. United States, 116 S. Ct. 1737 (1996)

1. INTRODUCTION

   In Loving v. United States,(1) the United States Supreme Court held that the separation of powers principle does not preclude Congress from delegating its constitutional authority to the President to define the aggravating factors required under the Eighth Amendment to permit the imposition of a statutory death penalty in military capital cases.(2) In reaching its principal holding, the Court assumed that the cruel and unusual punishment provision of the Eighth Amendment(3) and the Court's death penalty jurisprudence constitutionally require the current military capital punishment scheme to include aggravating factors.(4) Having assumed the applicability of the Eighth Amendment, the Court next determined that the delegation doctrine did not preclude the President from prescribing the constitutionally required aggravating factors.(5) The Court then found that Congress explicitly exercised its power to delegate authority to the President in three specific provisions of the Uniform Code of Military Justice (UCMJ),(6) and further, that the President, acting as Commander-in-Chief, did not need further Congressional guidance in the exercise of that authority.(7)

   This Note argues that the Court's preliminary assumption--that Furman v. Georgia(8) and its progeny are applicable in the military context--is the most notable aspect of this case. The Court has never before squarely held that a soldier has any constitutional rights when he is court-martialed, or indeed any constitutional rights at all. When confronted with military issues, the Supreme Court has consistently adhered to a highly deferential "hands-off" standard of review.(9) In doing so, the Court has rarely hesitated in denying constitutional protections to members of the armed forces.(10) What is thus most striking about Loving is that the Court declined to follow its customary course of deference to the military at the expense of otherwise applicable constitutional norms. Instead, the Court suggested that the requirements of the Eighth Amendment as articulated in Furman apply to the military's justice system.(11) Two of the concurring opinions reflect the controversial nature of the Court's assumption: justice Thomas directly questioned the assumption that the Eighth Amendment constitutional requirements of Furman apply to the military.(12) On the other extreme, four Justices, in a concurrence authored by Justice Stevens, questioned the extent to which capital cases should even fall within courts-martial jurisdiction.(13)

   This Note addresses the Court's typically deferential approach to military issues and suggests that the Court's deviation from that stance might best be understood as a recognition by the Court that the traditional standard of deference may be inappropriate in a military capital case, given the realities of today's military establishment and the unprecedented recent expansion of courts-martial jurisdiction.

2. BACKGROUND

   1. HISTORICAL DEVELOPMENT OF AMERICAN MILITARY LAW

      1. Origins of Military Law

         The military justice system predates the United States Constitution by at least several hundred years. Military judges existed as least as early as the Roman Empire, when Roman soldiers were subject to the absolute will of their commanders.(14) In England, after the Norman Conquest, military justice was a matter of Royal prerogative.(15) Richard Coeur de Lion's Ordinance of 1190 deterred brawling among his crusaders by punishing offenders with "a series of penalties ranging from fines and ignominious expulsion from the army, to tarring and feathering, loss of a hand, and burial alive."(16) The first comprehensive articles of war were promulgated by Richard 11 in 1385.(17) The Articles of 1385 "punished a variety of military offenses, such as disobedience of orders, pillage, and theft . . . with penalties that progressed from amputation of the left ear for minor transgressions to hanging, drawing and beheading" for major offenses.(18) In the sixteenth and seventeenth centuries, these crude beginnings were improved upon with the implementation of more elaborate and less barbarous military codes. The codes,(19) issued by military commanders acting under royal commission, were not fixed; rather, "each war, each expedition had its own edict" whose jurisdiction was limited to that particular expedition.(20) These codes governed the conduct of soldiers in times of war; however, in times of peace, "[t]he Common Law made no distinction between the crimes of soldiers and those of civilians .... All subjects were tried alike by the same civil courts ...."(21)

         Parliamentary law began to govern military justice in 1689, when William and Mary, in need of a standing army and the power to secure its discipline, accepted the Bill of Rights which required Parliament's consent to the raising and keeping of armies.(22) In 1689, Parliament passed the Mutiny Act, which provided for the establishment of a standing army, as well as provisions for its discipline.(23) The Mutiny Act, however, gave courts-martial very limited jurisdiction.(24) Courts-martial jurisdiction applied only to regular soldiers, and only to strictly military offenses--sedition, desertion, and mutiny.(25)

         The Framers of the United States Constitution were mindful of the limits Parliament set on the peacetime jurisdiction of courts-martial over capital crimes. Having themselves been subjected to the intemperance of military power in the colonies, the Framers were also aware of the dangers of autocratic military justice, and thus, harbored a deep distrust of military tribunals.(26) Among the wrongs cited in the Declaration of independence were the subordination of civil power to the military, the quartering of troops in times of peace, and the commission of innumerable cruelties through the hands of the King's mercenaries.(27) Indeed, the Revolutionary War was fought, in part, as a protest against standing armies.(28) The experience of the Revolutionary War provided the background for what would become the "standing army" debate at the Constitutional Convention over whether to have a standing army or a militia.(29) Having rebelled against oppressive British Rule, many citizens feared the maintenance of a peacetime army.(30) At the same time, however, many citizens saw the War as evidence that the new nation needed a strong standing army.(31) Such thoughts were upper most in the minds of the Founding Fathers in 1775, when they passed the first legislation of the Continental Congress, which dealt extensively with discipline in the Military.(32) The Framers expressly distrusted the notion of a standing army.(33) Yet, recognizing the need for a means to discipline the troops swiftly and without the required formalities of civilian justice, the Continental Congress adopted the American Articles of War, which authorized a national armed force.(34)

         The Framers' distrust of unmitigated military power found expression in the Constitution, which provided for the careful diffusion of the war powers between the three separate branches of government.(35) The Framers purposely provided a separate court system for the armed forces and did not include military courts in Article III, which established the federal judiciary.(36) Instead, Congress established courts-martial(37) under its Article I powers,(38) which grant Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces."(39) Historically, the function of the military justice system was to ensure disciplined troops, and the court-martial was a tool that could be used at the commander's complete discretion to instill fear and obedience in his soldiers.(40) The prevailing view among military commanders and politicians alike was that in order to be effective, military justice must be swift and harsh.(41) Throughout the 1800's, commanders of the military accepted and vigorously defended the brutal nature of military justice.(42) Despite some failed attempts to reform manifest deficiencies in the military justice system,(43) interest in reform did not develop for almost another century.(44)

         In the early part of the twentieth century Brigadier General Samuel T. Ansell, the acting judge Advocate General of the Army, proposed a drastic change to the 1916 Articles of War.(45) Critical of the Army's lack of a formal appeals process for courts-martial convictions and the lack of disciplinary and sentencing uniformity throughout the different command units, Ansell advocated creation of a centralized mandatory review system in the form of an appellate tribunal.(46) Ansell's proposals, however, were not adopted in the 1920 Articles due largely to the opposition of Provost Marshall General Crowder, the principal author of the 1916 articles and an outspoken defender of the then-existing system.(47)

         During World War II, the nation witnessed its largest military mobilization in history.(48) More than 16 million men and women volunteered for, or were conscripted into, active military service.(49) By the end of the war, military courts had convened over two million courts-martial,(50) and the tens of thousands of citizens who had been subjected to the military's system of discipline returned to tell stories of the grave injustices perpetrated by the military courts.(51) Widespread disenchantment with the military justice system finally instigated a movement towards reform,(52) which culminated in the enactment of The Uniform Code of Military Justice (UCMJ) in 1950.(53) The enactment of the UCMJ represented the first significant change in the administration of military discipline in the American armed forces since the adoption of the Articles of War by the Continental Congress in 1775.(54) The primary drafter of the UCMJ, Professor Edmund Morgan, had served under General Ansell and incorporated into the UCMJ many of the reforms first proposed by General Ansell...